Cuomo Still Faces a DOJ Investigation — but the Real Action Is the State AG’s Probe

Well, Friday news dumps are back.

Last Friday, besides dropping cases on suspected Chinese spies, the Biden Justice Department quietly indicated, in a letter to some congressional Republicans, that it would not proceed with a civil-rights investigation of Governor Andrew Cuomo’s handling of COVID-19 patients in public nursing homes.

New York was not the only state affected by this announcement. There are at least three other states that were under scrutiny. According to Yahoo News, the civil-rights investigations involving Michigan and Pennsylvania have also been closed; the probe of New Jersey’s handling of patients at two nursing homes remains open.

There is some confusion about what this means. That’s not surprising. Although there are multiple federal and state investigations of Cuomo’s administration, there have been no formal civil lawsuits or criminal charges filed, so we’ve been relying from the start on press reporting that is often based on anonymous sources.

That is why I tried to sort out what the state of play appeared to be back in February . . . and there have been new developments since then, such as the inquiries into special COVID-testing treatment for Cuomo family members and cronies; Cuomo’s book; and Cuomo’s manipulation of a state medical report.

In any event, the decision to drop the civil-rights investigation does not mean the Justice Department is no longer examining Cuomo’s handling of the nursing homes.

The investigation that has been aborted was a civil inquiry run mainly by DOJ’s Civil Rights Division, which has jurisdiction over enforcement of the Civil Rights of Institutionalized Persons Act (CRIPA). It does not look like that investigation got much past the preliminary stage. Relatedly, it appears that there was also an angle being looked at by DOJ’s Civil Division (which is different from the Civil Rights Division). It involved, not the treatment of persons covered by CRIPA, but the question of whether there was False Claims Act liability based on the suspected provision by the state to the feds of false information about nursing-home COVID cases.

Both of those threads were civil in nature. That is, if the Justice Department had proceeded with a full-blown investigation and eventually decided to take legal action, that action would have been in the form of a civil lawsuit against the state or some component of the state government.

Besides that, however, there has reportedly also been a criminal investigation, focused mainly on the question of whether the Cuomo administration made false statements to the federal government, obstructed a federal investigation, or engaged in any kind of actionable fraud. That investigation is being run by the U.S. Attorney’s Office for the Eastern District of New York (EDNY — the federal prosecutor for matters arising in Brooklyn, Queens, Staten Island, and Long Island), which is working in conjunction with the FBI.

This criminal investigation is separate from the investigation of potential civil liability under CRIPA and the False Claims Act. Importantly, DOJ’s announcement on Friday affects only the latter. There is no indication that the EDNY/FBI criminal investigation has been dropped.

That said, let’s be realistic.

My own intuition is that pigs will fly before the Biden administration takes any action against the Cuomo administration — and, indeed, that the chance of a civil suit was marginally better than that of any criminal indictment.

The criminal investigation was opened months ago by Seth DuCharme, then the Trump-appointed acting U.S. attorney for EDNY. DuCharme has since gone back to private practice. In mid March, the Biden Justice Department announced that Mark J. Lesko had been appointed as the EDNY’s acting U.S. attorney. The administration soon decided to make Lesko head of DOJ’s National Security Division; thus, on June 21, a new acting U.S. attorney was sworn in, Jacquelyn Kasulis.

I would not hold my breath waiting for Biden appointees to charge Cuomo or the governor’s subordinates. As I’ve maintained from the start, if any meaningful action is going to be taken, it will be by New York state authorities — and, specifically, by Attorney General Letitia James. (The state assembly’s “impeachment investigation” is a sham.)

People around the country don’t always get this, but what really matters these days in New York (where the Republican Party barely has a pulse) is not the partisan Republican–Democratic divide, but the internecine rivalry between the Democrats’ mainstream and its woke progressives. The latter would be delighted to oust Cuomo, and James is said to be weighing a run for his job. In fact, two Saturdays ago (July 17), Cuomo was grilled behind closed doors by the outside investigators James appointed to investigate the sexual-harassment allegations made against him by several women.

That doesn’t mean anything will necessarily happen. Cuomo remains a very powerful figure in the Empire State. Significantly, he has appointed or supported many of the state’s judges — the judiciary would obviously be a big factor if legal action were taken against the governor.

Bottom line: The Justice Department’s Friday announcement does not end all federal investigation of Governor Cuomo. But it is highly unlikely (to say the least) that the EDNY investigation will result in any charges. The real action is in the state — and, specifically, in AG James’s probe.