Former New York governor Andrew Cuomo, who resigned in disgrace late last year, will apparently not be charged by state prosecutors for providing misleading information about the number of Covid-19 deaths attributable to nursing-home patients.
Cuomo’s private defense counsel, Elkan Abramowitz, announced on Monday that he had been advised by the Manhattan District Attorney’s Office that its investigation into the matter has been terminated. As I’ve related before, Abramowitz, a former top federal prosecutor and long among New York’s best defense lawyers, is a straight shooter — if he says he was told the case has been closed, then he was told the case has been closed. The lawyer said the Cuomo camp was alerted by the chief of the DA’s Elder Abuse Unit, so it is not clear whether the decision to drop the matter was made by Alvin Bragg, the new Manhattan DA, or by Cyrus Vance, Bragg’s predecessor whose term ended on Saturday (i.e., New Year’s Day).
There is probably no mystery here. Cuomo and his top advisers misled the public and state officials (and perhaps the Justice Department — the FBI and federal prosecutors in Brooklyn are reportedly still looking into that). But what is indecorous is not necessarily criminal.
The deceit is clear. State attorney general Letitia James issued a report detailing the governor’s undercounting of nursing-home deaths in 2021 (which turned out to be the beginning of the end for Cuomo). Cuomo’s principal aide, Melissa DeRosa, reportedly admitted to state lawmakers that the administration had deceived them, and the governor’s office further pressured state health officials to lowball the nursing-home Covid deaths in what was supposed to be a science-driven medical report.
All that said, though, there is a significant difference between political deceptions and lies that are actionable under the criminal law.
In terms of overall gravity, the former are impeachable offenses because they betray the public trust. As we’ve noted many times over the past few years, however, impeachment is a political process — the stripping of political authority — triggered by abuses of power. Impeachment does not necessitate proof of penal offenses that are typically prosecuted in judicial courts.
Penal offenses, by contrast, are essentially private wrongs, knowingly and intentionally committed in violation of the clear and explicit terms of criminal statutes. To support conviction, crimes must be proved beyond a reasonable doubt, and any lingering questions about the evidence must be resolved in favor of the accused.
The former governor covered up the number of nursing-home deaths because many of them, probably thousands, were attributable, at least in part, to his reckless March 2020 order that nursing homes admit Covid-infected residents. To lowball the number, the governor’s office did not count as nursing-home deaths patients who expired in the hospital, even if they were taken to the hospital only after being infected in a nursing home.
It is not hard to grasp how this could be grist for political deception without amounting to actionable lies.
First of all, lying to the public is not a crime. Generally, perjury or false-statements charges must be based on assertions or material omissions in statements made either (a) under oath in official proceedings (e.g., court testimony), or (b) to public officials — whether or not under oath — in connection with official probes (e.g., police investigations).
More to the point, there is a subtle difference between misleading people and flat-out lying. In its public statements and reports, which were heavily lawyered, the governor’s office could have flatly said X number of people died of Covid in nursing homes and Y number died in hospitals, hoping no one noticed that X was a deceptively low number (though not technically false) because many nursing-home patients had been transferred to hospitals shortly before death (and were thus counted in the Y total). It is reprehensible to engage in such deceit — especially if, like Cuomo, one is masquerading as a master without peer of managing a public-health crisis. But it necessarily follows that any single statement made must have been a prosecutable lie.
To be sure, the reason that false-statement statutes include material omissions is to try to capture this sort of mendacity. A material omission, generally, involves a true but incomplete statement that is intentionally deceptive because it withholds details that the speaker has a duty to disclose.
Still, material omissions are much harder to prove than affirmative lies. The prosecutor has to establish that the speaker knew he had a duty to reveal the withheld information and that the concealment was intentional. That depends on the circumstances: Exactly what question was asked, who asked it, what was the forum, could the omission have an innocent explanation? It is just the nature of things that proving a negative beyond a reasonable doubt is very difficult. By comparison, it is far easier to show that a concrete, affirmative false statement was false and made with an intent to deceive.
To my mind, it is unfortunate that prosecutors were public about considering whether to charge Cuomo criminally. Such an indictment was always highly unlikely, not because Cuomo is innocent but because of evidence hurdles. Yet, Cuomo will now exploit the DA’s dropping of the case as if it were vindication. It is not. Governor Cuomo deceived New Yorkers and their elected representatives over a matter of immense importance. Had he not resigned, he should have been impeached over it.