Gawker report about Cuomo swearing-in prompts new questions about corruption investigations, transparency

In January 2013, Gov. Andrew Cuomo (D-NY) presented his Opportunity Agenda in Albany three weeks after he signed his oath of office. Source : Official Photograph/New York Governor's Office/Flickr

In January 2013, Gov. Andrew Cuomo (D-NY) presented his Opportunity Agenda in Albany three weeks after he signed his oath of office. Source : Official Photograph/New York Governor's Office/Flickr

By LOUIS FLORES

An anonymously-sourced report on Monday raised new questions about the legitimacy of the incumbency of Gov. Andrew Cuomo (D-NY).

The report, published by Gawker, postulated that due to the possible existence of a nonprosecution agreement between Gov. Cuomo and the U.S. Attorney's Office for New York's southern district, Gov. Cuomo may have secretly admitted to a crime that should cause him to vacate his office.

In recent years, the U.S. Attorney's Office has been leading the charge to investigate political and campaign corruption across New York State. Those investigations, led by U.S. Attorney Preet Bharara, have seized as one of their principal targets the "cauldron of corruption" up in Albany.

The investigations by the U.S. Attorney's Office have claimed the careers, amongst others, of the now late State Sen. Thomas Libous (R-Binghamton), the former deputy majority leader in the State Senate ; State Sen. Malcolm Smith (D-Cambria Heights), who briefly served as majority leader in the State Senate ; State Sen. Dean Skelos (R-Rockville Centre), another former majority leader in the State Senate ; and Assemblymember Sheldon Silver (D-Lower East Side), the former speaker of the State Assembly.

With each successive corruption prosecution, it has appeared as if U.S. Attorney Bharara has increasingly focused his attention on the "three men in a room," who are comprised of the top two State legislative leaders and Gov. Cuomo -- who, collectively, have tolerated all this corruption at the same time as they have governed Albany, according to Government reform activists.

Despite controversies surrounding each of State-sanctioned gambling operations, the premature closure of the Moreland Commission, and the Buffalo Billion program, for example, Gov. Cuomo has thus far escaped capture from Federal anti-corruption prosecutors -- to the consternation of Government reform activists, even as the other "two men in a room" have faced criminal charges, have stood for trial, and have been convicted of their crimes.

As noted in the Gawker report, speculation exists that Gov. Cuomo has been involved in corruption. However, it was not noted in the Gawker report that Government reform activists had long questioned the lawfulness of Gov. Cuomo's swearing-in ceremony following his November 2014 reëlection.

In order to dispel some of the questions about the legitimacy of Gov. Cuomo's incumbency, at least superficially, Gawker requested under the State's Freedom of Information Law copies of the oaths signed by Gov. Cuomo, which Gawker received and publicly published online, representing as evidence that Gov. Cuomo has been lawfully sworn into office.

Long before publication of the Gawker report, some Government reform activists had questioned whether the process followed by Gov. Cuomo for his swearing-in ceremony after his 2014 reëlction was incomplete. Despite having made plans to hold several swearing-in ceremonies, Gov. Cuomo chose to cancel the first ceremony scheduled for 31 December 2014 in Albany and, instead, filed his written oath-taking with the New York State Department of State. This allowed Gov. Cuomo to reportedly spend time with his ailing father.

While his father, the now late former Gov. Mario Cuomo (D-NY) was literally on his death bed on the last day of his life, Gov. Cuomo attended two ceremonies in which he and Lt. Gov. Kathy Hochul (D-NY) delivered inaugural addresses, the first at the new World Trade Center in Manhattan, followed by another ceremony at the History Museum in Buffalo, seemingly contradicting the younger Gov. Cuomo's need to cancel ceremonies in order to spend time with his father.

The transcript of Gov. Cuomo's remarks at the World Trade Center did not include recitation of either the oath, as required in Article XIII, Section 1 of the State Constitution, or of the certification, as required by Public Officers Law § 78, but photographs on Gov. Cuomo's Web site depict him being sworn into office. A report filed by the journalist Jimmy Vielkind for POLITICO New York noted that Lt. Gov. Hochul was sworn into office at the Buffalo ceremony.

