Facing pressure, NY Gov. Cuomo cedes control of sexual harassment investigation

Jon Campbell, New York State Team
·9 min read

ALBANY, N.Y. – New York Gov. Andrew Cuomo on Sunday agreed to cede control of an investigation into sexual harassment allegations lodged against him by two former aides, granting Attorney General Letitia James the ability to select a lead investigator after previously resisting calls to do so.

Cuomo, a Democrat, had faced calls from elected officials of both parties to acquiesce to an independent investigation after two women went public with claims he harassed them – and delivered a kiss on the lips without consent – when they worked for him.

Saturday, Cuomo declined to refer the matter to state Attorney General Letitia James, instead directing it to former U.S. District Judge Barbara Jones, a former partner at a law firm that included one of the governor's closest advisers.

By Sunday morning, Cuomo ditched his plan for Jones to investigate amid criticism.

But he still refused to give up total control, instead laying out a plan for James (who is independently elected) and Chief Judge Janet DiFiore (who Cuomo appointed) to jointly select a private attorney with no political affiliation to investigate — a plan James roundly rejected.

Around 5:30 p.m. EST Sunday, Cuomo's office said he would allow James to select a private attorney to investigate him, agreeing to give the lawyer and their colleagues full investigatory power under state law.

"The Governor's office wants a thorough and independent review that is above reproach and beyond political interference," Cuomo special counsel Beth Garvey said in a statement. "Therefore, the Governor's office has asked Attorney General Tish James to select a qualified private lawyer to do an independent review of allegations of sexual harassment."

Garvey's statement came hours after James called for a formal referral under state Executive Law, which gives the governor the ability to refer matters of "public justice" to the attorney general for investigation, complete with the ability to compel people to testify with subpoenas.

By the end of the day, James said she expected to receive the referral she was seeking.

"This is not a responsibility we take lightly," she said in a statement. "We will hire a law firm, deputize them as attorneys of our office, and oversee a rigorous and independent investigation."

Cuomo asks James to deputize a private attorney

Without the referral, James' office could not have performed an investigation with subpoena power.

In her statement Sunday evening, Garvey said Cuomo would ask James to deputize the private lawyer she selects, as well as other lawyers from the attorney's firm. They would then have all the powers granted under state law.

By refusing to refer the matter to James earlier in the day, Cuomo was taking a different tack than his predecessor, Gov. David Paterson, who had tasked the attorney general in 2010 with probing a domestic-violence scandal within the governor’s office. Gov. Eliot Spitzer also faced an attorney general investigation in 2007.

And nobody would have known about the legal parameters better than Cuomo: He was the attorney general at the time of both previous investigations.

State and federal lawmakers from both parties immediately had raised concern over Cuomo's Saturday decision to refer the sexual harassment matter to Jones, with some questioning whether Cuomo would give the former judge full independence to follow wherever the facts may lead.

Cuomo's new plan Sunday afternoon did not quell those concerns: DiFiore, the former Westchester County district attorney, was appointed to her powerful post by Cuomo in 2015 and the two have been longtime political allies.

There was also some constitutional concern: If Cuomo were to face impeachment, as some lawmakers have called for, the impeachment court would be made up of the state Senate and the Court of Appeals, including DiFiore.

Lawmakers wanted Cuomo to cede full control

Lawmakers of both parties in Washington and Albany called for Cuomo to cede to a truly independent investigation.

Among them were the state's two U.S. senators – Majority Leader Chuck Schumer and Sen. Kirsten Gillibrand – and the Democratic and Republican leaders of the state Legislature, all of whom signaled late Saturday and Sunday they would like to see the matter referred to James, the Democratic attorney general.

Also joining the call were House Judiciary Chair Jerry Nadler, D-N.Y., and Rep. Alexandria Ocasio-Cortez, D-N.Y., among many others – including James herself.

"As has become standard practice in the State of New York when allegations relate directly to the Executive, Governor Cuomo should refer the matter to the Attorney General, who should, in turn, appoint an independent investigator," Nadler said in a statement.

On Sunday, Ocasio-Cortez tweeted an investigation should not be "led by an individual selected by the Governor, but by the office of the Attorney General."

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Cuomo faces two scandals at once

New York Gov. Andrew Cuomo defends a decision to require nursing homes to accept patients recovering from COVID-19 during a news conference Feb. 19.
New York Gov. Andrew Cuomo defends a decision to require nursing homes to accept patients recovering from COVID-19 during a news conference Feb. 19.

Cuomo has been embroiled in scandal on two fronts in recent weeks:

His administration faces a federal investigation for its handling of COVID-19 in nursing homes, which was launched after top aide Melissa DeRosa acknowledged holding back death data and information from lawmakers and the public after receiving an inquiry from the U.S. Department of Justice last year.

Two former aides, Lindsey Boylan and Charlotte Bennett, accused Cuomo of sexual harassment.

Boylan wrote an online essay Wednesday claiming Cuomo made inappropriate comments to her and once kissed her on the lips without her consent while she worked for his administration from 2016 to 2018.

In an article published Saturday, Bennett told The New York Times the governor had asked her suggestive, line-crossing questions about her romantic relationships and preferences last year, while the state was in the midst of its response to the pandemic.

