Earlier this year, I met a source in a Washington, D.C., hotel lobby to discuss a financial corruption case they claimed to be familiar with. In the course of our conversation, this person told me that Andrew Cuomo is not actually the governor of New York. What? Come on, that’s crazy. Or...is it?
Last year, the New York state capital was rocked by a pair of corruption cases brought against Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos. Both resigned from their positions and were found guilty. Together, Cuomo, Silver, and Skelos were known as the Three Men in a Room—all roads in New York led to them. As the U.S. Attorney for the Southern District of New York Preet Bharara’s office showed at trial, Silver and Skelos used this consolidation of power for their own enrichment and gain—trading favors not just for access and influence but sex and money.
Their scheming appears to have extended even as far as ensuring that the state’s voting districts were arranged such that the Assembly would remain majority Democrat and the Senate majority Republican—thus perpetuating political gridlock that only these three could navigate—despite the fact that New York voters are overwhelmingly Democrats.
All of which is to say that anyone who took any pleasure from watching Silver and Skelos get taken down was (and, no doubt, continues to be) disappointed that Bharara did not also indict the governor. For his part, the notoriously combative Bharara has encouraged such speculation: “There’s corruption, we believe, in the executive branches” in New York, he said in June. “Stay tuned.”
But there is at least one circumstance under which Cuomo would not be publicly charged with a crime—that is, if he has already been charged, in a sealed indictment, and taken a plea deal that requires his cooperation in another case. Obviously, the feds would go to great lengths to keep such an arrangement quiet, in order to preserve the integrity of an ongoing sting operation. Cuomo, this theory goes, is a rat.
So. According to this person, the governor is not actually the governor: Nobody has ever seen his swearing-in certificate, they said, because it doesn’t exist; there is no certificate, because Cuomo was never sworn in for his second term—as part of his deal, he would have pleaded guilty to a felony (probably something relatively small-bore, like campaign finance violations), and you can’t hold elected office if you’re a convicted felon.
Who is the target in the larger investigation? The banks, probably, or maybe some of the big real estate firms. Or both. And, if not Cuomo, who is the “real” governor? Possibly Lieutenant Governor Kathy Hochul, who Cuomo nominated as part of his (purported) deal with the feds. Hochul, incidentally, is married to William Hochul—the U.S. Attorney for the Western District of New York.
9-16.110 - Plea Negotiations with Public Officials
Plea bargains with defendants who are elected public officers can present issues of federalism and separation of powers when they require the public officer defendant to take action that affects his or her tenure in office. The same issues can also arise when the defendant is a candidate for elective office, or when plea negotiations call for withdrawal from candidacy or an undertaking by the defendant not to seek or hold public office in the future.
GENERAL RULE: Resignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved.
The key here is that as far as the U.S. Attorney is concerned, “resignation from office” fulfills the public interest. Federal prosecutors, however, often do whatever they can to keep criminal plea agreements out of the public record—especially when defendants agree to cooperate with authorities in other, ongoing investigations. Unfortunately for the theory that this has happened with Cuomo, however, the New York Department of State provided the governor’s signed oaths of office from 2010 and 2014 in response to a Freedom of Information Law request from Gawker. They can be seen here.
Gov. Andrew Cuomo called off a swearing-in ceremony for his second term that had been planned for Wednesday night, electing to spend New Year’s Eve with his family instead.
The swearing-in ceremony was planned for 9:30 p.m. Wednesday in Albany. But Cuomo instead held a formal and private swearing-in at 2:30 p.m. in Albany, and then headed to New York City.
Cuomo’s office did not return a request for comment.
Update – 1:10 pm
In an email to Gawker, Rich Azzopardi, senior deputy communications director for Andrew Cuomo, who is apparently the governor, wrote: “Crackpot clickbait isn’t journalism.”