The last-minute cancellation of the first, official swearing-in ceremony in Albany in favor of effecting a mere document filing and the later twin ceremonies, reportedly for purposes to generate favorable media mentions, raised questions in the minds of Government reform activists about the legitimacy to Gov. Cuomo's swearing-in, and those questions were posted online at that time then on the Twitter social media network by Government reform activists in tweets that were largely shared with the media.

Those questions about process may now be relevant, given the postulation in the Gawker report that Gov. Cuomo may have, at some point, entered into a plea agreement with Federal prosecutors that might have placed in jeopardy his incumbency in office.

To many Government reform activists, it remains unbelievable that Gov. Cuomo has managed to escape criminal prosecution for the multiple controversies during his tenure as the State's highest-elected executive official, particularly after he was reportedly warned in mid-2014 by U.S. Attorney Bharara against engaging in obstruction of justice pertaining to alleged activities by Cuomo administration officials to tamper with witnesses regarding the premature closure of the Moreland Commission. 

The Moreland Commission was a corruption-fighting panel that Gov. Cuomo formed to great fanfare largely in response to the anti-corruption prosecutions by the office of U.S. Attorney Bharara, but which Gov. Cuomo summarily shuttered after reaching a backroom budget deal with former State Sen. Skelos and former Assembly Speaker Silver.

Given the juxtaposition of the closure of the Moreland Commission with the relentless prosecutorial work of the U.S. Attorney's Office, the entire State was transfixed during 2014 with the contradictory responses from Albany officials and Federal prosecutors to the runaway problem of corruption in the State's capital.

Against that backdrop, U.S. Attorney Bharara and his team of investigators and prosecutors began stealthily assembling prosecution cases against former State Sen. Skelos and former Assembly Speaker Silver. Whilst Gov. Cuomo has managed to remain in office throughout, he has hardly endured unscathed.

Gov. Cuomo's political reputation was dealt a severe blow in 2014 when he was reëlected by a much slimmer margin of victory than he had hoped after he was challenged to a primary election contest by an anti-corruption law school professor, Zephyr Teachout. He also faced a general election challenge from his political right, from GOP gubernatorial candidate, County Executive Rob Astorino (R-Westchester), and from his political left, from Green Party gubernatorial candidate, Howie Hawkins. After having survived those embarrassing challenges to his hegemonic hold on power, Gov. Cuomo somehow pulled the strings to get his name publicly cleared of any wrongdoing, at least in respect of his reported involvement with the premature closure of the Moreland Commission.

Before Federal Bureau of Investigation Director James Comey outraged the nation last July by recommending no criminal charges against former First Lady Hillary Rodham Clinton over her use of an unsecured, private e-mail server to send, receive, and store classified information, triggering disgust at how the criminal justice system allows establishment politicians to get away with committing major crimes, Gov. Cuomo arranged for a similar disposition from U.S. Attorney Bharara last January with respect to the Moreland Commission, outraging New York-based Government reform activists.

It remains unknown how much influence from Washington played a role in U.S. Attorney Bharara clearing Gov. Cuomo of wrongdoing. U.S. Attorney Bharara has long claimed that his office enjoys the most autonomy of any Federal prosecutors' office in the nation. Yet, as has been shown with the unprosecuted wrongdoing of major establishment politicians, principally Gov. Cuomo and, to some extent, his former right hand man, Lawrence Schwartz, and of major corporations, the U.S. Department of Justice has demonstrated an unwillingness to hold the most powerful political and corporate figures accountable for corruption.

How large of a crime could Gov. Cuomo have committed ?

The Gawker report was premised on Gov. Cuomo having admitted to a crime that would have caused him to vacate his office.

Following publication of the Gawker report, Fordham University School of Law professor John Pfaff noted on Twitter that imprisonment in a state correctional facility and conviction of a felony were grounds for elected officials in New York to vacate their office.

Since Gov. Cuomo has obviously not been sentenced to state prison, the only way for the Gawker report to hold true would be if Gov. Cuomo has pleaded guilty to a felony. But the Gawker report stopped short of speculating what crime could have Gov. Cuomo have committed that would have constituted a felony.

