12 October 2021: Analysis of Cuomo's COVID Nursing Home Deaths Scandal Defense

Cuomo letter reveals details on probes, subpoenas

This report digs into the arguments Andrew M. Cuomo's attorney made in the letter he sent to the U.S. Attorney in Brooklyn, whose office is conducting a criminal investigation of the cover-up aspects of Cuomo's actions. We're going to present a series of excerpts highlight the arguments Cuomo hopes will keep him from facing federal criminal charges.

First up, the letter provides new information about who is investigating Cuomo in the state of New York. The second paragraph provides Albany Times-Union journalist Chris Bragg's analysis of what that new information is:

"Evidencing New York’s ability to investigate the issues discussed here are the multiple State and local investigations that are currently ongoing. The Executive Chamber has received subpoenas from the New York Attorney General (regarding the Governor’s book and priority COVID testing), the Manhattan District Attorney’s Office (regarding nursing homes), the New York State Assembly (regarding an impeachment investigation), and the New York Joint Commission on Public Ethics (regarding priority testing and the Governor’s book)."

To my knowledge, it had not been previously confirmed by Cuomo's office that JCOPE was investigating priority COVID testing and Cuomo's book, that the Manhattan district attorney's office was investigating nursing homes, or that Attorney General Letitia James' office was investigating priority COVID testing.

Next, regarding Andrew M. Cuomo's $5.12 million pandemic "leadership" book deal:

In his letter, Abramowitz writes that the DOH report and the book deal were unrelated, but that in any case, it would not be illegal for a politician to inflate their image ahead of a book's publication:

He wrote: "Some news outlets have unfairly associated the publication of nursing home data and Governor Cuomo’s book. For example, the New York Times reported that in the lead up to the publication of the July 6 DOH report Governor Cuomo’s aides revised the nursing home death numbers in the July 6 report. The Times also stated that its review of “the development of Mr. Cuomo’s lucrative book deal revealed how it overlapped with the move by his most senior aides to reshape a report about nursing home deaths in a way that insulated the governor from criticism and burnished his image

As an initial matter, the implication of Times’s article is wrong—there was no connection between the Governor’s book and the publication of nursing home deaths. But in any event, it is irrelevant to the analysis at hand. Even if there were some scheme to downplay nursing home deaths in order to make the Governor look better to the public, and in turn that heightened public stature allowed him to obtain more money for his book, it would not be actionable under the property fraud statutes. Even in that preposterous scenario, there would be no federal criminal violation because the object of the scheme would be good publicity, not property...

Even more, in this hypothetical, the book advance and sales could not serve as the “property” objective of the purported fraud for a couple of reasons. First, the connection is far too tenuous...And second, such an interpretation would fail on vagueness grounds. The absurdity of such a theory is apparent once one considers its broader implications. Politicians across the country consistently publish books about their political endeavors—have they committed property fraud if, in the run up to publication they made false statements of self-serving puffery. Under that theory, if the book advance and sales could serve as the basis for a property fraud conviction, every politician in the country who has written a book could be subject to federal imprisonment. Such an interpretation would lead to “a sweeping expansion of federal criminal jurisdiction” because “U.S. Attorneys could prosecute as property fraud every lie a state or local official tells”—a result not allowed under the Constitution.

Others in the media have asserted that the July 6 DOH report was modified solely based on political (rather than scientific) motivations. This is wrong: the conclusions of the July 6 DOH report were equally supported irrespective of whether the report covered only in-facility, or both in- and out-of-facility nursing home COVID deaths. But even if it were true, it could not serve as the basis for criminal liability. As made clear in Kelly, a fraudulent act by a state official does not qualify as property fraud without the actor obtaining some tangible property. Put differently, the Kelly decision bars federal prosecutors from “criminalizing all acts of dishonesty by state and local officials."...There is no evidence of any false statement or fraudulent act, or that any property was obtained because of the publication of nursing home data. Thus, any prosecution under the property fraud statutes could not succeed."

Abramowitz avoids mentioning the primary motive for Cuomo's attempted cover-up of the full extent of COVID nursing home deaths: the avoidance of state and federal criminal charges associated with criminally negligent homicide and/or manslaughter. Since conviction on these charges would force Cuomo to forfeit the proceeds from the book deal, his actions could reasonably be argued to represent a conspiracy to avoid realizing a very tangible loss of property he had obtained in part by misrepresenting his "success" during the coronavirus pandemic.