Cuomo’s attorney fires back at impeachment probe chief

New York Gov. Andrew Cuomo listens during a coronavirus news conference at the governor’s Manhattan office March 2, 2020. Cuomo is scheduled to be questioned on Saturday regarding a probe into allegations of sexual misconduct leveled against the governor. Barry Williams/New York Daily News/TNS

ALBANY — An attorney representing Gov. Andrew Cuomo clapped back Thursday at the assemblyman leading the Legislature’s impeachment investigation into the scandal-entangled governor, citing executive staff’s First Amendment rights to free speech.

Paul Fishman, a partner at law firm Arnold & Porter based in Washington, D.C., sent a letter Thursday evening in direct response to Assembly Judiciary Committee Chairman Charles Lavine, D-Glen Cove, who penned a letter to the governor Wednesday to warn him about staff making demeaning comments directed at state Attorney General Letitia James on Twitter and intimidate witnesses involved in her investigations.

James, a Democrat, is conducting a separate concurrent probe into Cuomo’s administration, including an investigation into claims of sexual harassment and misconduct against the governor by multiple women and staff allegedly underreporting COVID-19 deaths in nursing homes and congregate care facilities.

“Your attempt to silence criticism of the investigation, and particularly your call for ‘severe repercussions’ for those who do not heed that warning, raises profound constitutional problems,” according to Fishman, a former U.S. Attorney in New Jersey.

Of free speech protections in the First Amendment and state Constitution, Fishman added, “Punishing executive officials for speaking about important issues of public policy is not merely inappropriate, but it is fundamentally inconsistent with the core values of our nation’s founders.”

Lavine’s letter Wednesday accused Cuomo’s senior adviser and communications director Rich Azzopardi of making a “verbal attack” against James in a tweet July 11 after a New York Times report revealed the governor was slated to be interviewed by the attorney general that weekend. The leak from the attorney general’s office about the interview was “more evidence of the transparent political motivation of the attorney general’s review,” Azzopardi said.

He added James says she may run against the governor.

James has not said she intends to run for governor, and has refused to answer questions about her political aspirations.

Lavine warned Gov. Cuomo on Wednesday of potential severe repercussions for Azzopardi’s Twitter statements.

“I am extraordinarily concerned with respect to the governor’s communications director’s verbal attack against the attorney general,” according to Lavine’s letter. “Demeaning the attorney general in turn demeans the attorney general’s investigation and at the same time sends an obviously intimidating message to potential witnesses.”

Fishman argued Thursday that Lavine’s letter was threatening, and his interpretation of Azzopardi’s statements are concerning.

“There is no basis for your statement that potential witnesses in the sexual harassment investigation would glean anything from this unrelated tweet, let alone view it as an ‘attempt to suppress their testimony,’” according to the attorney’s letter.

James isn’t the only one of Cuomo’s fellow Democrats that Azzopardi has targeted as the governor became engulfed in multiple scandals last winter.

He also accused state Comptroller Thomas DiNapoli of gunning for the governor’s job after the fiscal watchdog called on the attorney general’s office to also probe allegations that Cuomo improperly enlisted staff to help with his $5.1 million deal to publish his pandemic memoir.

Azzopardi has said on social media “both the comptroller and the attorney general have spoken to people about running for governor.”

James’s probe into allegations against Gov. Cuomo run parallel, but separate, from the Legislature’s investigation and an investigation by federal prosecutors into the state’s reporting of COVID deaths in nursing homes.

Last month, James said her office’s investigation was proceeding smoothly without interference by other prosecutors.

Lavine on March 15 served Cuomo a notice of non-retaliation, advising the governor and those associated with him to not engage in intimidation, retaliation or any attempt at intimidating or retaliating against potential witnesses

“There is a clear difference between actionable retaliation and protected speech and it is clear that the Chairman doesn’t understand the difference,” Cuomo’s special counsel Beth Garvey said Wednesday after Lavine’s letter was publicized. “We will have a formal response forthcoming.”

The attorney general’s office declined to comment.

The Assembly Judiciary Committee last provided an update on the impeachment probe into Gov. Cuomo on June 30. A team of counsel with independent law firm Davis Polk & Wardwell LLP continues to examine more than 100,000 documents including emails, texts, letter correspondences, personnel records and more as part of the Assembly’s investigation.

Lavine has said he is pleased with the investigators’ progress, but said last month the probe is not near completion. Lavine has repeatedly said he does not know how long the probe will continue.

Tribune News Service contributed to this report.

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