Andrew Cuomo criticized for failing to cede control of sexual harassment probe

ALBANY - Facing detailed sexual harassment allegations from two former aides, New York Gov. Andrew Cuomo on Sunday continued to resist referring the matter directly to the state attorney general for investigation despite numerous pleas from high-ranking state and federal lawmakers.

Cuomo, a Democrat, has faced increasing calls from elected officials of both parties to acquiesce to a truly independent investigation after two women went public with claims he harassed them — and in one case, delivered a kiss on the lips without consent — while under his employ.

But on Saturday, Cuomo chose to break with recent precedent, declining to refer the matter directly to state Attorney General Letitia James and instead directing it to former U.S. District Judge Barbara Jones, who once worked as partner at a law firm with one of the governor's closest advisers.

By Sunday, Cuomo ditched his plan for Jones to investigate amid withering criticism.

But he still refused to cede total control, instead laying out a plan for James (who is independently elected) and Chief Judge Janet DiFiore (who Cuomo appointed) to jointly select a private attorney with no political affiliation to investigate.

"We had selected former Federal Judge Barbara Jones, with a stellar record for qualifications and integrity, but we want to avoid even the perception of a lack of independence or inference of politics," Cuomo special counsel Beth Garvey said in a statement.

James, however, had other ideas: Within a minute of Cuomo's office laying out his latest plan, James issued a statement calling on the governor to refer the matter directly to her office — without DiFiore's involvement.

"There must be a truly independent investigation to thoroughly review these troubling allegations against the governor, and I stand ready to oversee that investigation and make any appointments necessary," James said.

AG wants referral under state law

Under state law, the New York governor has the power to refer matters of "public peace, public safety and public justice" to the attorney general for investigation "whenever in his judgment the public interest requires it." 

The attorney general would then have the ability to appoint investigators and hire staff to take up the investigation, along with subpoena power compelling people to cooperate.

Without the referral, James could not do a full review.

By refusing to refer the matter to James, Cuomo is taking a different tact than his predecessor, Gov. David Paterson, who had tasked the attorney general in 2010 with probing a domestic-violence scandal within the governor’s office. Gov. Eliot Spitzer also faced an attorney general investigation in 2007.

And nobody would know about the legal parameters better than Cuomo: He was the attorney general at the time of both previous investigations.

State and federal lawmakers from both parties immediately raised concern over Cuomo's Saturday decision to refer the sexual harassment matter to Jones, with some questioning whether Cuomo, a Democrat, would give the former judge full independence to follow wherever the facts may lead.

Cuomo's new plan on Sunday was unlikely to quell those concerns: DiFiore, the former Westchester County district attorney, was appointed to her powerful post by Cuomo in 2015 and the two have been longtime political allies.

There is also some constitutional concern: If Cuomo were to face impeachment, as some lawmakers have called for, the impeachment court would be made up of the state Senate and the Court of Appeals, including DiFiore.

Lucian Chalfen, a spokesperson for DiFiore, said the chief judge has agreed to participate in selecting an investigator.

"At the request of the Governor’s office, Chief Judge DiFiore has agreed to work with Attorney General James to select an individual to conduct an independent inquiry and report into the recent complaints regarding the Governor," Chalfen said in a statement.

Lawmakers want Cuomo to cede full control

Lawmakers of both parties in Washington and Albany called for Cuomo to cede to a truly independent investigation.

Among them were state Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers; Assembly Speaker Carl Heastie, D-Bronx; Rep. Alexandria Ocasio-Cortez, D-Bronx; U.S. House Judiciary Chairman Jerry Nadler, D-Manhattan and state Senate Minority Leader Rob Ortt, R-North Tonawanda, all of whom signaled late Saturday and Sunday they would like to see the matter referred to James, the Democratic attorney general.

"As has become standard practice in the State of New York when allegations relate directly to the Executive, Governor Cuomo should refer the matter to the Attorney General, who should, in turn, appoint an independent investigator," Nadler said in a statement.

On Sunday, Ocasio-Cortez tweeted an investigation should not be "led by an individual selected by the Governor, but by the office of the Attorney General."

Garvey, Cuomo's special counsel, issued a second statement Sunday claiming an investigator selected by James and DiFiore would have free rein without interference.

"We will leave all decisions concerning the investigation to be made in the discretion of the independent counsel selected by the Attorney General and Chief Judge," Garvey said.

More:A second former aide accuses Gov. Cuomo of sexual harassment

Cuomo facing two scandals at once

Cuomo has been embroiled in scandal on two fronts in recent weeks.

His administration is facing a federal investigation for its handling of COVID-19 in nursing homes, which was launched after top aide Melissa DeRosa acknowledged holding back key death data and information from lawmakers and the public after receiving an inquiry from the U.S. Department of Justice last year.

Cuomo has also been accused of sexual harassment by two former aides, Lindsey Boylan and Charlotte Bennett.

Boylan wrote an essay Wednesday claiming Cuomo made inappropriate comments to her and once kissed her on the lips without consent while she worked for his administration from 2016 to 2018.

In an article published Saturday, Bennett told The New York Times the governor had asked her suggestive, line-crossing questions about her romantic relationships and preferences last year, while the state was in the midst of its response to the pandemic. 

