Quirky N.Y. Law Prevented AG James From Charging Cuomo
(Bloomberg) -- When New York Attorney General Letitia James announced Tuesday that an independent probe found Governor Andrew Cuomo sexually harassed almost a dozen women, the state’s top law-enforcement officer never had the option of filing criminal charges against him.
Under New York’s executive law, the attorney general can’t open criminal investigations or bring charges without a green light from the governor or one of his department heads. James never got such approval.
The law is so quirky that James needed a hard-fought referral from Cuomo’s office in March simply to open her limited civil inquiry, which culminated in a damning 165-page report. Her role ended there, though local district attorneys still have the ability to prosecute Cuomo if they choose.
“The NYAG lacks jurisdiction to prosecute most state crimes without a formal referral from the governor,” said Scott R. Wilson, a deputy state attorney general until 2013 who’s now a corporate litigator at DLA Piper LLP in Manhattan. “Offenses like forcible touching are investigated by the district attorney where the alleged conduct occurred.”
Indeed, James explicitly said in her report that she wasn’t making any conclusions on criminal conduct.
“While concluding that the governor engaged in unlawful sexual harassment, we do not reach in this report a conclusion as to whether the conduct amounts to or should be the subject of criminal prosecution,” James said in a footnote of the report.
Cuomo has denied touching women inappropriately and has apologized for making anyone feel uncomfortable. To address the governor’s demand that the attorney general’s investigation not be biased, James hired two outside lawyers to conduct it: a former federal prosecutor and a prominent employment-bias lawyer.
Even if James were to get a referral to prosecute a case herself, it would be difficult for her to do so now, given that she’s already reached a conclusion about Cuomo’s actions and condemned his behavior, said Bennett Gershman, a professor at Pace University Law School in New York.
James made “extremely prejudicial statements about his conduct that would make it difficult or inappropriate to prosecute him herself,” Gershman said.
Attention will now focus on whether local officials open their own criminal cases against Cuomo.
Manhattan District Attorney Cyrus R. Vance Jr. said Wednesday he will look into the allegations outlined in the report, which include some incidents that allegedly took place in the New York City borough. The district attorneys in Albany and Westchester have also requested information from the state’s investigation.
©2021 Bloomberg L.P.