By way of comparison, when former State Sen. Skelos and former Assemblymember Silver were convicted on all counts of criminality that they had respectively been charged, one of the principal charges that they commonly shared was for honest services fraud, the commission of which is considered a felony. Given State law governing the incumbency of elected officials, when each of former State Sen. Skelos and former Assemblymember Silver were convicted on those counts, they were automatically forced to vacate their respective offices.

There was no mention by Gawker if information exists to determine whether Gov. Cuomo has engaged in or admitted to a crime of a similar level.

Nevertheless, the Gawker report noted that when Federal prosecutors investigate elected officials, generally, prosecutors have the discretion to negotiate the resignation of an elected official as one desired outcome of an investigation, should it be warranted. Left unexamined by the Gawker report was whether Gov. Cuomo has agreed to resign from office in the future, whether he has pleaded guilty to a crime less severe than a felony, or whether an information statement was signed or a form of an information statement was agreed to be signed at a later date that either does not mention the commission of a felony or that has yet to be filed with a Court.

Under some guidelines applicable to U.S. Attorneys, Federal prosecutors are authorized to prosecute significant Government officials for State crimes if the prosecution of those crimes would pose a problem for local prosecutors.

Therefore, even if Gov. Cuomo were to have pleaded guilty to a crime lesser than a felony -- one that even fell under State criminal statutes -- Gov. Cuomo could still conceivably be forced to face the guidelines applicable to Federal prosecutors to reach a disposition, and that could conceivably include his possible resignation.

Questions for this report were submitted by Progress Queens to both the U.S. Attorney's Office and to Gov. Cuomo's office, but those questions were not answered. On Twitter, Richard Azzopardi, a spokesperson for Gov. Cuomo, derided the Gawker report as, "Crackpot clickbait."

Also left unexamined by the Gawker report was the fact that precedent exists for U.S. Attorney Bharara to agree to allow an elected official to serve in office, if the elected official has agreed to coöperate with Federal prosecutors as part of a larger criminal investigation.

For almost four years, former Assemblymember Nelson Castro (D-The Bronx) was allowed to serve in office after he was reportedly indicted by a grand jury, and his incumbency was allowed to continue, because he was providing information, including information from a wire recording device, to Federal prosecutors for a larger corruption investigation. In exchange for having coöperated with Federal authorities, former Assemblymember Castro was allowed to more respectfully resign from office instead of having been forced to possibly vacate his office upon conviction of a felony. Former Assemblymember Castro's resignation still achieved one goal of Federal prosecutors, which calls for the removal of an elected official from office, and former Assemblymember Castro later managed to avoid a prison sentence after a Federal judge reviewed his plea agreement, taking into consideration his coöperation with authorities.

While Assemblymember Castro was allowed to continue serving in office, Federal prosecutors allowed him to run for reëlection during two election cycles, disenfranchising Bronx voters by denying voters material information about the incumbent candidate, according to Government reform activists.

When U.S. Attorney Preet Bharara commented generally about the corruption-fighting prosecutions being undertaken by his office during a speech at New York Law School in January 2015, his office later faced a backlash from criminal defense attorneys and a Federal judge for having attempted to influence public opinion about Federal corruption charges that had been filed against then New York State Assembly Speaker Sheldon Silver (D-Lower East Side). Source :  Louis Flores/Progress Queens/File Photograph

When U.S. Attorney Preet Bharara commented generally about the corruption-fighting prosecutions being undertaken by his office during a speech at New York Law School in January 2015, his office later faced a backlash from criminal defense attorneys and a Federal judge for having attempted to influence public opinion about Federal corruption charges that had been filed against then New York State Assembly Speaker Sheldon Silver (D-Lower East Side). Source :  Louis Flores/Progress Queens/File Photograph

At a speech delivered on 23 January 2015 at New York Law School, U.S. Attorney Bharara addressed criticism of his office's arrangement with Assemblymember Castro.

U.S. Attorney Bharara said, "We make decisions all the time about when to be overt in an investigation and when to remain covert, because we have sometimes competing principles and intents," adding in relevant part that, "We, all the time, get information about someone engaging in bad conduct. And, sometimes, it's the case you can't prove it beyond a reasonable doubt. And so you let it go on," he said, referring to the criminal conduct, "and you monitor it, and you make sure that people are not unduly harmed in the broader interest of trying to make sure you can gather and develop enough evidence so that when it becomes public, that person doesn't flee, that person doesn't destroy evidence, and that person can be held accountable and put in prison for as long as is deserved."

