Prosecutor's probe of Cuomo, no easy answers
ALBANY If an investigation finds Gov. Andrew Cuomo and his staff did indeed meddle with the work of the Moreland anti-corruption commission — blocking investigations and protecting possible targets from scrutiny — what possible charges could result? And who would bring such charges?
The answers, like much about this case that's now in the hands of a federal prosecutor, are not clear-cut, according to legal experts.
For one, as Cuomo himself has asserted, how could he be accused of interfering with a commission that he created and appointed?
And if Manhattan's U.S. Attorney Preet Bharara's investigation finds Cuomo's administration violated state law, which is outside Bharara's federal jurisdiction, who would take up the state prosecution?
David Grandeau, an attorney and former state lobbying enforcer, said any meddling could expose the Cuomo administration to criminal charges of obstruction of governmental administration or official misconduct. There also is the possibility of civil violations under the state's Public Officers Law, which prohibits officials from using their positions to secure "unwarranted privileges or exemptions" for themselves or others.
"But they'll never get prosecuted," Grandeau said, "because the people that would prosecute them were part of it."
Attorney General Eric Schneiderman, Albany County District Attorney P. David Soares and nine other district attorneys were all directly involved with the commission that examined Albany's pay-to-play political culture.
"Every one of them knew about it. They all know how to enforce state law and they wouldn't do it," Grandeau said. "There's enough jurisdiction that if any one of them had the stones, the political stones, (they could) actually prosecute."
Former Attorney General Dennis Vacco, a Republican, said the Democratic governor may be on shaky ground with his argument he couldn't have meddled with a commission that was his own. The commissioners were also deputized by Schneiderman, so they were deputy attorneys general and not simply Cuomo appointees, he said.
Vacco made the comparison to New York's Organized Crime Task Force, whose chief deputy is jointly appointed by the governor and attorney general.
"Nobody would ever believe it would be appropriate for the governor to reach into the Organized Crime Task Force and say, 'Pull back these subpoenas,'" he said.
Cuomo, who created the commission last summer as part of his pledge to root out corruption in Albany, abruptly shut it down in April after he got legislators to agree to limited campaign finance reforms.
Bharara called the shutdown premature and took the commission's files of unfinished cases, including investigations of state legislators, then subpoenaed commission documents and emails.
The New York Times reported two months later that a top Cuomo aide, Larry Schwartz, had pressured commissioners to hold up subpoenas to Buying Time, a media-buying firm Cuomo used, and the Real Estate Board of New York, whose members financially supported the governor's campaign. That first subpoena was later issued.
The governor's office denied improper interference with the commission and its subpoenas, though it acknowledged counseling and giving advice to commissioners.
Attorney Paul DerOhannesian, a former Albany County prosecutor, said it is difficult to evaluate anyone's exposure from what's been publicly reported so far without a specific criminal allegation.
"Prosecutors look at all sorts of cases. Not all result in charges," DerOhannesian said. He's defending state Sen. Thomas Libous, a Binghamton Republican, against a federal charge by Bharara that he lied to an FBI agent four years ago in an investigation, a charge Libous denies.
One area where the legal experts agree Bhahara has jurisdiction: allegations that Cuomo could have obstructed justice by engineering a public relations campaign involving key commission members who could be federal witnesses.
The Times also reported that Bharara threatened to investigate the governor's office for obstruction or witness tampering for asking members of the commission, after the Times story, to speak out about their work on the panel. A handful of commissioners, including co-chairman Onondaga District Attorney William Fitzpatrick, issued statements that they were not interfered with by the Cuomo administration.
New York University law professor Stephen Gillers pointed out that no evidence has emerged that the orchestrated public statements were done to influence anyone's testimony.
"However, the very fact of this coordinated chorus has given Bharara a basis to expand a grand jury investigation if he wants to do so," he said.
Another area where defense lawyers say Bharara has authority is in applying federal mail or wire fraud statutes against New York's elected officials who are found to have misused campaign donations.