Cuomo said in a statement issued late Saturday that he "never made advances toward Ms. Bennett nor did I ever intend to act in any way that was inappropriate." His press secretary issued a blanket denial of Boylan's claims.

"I ask all New Yorkers to await the findings of the review so that they know the facts before making any judgments," Cuomo said. "I will have no further comment until the review has concluded."

More: Ex-aide accuses Andrew Cuomo of unwanted kiss, sexual harassment

More: Lawmakers press NY health commissioner on state's response to COVID-19 in nursing homes

Lawmakers want a more independent review

New York state Senate Majority Leader Andrea Stewart-Cousins wants a "truly independent investigation" into allegations against Gov. Cuomo.
New York state Senate Majority Leader Andrea Stewart-Cousins wants a "truly independent investigation" into allegations against Gov. Cuomo.

When Cuomo made his initial announcement Saturday, lawmakers questioned Jones' independence, noting she served as partner at New York City law firm Zuckerman Spaeder at the same time as Steven Cohen, Cuomo's former top aide and one of his most trusted confidants.

The state Senate's majority leader, Andrea Stewart-Cousins, called for a "truly independent investigation" to begin immediately. Her spokesman, Mike Murphy, said Cuomo's pick of Jones did not satisfy that requirement.

The "Attorney General's Office should handle it," Murphy wrote in an email.

State Assembly Speaker Carl Heastie's spokesman, Mike Whyland, said the attorney general should get to pick who does the job.

"The Speaker believes the Attorney General should make an appointment to ensure that it is a truly independent investigation," Whyland wrote in an email.

"The review suggested by someone handpicked by the governor himself, is an outrageous, completely unacceptable idea," Senate Minority Leader Robert Ortt said in a statement. "We need a truly independent investigation, which is why I continue to support the calls of my colleagues for a Special Prosecutor appointed by the Attorney General."

Lawmakers at the New York state Capitol protest the governor's attempts to keep a hand in the investigation into allegations against him.
Lawmakers at the New York state Capitol protest the governor's attempts to keep a hand in the investigation into allegations against him.

Democratic state Sen. Alessandra Biaggi, , who worked as an attorney in Cuomo's office, called for the governor's resignation.

"While a truly independent investigation may uncover more evidence or instances of abuse, the existing details are sufficient for me to form my conclusion," Biaggi said in a statement. "As a New Yorker, a legislator, Chair of the Senate Ethics and Internal Governance Committee, and a survivor of sexual abuse, I am calling for Governor Cuomo to resign.”

More: NY lawmakers call for investigation of harassment accusation against Cuomo, but who would do it?

More: Nursing home scandal puts dent in Andrew Cuomo's job approval rating

Cuomo had received referral as AG

“There must be a truly independent investigation to thoroughly review these troubling allegations against the governor,” New York Attorney General Letitia James says.
“There must be a truly independent investigation to thoroughly review these troubling allegations against the governor,” New York Attorney General Letitia James says.

In her statement Sunday, James called for a referral under Section 63-8 of the state Executive Law, which lays out the governor's ability to refer matters to the attorney general in a way that cedes broad authority and decision-making power.

Such a referral would give James total control over who is selected to commence the investigation. Cuomo's plan would limit James and DiFiore to selecting a private-practice attorney with no political affiliation.

"Given state law, this can only be accomplished through an official referral from the governor’s office based on State Law (§ 63-8) and must include subpoena power," James said. "I urge the governor to make this referral immediately.”

Cuomo, who has been governor since 2011, was tasked with investigating governors twice during his one term as attorney general from 2007 through 2010.

In 2007, then-Senate Majority Leader Joseph Bruno asked Cuomo to investigate Spitzer's role in disseminating information about his travel on a state airplane. Within three weeks, Cuomo issued a report that concluded Spitzer's staff had ordered State Police to keep special records of Bruno's travel.

Two and a half years later, Paterson asked Cuomo to investigate when the then-governor and his advisers faced questions about their actions after an aide, David Johnson, was accused of domestic violence.

AG is independently elected in New York

Cuomo endorsed James' run for office in 2018.

James flexed her independence Jan. 28, when she issued a report on COVID-19 in nursing homes that chastised Cuomo's administration for failing to tell the public the number of residents who had died in hospital and hospice settings.

Before the report, Cuomo's administration had released only the number of residents who had died of COVID-19 in the nursing homes themselves. Within hours of James' report, Health Commissioner Howard Zucker revealed about 4,000 residents had died in hospitals or hospice, too.

The Attorney General's Office has served as a launching pad for future governors, including Cuomo and Spitzer.

James has never publicly expressed interest in the governor's job, though she joked last week that others have referred to AG as "aspiring governor."

"We have been putting our heads down, not focusing on the politics but focusing on the law," James said Feb. 22 at the DealBook DC Policy Project.

More: New York COVID-19 nursing home deaths undercounted by as much as 50%, state AG investigation finds

Jon Campbell is a New York state government reporter for the USA TODAY Network. Follow him on Twitter at @JonCampbellGAN.

This article originally appeared on New York State Team: Andrew Cuomo cedes control of sexual harassment probe to AG James