U.S. Attorney Bharara mentioned other considerations faced by his office, in particular noting that when the wrongdoing possibly involves multiple individuals, that can complicate the judgment call about deciding to allow wrongdoing to continue.

"We're not only just be talking about that person," U.S. Attorney Bharara said, referring to the first hypothetical suspect to come to Federal prosecutors' attention in any given case, adding, "because sometimes it comes to light that someone is engaged in bad conduct, but he or she is not the only one, or he or she is at the bottom of the totem pole, and there are six other bad guys, and, sometimes, that is true in violence cases and organized crime cases and in cases not just about money and graft, but cases that affect people's lives. And if you don't do it properly, people will die. And, sometimes, with great care and sensitivity, you have to make judgment calls of how long you let something go on, whether it's a gun-running operation or it's a crew of the Bonanno crime family, because the goal is to hold responsible and to incapacitate as many people as possible, who are responsible for breaking the law and terrorizing people, who are breaking faith with the public."

Regarding the specific case of Assemblymember Castro, U.S. Attorney Bharara described the decision-making process as "a particularly difficult struggle, because, at the time, if I recall correctly, we did not have all the evidence with respect to other people, who engaged in bad conduct, and so it is a legitimate question as to whether or not we should have thrown up our hands and called it a day and exposed that person and then gone home, as opposed to letting it run a little longer, so a number of other, additional people, including another public official, could be charged and held accountable."

U.S. Attorney Bharara asserted that, "We thought long and hard about it," referring to the judgment call that had to be made about allowing Assemblymember Castro to continue to serve in office during an ongoing corruption investigation, adding that, "We didn’t do it in a cavalier way or in a casual way. We thought about it a lot, because enfranchisement is important."

Given U.S. Attorney Bharara's own, self-professed considerations, it would be possible for Gov. Cuomo to serve in office under an arrangement with Federal prosecutors, provided, however, that he was supplying information that would be considered material to Federal prosecutors for another, larger investigation that would serve a greater purpose.

Amongst the reported, ongoing Federal corruption investigations currently underway in Albany include probes that have centered around numerous political operatives with close ties to Gov. Cuomo, including, but not limited to, his former enforcer, Joseph Percoco ; a former political aide-turned-lobbyist, Todd Howe ; and a campaign supporter, G. Steven Pigeon.

Activists' increasingly vocal objections to the corrupt establishment

In response to the Gawker report, some on social media sympathized with Gov. Cuomo's changes to his swearing-in ceremonies due his father's ailing health. Some Government reform activists rejected that sentimentality, claiming that the elder Gov. Cuomo's passing had nothing to do with the younger Gov. Cuomo's apparent desperation to recover from his political and legal setbacks in 2014.

Still yet others on Twitter disparaged Government reform activists with the pejorative of "truthers" for having demanded clarity around the legality to Gov. Cuomo's incumbency, given the persistent allegations of wrongdoing by his administration.

For their part, some Government reform activists further speculated that their belief that Gov. Cuomo may have escaped prosecution based on some form of coöperation with Federal prosecutors was validated by the postulation in the Gawker report.

According to information obtained by Progress Queens, Government reform activists also speculated as to the identity of the anonymous source cited in the Gawker report. Some activists looked for possible motivation to help determine the possible identity of the source.

In New York, Government reform activists have increasingly challenged establishment politics in the last few election cycles, even in the face of plunging voter turnout, first against former New York City Council Speaker Christine Quinn (D-Chelsea) during the 2013 New York City mayoral race, then against Gov. Cuomo's 2014 gubernatorial reëlection race, and culminating now against the presidential campaign of former First Lady Clinton. Whilst the identity of the source of the Gawker report remains unknown, the general sentiment against establishment politicians, who are viewed as corrupt, continues to spread, noted one Government reform activist.

