Cuomo Charged with Sex Crime . . . or Is He?

The dissolute former governor may well be guilty, but proving it will not be easy.

B ack in August, when Albany County sheriff Craig Apple first elbowed his way to the footlights of the Andrew Cuomo drama, I explained that his overt politicization of the case would help Cuomo’s defense if charges were eventually filed.

Well, here we are.

In the matter of the former governor’s alleged groping of a state executive staffer, Brittany Commisso, we don’t yet know if a sex-crime charge will actually be pursued — meaning: a case that the district attorney, as opposed to the investigating sheriff, decides to prosecute. But we do know that Apple is already Defense Exhibit No. 1 . . . along with Exhibit 1A, Letitia James, the state attorney general and now — surprise! — newly announced candidate for Cuomo’s old job.

It is important to grasp here that two things, though potentially contradictory, could simultaneously be true: a) Cuomo is as guilty as the day is long, and b) Cuomo will not be found guilty because his due-process rights are being undermined by politicized law enforcement, to which an iffy case can be especially vulnerable.

The then-governor may well have groped Ms. Commisso in a manner that would amount to misdemeanor nonconsensual sexual touching under Empire State penal law. As a political matter, moreover, there would be nothing unfair or inappropriate were you, good citizen, to presume that he probably did.

Fitness for office is a different question from criminal guilt, although politicians and commentators tend to confound them. Politicians can mewl all they like about how their private behavior should be compartmentalized from their public performance. (In Cuomo’s case both have been appalling, but I digress.) The public, however (and unavoidably), gets to decide what it believes is relevant about a person’s suitability for high office. There need be no provable penal offense, moreover, for legislators to undertake the process of removing the chief executive for abusing power. Public office is a privilege, not a right. It is incumbent on the incumbent continually to demonstrate his worthiness for public trust.

Criminal guilt is different. Liberty — as well as the closely related interest in being spared the stigma of a criminal conviction — is a right, not a privilege. We may be totally justified in concluding that a sleazy pol is a scoundrel who deserves everything bad coming his way; but if his sleaze evolves into a formal criminal charge, he is still presumed innocent in a court of law. Furthermore, those sworn to enforce the law not only have the duty to bring the guilty to justice; they are also obliged to ensure the due-process rights of even blatantly guilty suspects to fair proceedings. Contrary to what you may think at first blush, these burdens are not contradictory. In our system, the integrity of a court finding of guilt, and thus the legitimacy of a criminal penalty, hinges on adequate government compliance with due-process rules. Even terrorists get due process, and we need them to get it so that their convictions and sentences are upheld by the appellate courts.

With that as background, understand what has happened to Cuomo.

As a political matter, it is appropriate for New York law to empower the state attorney general to appoint independent investigators to probe alleged misconduct by public officials. It was equally proper for the legislature, when considering whether to commence impeachment proceedings against Cuomo, to wait for the attorney general’s findings — though it is not necessarily prudent to do so, since the legislature has its own investigative powers.

Under these circumstances AG James produced a report that summarized allegations by eleven women that Cuomo had engaged in sexually suggestive commentary and nonconsensual touching. These incidents, if they happened, may have amounted to sexual harassment under state and federal law. The Commisso incident, if proved, may have been a misdemeanor sex crime. James’s investigative narrative about these incidents came on the heels of her other explosive report, months earlier, in which she alleged that Cuomo’s office had undercounted the number of nursing-home COVID deaths — under circumstances where Cuomo’s executive order forcing the facilities to take COVID-infected patients was a significant contributory factor.

To repeat, this may be fine for politics — provided the political motivations of the investigators are factored in (we’ll come to that). For criminal-law purposes, however, James’s reports are grossly unfair.

In a normal investigation, police and prosecutors may learn all kinds of unsavory information about the suspect. Yet, in any public charging document, they are ethically restricted: They may allege only what they reasonably believe they can prove under whatever standard applies — guilt beyond a reasonable doubt in criminal cases, liability by a preponderance of the evidence in most civil cases.

James, an ambitious progressive, issued these reports at the very time she was deciding whether to use the high profile of her AG’s office as the launchpad for a gubernatorial run (the same way Cuomo himself, and the comparably odious Eliot Spitzer, parlayed the AG gig into successful campaigns for governor).

Conveniently, in compiling her report, James decided to construe her mandate as only to conduct an investigation and publicly announce findings, not to bring legal action that would need to hold up in court. That is, though she has jurisdiction to file civil complaints and formally refer criminal charges to state district attorneys (and in some instances to bring criminal charges on her own), she chose not to do that. Unlike regular prosecutors, who must leave the salacious but thinly sourced claims on the cutting-room floor, James did not worry about whether her claims could withstand the crucible of cross-examination in court. If it made Cuomo look bad, she published it.

This was abusive under the circumstances. Because she is AG, James knew that the media and public would ascribe to her reports a presumption of authority. By contrast, if she had filed charges in court, the public (i.e., the jury pool) would have been reminded repeatedly that an indictment is only an accusation, that it proves nothing per se, and that the accused is presumed innocent. Because the New York tabloid feeding frenzy was on, because the state legislature had commenced an impeachment investigation (however half-heartedly), and — let’s not forget — because Cuomo is a whiny jackass who made matters worse for himself every time he spoke publicly about the allegations engulfing him, James’s sexual-harassment report was too devastating for the governor to survive.

Survive politically, that is. Surviving legally is a different matter.

