22 October 2021: Opinion - Case Against Cuomo Weakens

The case against Cuomo weakens

New York Daily News columnist and former federal prosecutor Jim Zirin looks to have written this piece from talking points provided by Andrew M. Cuomo's legal team, who want to control the upcoming release of the New York Assembly's report on the findings of its impeachment probe of the resigned-in-disgrace Cuomo. Here's a sample:

Cuomo was the target of a smear campaign authored by two supposedly independent lawyers working for James. The report concluded that Cuomo “sexually harassed 11 women.” But sexual harassment is defined in state law as workplace discrimination for employees subjecting “an individual to inferior terms, conditions or privileges of employment.” “Petty slights or trivial inconveniences” don’t count. Yet of those “victims” named in the Joon Kim-Anne Clark report, two not work for the State of New York at the time of the alleged misconduct, and the four others, even if their allegations are true, only experienced minor forms of harassment too trivial to make out a violation....

In denouncing Cuomo, James appears tainted with the appearance of bias and impropriety. Cuomo’s March 1, 2021 referral letter to her under Executive Law § 63(8) requested that she “select an independent law firm to conduct an inquiry” into “sexual harassment claims against the governor.” Some independent investigation! Cuomo contends that James herself admitted to interviewing witnesses, and made findings of credibility.

Meantime, in this “he-said, she-said” tale, Cuomo claims that the testimony of two key witnesses has “evolved” over time, meaning that their testimony is riddled with inconsistencies. According to Brittany Commisso, Cuomo rubbed her butt for five seconds, and more seriously pushed her up against the wall in his Governor’s Mansion office, groped her breast and then kissed her. But the woman never mentioned to her colleagues the hand on the butt incident during the course of four conversations with them about his allegedly inappropriate behavior. As for the grope, the story is materially inconsistent with what she told James’ investigators in her initial interview, and what she later told the Albany Times Union in an interview published April 7.

Another complainant, Lindsey Boylan, relied on heavily in the James report, purportedly told then-counsel to the governor Alphonso David in January 2018 “that she had not been subject to sex discrimination, harassment or retaliation” But in December 2020 she alleged that Cuomo had “sexually harassed me for years.”

If all this sounds familiar to the claims made by Cuomo's personal attorney on 20 October 2021, that's because Zirin's column isn't much more than a regurgitation of the claims she advanced via Andrew M. Cuomo's political campaign web site. Zirin adds no meaningful original analysis of his own.

On a side note, Zirin also chose to bring up the example of Eliot Spitzer, who was New York's governor when Andrew M. Cuomo was the state's attorney general, who was similarly "hounded" out of office because of his own sex scandal. This Politico article from 8 August 2021 compares and contrasts how Andrew M. Cuomo conducted an investigation of Spitzer with how James investigated Cuomo, which weakens Cuomo's legal team's case:

James’ modus operandi to some appeared to be an outsized effort to avoid charges of political bias — and offers a striking comparison to how Cuomo investigated the state executive himself when he was New York’s attorney general, most notably his 2007 probe into Spitzer’s use of state police for political purposes. Spitzer resigned as governor the following year amid a prostitution scandal.

That investigation, which concluded Spitzer’s administration had created and then spread negative information to media about Republican Senate Majority Leader Joseph Bruno’s use of state travel resources, was not launched at the governor’s referral under Executive Law 63(8), which was how James was tasked with her probe in March. Invoking the law meant Cuomo placed responsibility for James and the lawyers she chose to conduct the investigation independent of his office.

Cuomo, publicly at least, made the decision himself to investigate Spitzer, after Bruno — who could not directly order a probe — had requested it. And Cuomo did it through internal lawyers who reported to him, including then-special counsel Linda Lacewell, who is currently the head of the state’s Department of Financial Services. Lacewell, now a longtime Cuomo ally, was named several times in James’ report as part of the effort to discredit harassment allegations.

James, in contrast, appointed two well-known outside attorneys to lead her probe. Cuomo’s aides and lawyers say those picks are biased, pointing to Kim’s close relationship to former U.S. Attorney Preet Bharara, who investigated the Cuomo administration's shutdown of a commission charged with looking into corruption in state government, as well as his role in the prosecution of former top Cuomo aide Joe Percoco.

Those arguments are “unpersuasive,” said Jennifer Rodgers, a former federal prosecutor in New York and Columbia Law lecturer.

“If a lawyer were automatically inappropriately biased because they had previously worked on a matter that involved that subject, no prosecutors could ever investigate the same person twice,” she said in an interview Saturday.

Cuomo's legal team are trying hard to distract attention from their client's credibility gap as they face multiple civil and criminal litigations. It's now a long-running joke here at the timeline, but it's still true: Cuomo desperately needs better PR people and more legal help.

As a former prosecutor and now columnist, Zirin can be considered to count as both a PR person and as legal help advancing in Cuomo's personal and political interests. See what we mean?