Cuomo, in a statement issued late Saturday, said he had "never made advances toward Ms. Bennett nor did I ever intend to act in any way that was inappropriate." His press secretary had previously issued a blanket denial of Boylan's claims.

"I ask all New Yorkers to await the findings of the review so that they know the facts before making any judgements," Cuomo said. "I will have no further comment until the review has concluded."

More:Ex-aide accuses Andrew Cuomo of unwanted kiss, sexual harassment

More:Lawmakers grill NY health commissioner on state's response to COVID-19 in nursing homes

Lawmakers want a more independent review

When Cuomo made his initial announcement Saturday, lawmakers immediately began questioning the independence of Jones' review, noting she once served as partner at New York City law firm Zuckerman Spaeder at the same time as Steven Cohen, Cuomo's former top aide and one of his most trusted confidants.

Stewart-Cousins, the state Senate leader, called for a "truly independent investigation" to begin immediately. Her spokesman, Mike Murphy, said Cuomo's pick of Jones does not satisfy that requirement.

The "Attorney General's Office should handle it," Murphy wrote in an email.

Heastie, the state Assembly speaker, also issued a statement calling for a "truly independent investigation." His spokesman, Mike Whyland, said the attorney general should get to pick who does the job. 

"The Speaker believes the Attorney General should make an appointment to ensure that it is a truly independent investigation," Whyland wrote in an email.

Ortt, the top ranking Senate Republican, also called for the attorney general's involvement.

"The review suggested by someone handpicked by the governor himself, is an outrageous, completely unacceptable idea," Ortt said in a statement. "We need a truly independent investigation, which is why I continue to support the calls of my colleagues for a Special Prosecutor appointed by the Attorney General."

Some others, including state Sen. Alessandra Biaggi, D-Pelham, Westchester County, called for Cuomo's resignation.

Biaggi, who once worked as an attorney in Cuomo's office, is among a wave of younger, progressive-leaning lawmakers who are increasingly populating the halls of the state Capitol, many of whom have shown a willingness to criticize the powerful governor.

"While a truly independent investigation may uncover more evidence or instances of abuse, the existing details are sufficient for me to form my conclusion," Biaggi said in a statement.

"As a New Yorker, a legislator, Chair of the Senate Ethics and Internal Governance Committee, and a survivor of sexual abuse, I am calling for Governor Cuomo to resign.”

More:NY lawmakers call for investigation of harassment accusation against Cuomo. But who would do it?

More:Nursing home scandal puts dent in Andrew Cuomo's job approval rating

Cuomo had received referral as AG

In her statement Sunday, James called for a referral under Section 63-8 of the state Executive Law, which lays out the governor's ability to refer matters to the attorney general in a way that cedes broad authority and decision-making power.

Such a referral would give James total control over who is selected to commence the investigation. That's unlike Cuomo's Sunday plan, which would limit James and DiFiore to selecting a private-practice attorney with no political affiliation.

"Given state law, this can only be accomplished through an official referral from the governor’s office based on State Law (§ 63-8) and must include subpoena power," James said. "I urge the governor to make this referral immediately.”

Cuomo, who has been governor since 2011, had been tasked with investigating governors twice during his one term as attorney general from 2007 through 2010.

In 2007, then-Senate Majority Leader Joseph Bruno asked Cuomo to investigate Spitzer's role in disseminating information about his travel on the state airplane, called Troopergate. Within three weeks, Cuomo issued a scathing report that concluded Spitzer's staff had ordered State Police to keep special records of Bruno's travel.

Two and a half years later, Paterson asked Cuomo to investigate after the then-governor and his advisers faced questions about their actions after an aide, David Johnson, faced accusations of domestic violence. 

The request came at a time when Cuomo was widely believed to be considering challenging Paterson in the 2010 Democratic primary for governor.

Cuomo chose to appoint former Chief Judge Judith Kaye as special investigator; Kaye concluded Paterson and his aides erred in judgement but did not act criminally.

Cuomo also appointed Kaye to investigate whether Paterson perjured himself in testimony about how he obtained tickets to a World Series game featuring the New York Yankees, though the request for the investigation came from the state Commission on Public Integrity.

More:These stories of grief, love and hope show how COVID has forever changed the lives of New Yorkers

AG is independently elected in New York

James, the attorney general, had been considered a political ally of Cuomo, who endorsed her successful run for the office in 2018.

But James recently flexed her independence on Jan. 28, when she issued a report on COVID-19 in nursing homes that chastised Cuomo's administration for failing to tell the public the number of nursing home residents who had died in hospital and hospice settings.

Prior to the report, Cuomo's administration had only released the number of nursing home residents who had died of COVID-19 in the homes themselves. Within hours of James' report, Health Commissioner Howard Zucker revealed about 4,000 residents had died in hospitals or hospice, too.

The Attorney General's Office, meanwhile, has served as a launching pad for future governors, including Cuomo and Spitzer.

James herself has never publicly expressed interest in the governor's job, though she joked last week that others have referred to AG as "aspiring governor."

"We have been putting our heads down, not focusing on the politics but focusing on the law," James said Feb. 22 at the DealBook DC Policy Project.

More:New York COVID-19 nursing home deaths undercounted by as much as 50%, state AG investigation finds

Jon Campbell is a New York state government reporter for the USA TODAY Network. He can be reached at JCAMPBELL1@Gannett.com or on Twitter at @JonCampbellGAN.

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