From the standpoint of potential criminal or civil liability, James’s report is underwhelming. You may have noticed that district attorneys have not tripped over themselves to file criminal charges or civil suits based on it. The state assembly did not rely on it to impeach Cuomo. Perhaps they would have, had he not resigned. But keep in mind: New York Democrats uniformly argued that President Trump’s exit from the Oval Office was no reason to refrain from impeaching him in order to try to disqualify him from holding office in the future; somehow (can’t imagine why!) Democrats drew the opposite conclusion regarding Cuomo — they decided not to rely on James’s report to impeach him after he vacated the governor’s mansion.

The only criminal charge against Cuomo arises out of a sheriff’s complaint, based on Apple’s office’s investigation of Brittany Commisso’s allegation. Her claim, and more detail about her interactions with the then-governor, are described extensively in James’s report (at pp. 1-2 and 16-32). Apple’s office was made aware of the allegation before the AG’s report, but Commisso did not formally file a police report until shortly afterward, and Apple has investigated it independently. It is not yet clear whether the resulting complaint will trigger a prosecution. Despite having investigated the case for months in conjunction with the office of Albany district attorney P. David Soares, Sheriff Apple did not coordinate with Soares on the publication of the complaint. DA Soares, the only official who has the authority to prosecute Cuomo on the charge, said he was surprised to learn that a sheriff’s complaint, and a summons ordering Cuomo to appear in court on November 17, had been issued.

What’s going on here?

Apple is not merely a law-enforcement officer. Albany County sheriff is an elected office. Apple is not just an investigator weighing what the rule of law calls for. He is a politician appealing to a constituency — a Democrat backed by the party machine in Albany.

Apple’s political proclivities were on display in August when the initially reluctant Commisso first came forward to make a formal report to the sheriff’s office. Apple held a press conference that Saturday to announce this unremarkable fact. There was no law-enforcement justification for this. Police and prosecutors receive complaints all the time but do not even acknowledge that investigations are underway, much less make announcements describing uncharged allegations. Law-enforcement officials are not supposed to make public statements about a case until there are formal charges that the accused, represented by counsel, is in a position to defend in court — and even then, government officials are supposed to stick to the four corners of what is pled in the formal public charge.

Though he admitted that his office had not yet even interviewed Commisso or gotten access to evidence from James’s investigation, Apple repeatedly referred to Commisso at the press conference as Cuomo’s “victim.” When a charge has not even been filed yet, much less proved in court, any veteran law-enforcement official knows that this improperly undermines the presumption of innocence and fair-trial rights of the suspect. That — as I imagine DA Soares may have mentioned to Apple — gives the suspect arguments to make in court and thus makes conviction more difficult.

Commisso filed her police report with Apple’s office fully three months ago, so it is laughable for the sheriff now to claim that he did not have enough time to consult with Soares or with Commisso’s lawyer before the complaint was made public. Plainly, he is trying to force the prosecutor’s hand on a case that Soares probably sees as weak despite Apple’s public insistence to the contrary.

Understand: A prosecutor’s apparent concern about whether the case is strong enough to merit charges does not mean Cuomo is innocent. It just means that a criminal prosecution is very different from a rules-free AG report.

In a criminal trial against Cuomo, Commisso would appear as a single complainant behind a single charge, not as one of eleven women complaining about sundry incidents alleging varying degrees of harassing behavior (all obnoxious, few potentially actionable). The only issue in the trial would be whether the state could prove Commisso’s claim, standing alone. The court would almost certainly have to consider it in isolation, without evidence from the other ten complaining women, since conviction could only properly be based on proof of the charged crime. Judges tend to exclude so-called similar-acts proof (which in this case would be the accusations by the other women outlined in James’s report), because conviction may not be based on an inference of the defendant’s criminal propensities derived from proof of uncharged crimes. (In June, after Bill Cosby’s sex-crime convictions were reversed, I discussed why the court might have thrown them out based on too much similar-act evidence had there not been a strong alternative basis for reversal.)

In a trial it would be Commisso’s word against Cuomo’s. A conclusion that hers is probably the more credible account would not be sufficient; conviction requires proof beyond a reasonable doubt. Commisso’s credibility and reliability would come under withering attack from Cuomo’s highly effective defense lawyers. This would include, for example, the fact that there have clearly been conflicting accounts about when the alleged groping occurred (James’s report says it happened on November 16, 2020; Apple’s complaint puts it three weeks later, on December 7); the fact that Commisso does not appear to have complained to anyone contemporaneously (which is one reason why the date is hard to fix); whether her version of what happened is believable (in light of the setting, in which other people were hovering nearby — as well as whatever those people may recall about Commisso’s demeanor immediately after the alleged incident); and whether she continued to maintain a cordial relationship with Cuomo following the incident.

DA Soares could be convinced that Commisso is being truthful but still harbor doubts about whether Cuomo could be convicted. There is also undoubtedly concern that, if Cuomo were acquitted, it would not only be humiliating for Soares; Cuomo would use an acquittal to cavil that he was driven from office by a politicized witch hunt.

Meantime, though Apple did not consult with the prosecutor on the case, he did manage — inadvertently and totally coincidentally, of course — to publish his complaint on the very same day that James announced that she is a candidate for governor. And though Apple and James insist they aren’t cooperating politically, James did contend that the complaint filed by Apple stands as vindication of her report.

The dissolute former governor may well be guilty. But proving it will not be easy, not least because the law-enforcement officials in this notoriously corrupt state have given him plenty to work with. And the prosecutor seems to be worried about that.