Andrew Cuomo Faces a Rapidly Growing Impeachment Threat

I n last week’s episode of The McCarthy Report, recorded Friday, Rich and I discussed New York’s impeachment process. The state Assembly is investigating Governor Andrew Cuomo with an eye toward his potential removal, based on the scandals over his administration’s misrepresenting the number of nursing-home residents who died from COVID-19, and the governor’s alleged mistreatment of female employees — at least some instances of which may rise to the level of sexual harassment under state law, and all of which are abusive regardless.

So how would impeachment play out?

As explained on the podcast, the beginning of state impeachment mirrors federal impeachment procedurally: A simple-majority vote of the legislature may allege an article of impeachment. The Assembly has 150 members — 107 Democrats and 43 Republicans — so it takes 76 to make a majority.

This is a problem for Cuomo: 41 Republicans are already on record supporting an impeachment resolution, and upwards of 40 Assembly Democrats appear to support Cuomo’s impeachment. The latter number is likely to increase as well-known national Democrats call for Cuomo to resign, including several of New York’s own who jumped on the bandwagon late last week: Senators Chuck Schumer (the majority leader) and Kirsten Gillibrand (who worked for Cuomo at HUD in the Clinton years), and Representatives Jerry Nadler (House Judiciary Committee chairman) and Alexandria Ocasio-Cortez (the young firebrand who is influential on the hard left in both Washington, D.C., and New York). So far, the Biden White House remains mostly mum, but the heat is on.

There are significant differences between federal and New York impeachment procedures after impeachment articles have been adopted. The most significant one: Were Cuomo to be impeached by the Assembly, he would be suspended from office until the trial’s conclusion. Lieutenant Governor Kathy Hochul, a moderate Democrat, would become the acting governor.

In New York, as in our federal constitutional system, the impeachment trial takes place in the Senate. The Empire State’s Senate has 63 members. (I had a brain freeze during the podcast and mistakenly said it was 40 — sorry to our listeners.) Each senator represents a district. New York being New York, there is always confusion. The state has 62 counties, but the districts do not match up with counties . . . and there has even been some confusion in the recent past regarding the number of votes needed for a majority.

The lieutenant governor is nominally the president of the Senate, just as the vice president is president of the U.S. Senate. Similarly analogous to the federal system, an impeachment trial of Governor Cuomo would be presided over by the chief judge of the highest court. Again, New York being New York, the highest court is not the Supreme Court — it is the Court of Appeals. (In New York, the Supreme Court is an inferior court, the next level up is the Appellate Division, and the Court of Appeals is the top tribunal.)

The state impeachment trial differs from its federal counterpart in significant ways. First, the jurors include not only all 63 state senators but also the judges of the Court of Appeals — all seven of whom, like Chief Judge Janet DiFiore, are Cuomo appointees. Currently, there are 43 Democrats and 20 Republicans in the Senate. As in a federal impeachment trial, it takes a two-thirds supermajority vote to convict. Conviction results in the removal of the official and disqualification from holding state office in the future — it is not a disqualification from seeking federal or even municipal office (Cuomo, in theory if not in reality, could still run for president or for mayor of Mount Kisco).

In another quirk of state impeachment, not only would Hochul be recused from presiding over the trial (because she is next in line if Cuomo is impeached); also recused from participation would be the Senate’s most powerful Democrat, Majority Leader Andrea Stewart-Cousins — a Cuomo rival who has called for him to resign. As the chamber’s president pro tempore, she is second in line (after the lieutenant governor) to succeed to the governorship, and state law therefore disqualifies her. So between the eligible senators and the judges, there would probably be 68 jurors voting on the impeachment verdict. It would be 69 if DiFiore decided she would vote in addition to presiding. State law does not say whether the presiding official votes. I bet she would vote only if it mattered to the outcome. The magic number would be 47.

It has been over a century since a governor in New York has been impeached. Governor William Sulzer (a.k.a. “Plain Bill”) was impeached in 1913 just ten months into his term, after incurring the wrath of Tammany Hall boss Charles Murphy (“Silent Charlie”). His fellow Democrats accused him of diverting campaign funds to make personal investments and then obstructing their investigation. Historians debate the validity of at least some of the charges, but Sulzer never had a chance and was removed from office.

The incident points up another divergence from the federal system: While there is debate about what constitutes “high crimes and misdemeanors,” as we’ve discussed at length in connection with President Trump’s impeachments, that constitutional standard appears to be a model of clarity compared with New York law.

Writing in the Fordham Urban Law Journal in 1987, former state senator John Dunne and Michael Balboni, the former counsel to the state Senate Judiciary Committee, explained that a Senate investigation in the early 1980s found the impeachment proceedings against Governor Sulzer to be deeply flawed. More important, the committee lamented that state law lacked an authoritative definition of “what acts constitute impeachable conduct.” The state needed, according to the committee, a definition “broad enough to include a wide range of misconduct, criminal as well as civil, yet specific enough to prohibit the use of impeachment as a political tool.”

In a helpful recent piece for New York Public Radio (in Gothamist), Brigid Bergin notes that some legal commentators point to Section 240 of the state’s judiciary law, which controls jurisdiction for impeachment trials. That provision refers to “willful and corrupt misconduct in office” as an explanation for what constitutes an impeachable offense.

Inertia is among the most powerful forces in politics. The evidence against Cuomo is obviously mounting, but he has two things going in his favor. First, he has very capable counsel who will be able to mount strong arguments that impeachment standards in New York law are very uncertain — and after a decade in power, he has appointed many of the judges who might be called upon to rule on such claims. Second, as I related last week, Attorney General Letitia James has just appointed two well-regarded attorneys to conduct an independent investigation of the sexual-harassment allegations; and there are state and federal probes under way into Cuomo’s misrepresentations about nursing-home COVID-19 deaths.

For these reasons, it will be an easy out, particularly for Democrats who are now so courageously calling for Cuomo’s resignation (after months of lionizing him and years of averting their gaze from his notorious abusiveness), to say: Let’s wait until these investigations are concluded rather than rushing headlong into a drawn-out, uncertain impeachment process.