Besides activists, other individuals would possess a possible motivation to leak information to the press about prosecutors' efforts to combat corruption, including within Gov. Cuomo's inner circle. Chief amongst them would be prosecutors, themselves, including those working in the office of U.S. Attorney Bharara, in particular.

Besides not having been entirely forthcoming about the Federal corruption investigation involving former Assemblymember Castro, U.S. Attorney Bharara has not been entirely transparent about the reported, wide-ranging Federal corruption investigation of the New York Police Department. As reported by Progress Queens, U.S. Attorney Bharara has resisted calls to form a public commission, patterned after the former Knapp Commission, to investigate the NYPD for systemic corruption, including by holding public hearings.

This lack of transparency by Federal prosecutors has also been noted by Government reform activists in how U.S. Attorney Bharara has refused to comply with the Freedom of Information Act. In communication exchanged between the U.S. Attorney's Office and Progress Queens, for example, a representative for Federal prosecutors has claimed that all of the speeches made by U.S. Attorney Bharara have not been recorded or transcribed and posted online due to budget considerations, an excuse that Progress Queens has rejected as unacceptable under FOIA. Under the Federal open records law, an agency cannot refuse to comply with transparency regulations as a consequence of conditions or situations of its own choosing or making.

Because U.S. Attorney Bharara suffered criticism after he reportedly claimed that there was insufficient evidence to prove a crime in Gov. Cuomo's disbanding of the Moreland Commission -- although not as severe as the criticism faced by FBI Director Comey or U.S. Attorney General Loretta Lynch over the refusal to prosecute former First Lady Clinton for her use of a private e-mail server -- he still remains an important focal point of hope amongst a large swath of voters, who still care about fighting political and campaign corruption.

A corollary to Gov. Cuomo having received a nonprosecution agreement would be that Federal prosecutors remain actively investigating other officials in Albany, possibly those in Gov. Cuomo's orbit, "to hold responsible and to incapacitate as many people as possible," to borrow the words of U.S. Attorney Bharara.

Because the U.S. Attorney's Office may be loath to establish new legal precedents for transparency, the leaking of information to the press may help to serve an important agency purpose without having to commit the office to benchmarks for transparency. In a U.S. Supreme Court case affirming the public's right to access judicial documents, the nation's top Court ruled, in part, that, “the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful ‘self-help,’ as indeed they did regularly in the activities of vigilante ‘committees’ on our frontiers.”

To some Government reform activists, the issue of whether the U.S. Department of Justice cares to affirm the importance of the public witnessing the administration of justice is an important cause. So much faith in whatever ability the Government maintains to hold corrupt elected officials accountable rests almost solely in the leadership and inspiration being exhibited by the work of U.S. Attorney Bharara. Were the public to lose faith in him, or, equally as important, were the public begin to believe that the Government was incapable of making the administration of justice a matter that was fully transparent to the public, some Government reform activists have predicted that the public would lose all faith in the ability of prosecutors to serve as a final check against political and campaign corruption that elected officials countenance. Since elected officials are compromised by the establishment politics from the corporate, two-party system and since the judiciary is compromised by suspicions of partisanship, the work by the independent Federal prosecutors in the U.S. Attorney's Office remain one area where there is some demonstrated record of fighting corruption. Were the public to lose faith in the U.S. Attorney's Office, it is conceivable that confidence in the Government could collapse.

If, as predicted, former First Lady Clinton wins the presidential election in November, it has already been speculated that neither she nor U.S. Sen. Charles Schumer (D-NY) would seek to reappoint or nominate U.S. Attorney Bharara to another term in office, respectively. Consequently, as U.S. Attorney Bharara reportedly seeks to wrap-up as many of his outstanding corruption investigations as possible, it would make sense that he would negotiate nonprosecution agreements with significant Government officials, in order to rapidly hand up his cases to Federal grand juries, some Government reform activists have said.

Since the proceedings of grand juries remain a secretive process, the only way for the public to remain informed about the administration of justice would be for the discretionary leaking of information to take place. Whereas leaks are increasingly providing the public with more information about their own Governments, a system of leaks by definition implies a continued, over-all closed system around the access to what should be open records, unless the Government is now embracing a make-shift, back-end system of leaks as a form of transparency.