Assembly to tap impeachment experts

Gov. Andrew M. Cuomo provides a COVID-19 update on Aug. 2, 2020. Courtesy of Gov. Andrew Cuomo's Office

ALBANY — The Assembly Judiciary Committee spearheading a scandal-laden impeachment investigation into Gov. Andrew Cuomo will tap experts to testify about the inquiry in public hearings in coming weeks as the five-month probe races to a conclusion.

A team of attorneys with independent law firm Davis Polk & Wardwell LLP discussed the ongoing impeachment investigation Monday during an executive session of the Judiciary Committee that lasted more than four hours.

The team will hold additional executive sessions Aug. 16 and 23 to update the committee on its investigation followed by public hearings with testimony from experts on sexual assault and harassment and the impeachment process underscored in the state Constitution.

“After the committee has completed its review of the evidence, we’ll make a recommendation to the Assembly,” said Judiciary Committee chair Charles Lavine, D-Glen Cove. “We anticipate this process will be concluded very soon, and when I say very soon, I’m speaking about several weeks.

“...I believe this is going to be dealt with in weeks, not months.”

The hearings were not scheduled as of press time Monday.

Monday’s committee meeting and investigation update comes after former federal prosecutor Joon Kim and Anne Clark, a prominent employment lawyer, published a detailed report confirming the governor sexually harassed at least 11 former and current female state employees, breaking state and federal statutes.

Cuomo continues to deny the facts in the report and asserts he did nothing illegal.

Assembly leaders started to receive documents and related evidence from state Attorney General Letitia James’s office Saturday night, Speaker Carl Heastie, D-Bronx, and continued to trickle in Monday.

“I am heartbroken,” Heastie said Monday during a joint press conference with Lavine and the committee in Albany’s Legislative Office Building. “No one should have to endure the type of behavior detailed in the attorney general’s report.”

The Assembly committee’s investigation has cost taxpayers several million dollars since mid-March. Heastie did not have an updated pricetag Monday, but reiterated it has cost millions.

Heastie and Lavine have not communicated with the governor since the report’s release. Heastie has not spoken with Cuomo since February about the state’s 2021-22 budget.

“I am not negotiating any deals, I am not part of any discussions or plan to be part of any discussions about cutting deals,” Heastie said. “Of course, I’m concerned about the victims, I’m concerned about the people in the state of New York. This is not something I take very lightly, but the attorney general’s investigation was almost five months long and ... there still is a role the Assembly has to play. I ask people to understand that and let us do what is right.”

Cuomo’s attorneys, Paul Fishman of Arnold and Porter LLC; Mitra Hormozi of Walden Mocht and Haran LLP and Rita Glavin of Glavin PLLC, continue to push the narrative that their client was not afforded due process in Kim and Clark’s investigation, overseen by state Attorney General Letitia James’s office, citing numerous inaccuracies in the report and that significant evidence was omitted that support the governor’s innocence.

The committee will not make its recommendation for impeachment solely on the findings of the attorney general’s report, Lavine said, and will strictly review the evidence. Lavine also expressed confidence in the facts contained in the report.

“I have read every word of that report and I would not agree with the characterization that there was no corroboration,” Lavine said. “Whether the corroboration was sufficient for the governor to impeached, that remains to be seen. ... The conclusions of whether there was an impeachable offense that is in the realm of the authority only of the New York state Assembly — no one else.”

Lavine assured New Yorkers a recommendation to draw up impeachment articles would be legally air-tight. How lawmakers would draft articles for separate, unrelated offenses has not been determined.

“The question here isn’t, shall we rush to impeach? The question is, can we present, should that occur, a compelling and comprehensive case at the court of impeachment?” Lavine said.

Counsel with Davis Polk are advising the committee separately on the investigation and impeachment process.

The 21-member committee and counsel from Davis Polk & Wardwell will begin to examine more than 100,000 pieces of unredacted and unfiltered document evidence related to James’s office’s separate sexual harassment probe, including transcripts, witnesses’ and Gov. Cuomo’s depositions and other materials in a secure location in or near the state Capitol.

Attorney have more than 500,000 pieces of evidence related to Cuomo and his administration’s alleged underreporting of COVID-19 deaths in nursing homes.

Evidence is not publicly released as the investigation continues to protect the confidentiality of witnesses and prevent retaliation — especially critical with probes about potential sexual harassment or assault.

“The committee itself has zealously fought to protect the rights of every one of these women,” Lavine said. “There have been no leaks whatsoever from the Assembly committee and we will continue to treat every one of the alleged victims with respect and with concern and with a sense of protection.”

Gov. Cuomo will have numerous opportunities to be heard by committee members and submit supplemental evidence.

“The governor wants to be treated fairly like anyone else in this country,” Lavine said. “...In a court of American law, no one is above the law.”

Attorneys from Davis Polk advised Cuomo’s counsel in a letter Thursday the governor and his attorneys have until 5 p.m. Friday to submit evidence for the Assembly Judiciary Committee’s impeachment investigation.

The Judiciary Committee served a formal notice to Gov. Cuomo and the Executive Chamber of non-retaliation March 15 when the impeachment investigation commenced, barring Cuomo and his administration from attempting to intimidate a witness.

The Democratic members of the lower house do not have confidence that Gov. Cuomo can continue to serve New Yorkers or remain in office after the attorney general’s report proved the governor created a hostile work environment in the Executive Chamber, Heastie said.

The state Assembly has not investigated removing a sitting governor of New York in more than a century.

New York’s 39th governor, William Sulzer, is the only state governor to be impeached. Sulzer was convicted of perjury and removed from office in October 1913.

“Chairman Lavine and my Majority colleagues understand the gravity of the situation we find ourselves in today,” Heastie said. “Future generations will look to us and how we conducted ourselves in this moment.”

The committee’s probe includes multiple scandals involving Gov. Cuomo in addition to the sexual harassment, including his administration’s potential underreporting of COVID-19 deaths in nursing homes, the governor potentially using state resources to publish his $5.1 million pandemic memoir last fall and the governor giving preferential COVID testing to family and close friends early in the pandemic when tests were scarce.

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