Legal experts are divided on the merits of a possible case against Andrew Cuomo

Former Gov. Andrew Cuomo gained national popularity for his handling of the COVID crisis five years ago.

But as the pandemic wore on, his role became more controversial, in part due to criticism of an order he gave for the state’s nursing homes to accept patients stricken with the virus.

Now, the New York Times is reporting that Cuomo, the Democratic mayoral frontrunner, is facing a Justice Department probe related to a report on how the virus spread in state nursing homes. The Times report said federal investigators opened an investigation last month into whether or not Cuomo lied to a congressional subcommittee investigating New York’s 2020 pandemic response. In a statement, a spokesperson for Cuomo denied wrongdoing and called the probe politically motivated.

Legal experts who spoke to Gothamist were divided on the merits of a possible investigation. Many see it as a political stunt. But if prosecutors do bring charges, experts disagree as to whether they will stand up in court.

The allegations

Critics first questioned Cuomo’s handling of the pandemic after he issued a directive in March 2020 that required state nursing homes to accept COVID-19 positive patients, which critics said led to the spread of the virus among older residents.

In July of that year, the state Department of Health issued a report blaming nursing home staff – not the governor’s directive – for the nursing home deaths.

As outrage from critics grew, multiple agencies investigated the state’s response, including Attorney General Letitia James and later the Congressional Select Subcommittee on the Coronavirus Pandemic.

Cuomo testified numerous times before the subcommittee last year and told lawmakers he was not involved in drafting the July 2020 report that shifted blame for the nursing home deaths to staff at the facilities. At times, though, he said he did not recall specific details about the drafting of the report.

The committee concluded he was involved in editing and drafting the report. Congressman James Comer, a Republican from Kentucky, later referred Cuomo to the Justice Department for prosecution for allegedly lying to the subcommittee, a federal crime.

What experts say

Legal experts who spoke to Gothamist about the few public details were split on the merits of the reported investigation. The law Comer cited in his referral to the Justice Department makes it a crime to knowingly make a false statement to Congress. Under the law, prosecutors would also have to show that any false statement was “material” – or influential – in the subcommittee's investigation.

Former prosecutors who spoke to Gothamist said any case brought under the law could hinge on whether Cuomo intended to mislead lawmakers, and whether an alleged false statement influenced their investigation.

Barbara McQuade, a professor at the University of Michigan Law School and former federal prosecutor said it’s unlikely Cuomo violated that law.

“It is hard to see how his characterization of pandemic deaths could satisfy the statute,” she said in an email.

Harry Sandick, a defense attorney who previously served in the criminal division in the Southern District of New York, said the fact that Cuomo said he could not recall the drafting of the report could cut in his favor.

If Cuomo did edit the report, but was clear with the subcommittee that he just did not remember doing so, it will be difficult to prove that he intentionally lied, Sandick said.

“It's hard to see that's an intentional falsehood,” Sandick said.

But two other former federal prosecutors said investigators may be able to make a convincing case that Cuomo’s statements influenced the investigation or were “material,” according to the statute. John Fishwick, a former federal prosecutor from Virginia, said Cuomo’s statements could be influential to the subcommittee’s investigation if they show he tried to downplay the number of nursing home deaths and what he knew about them.

“I think they will be able to get over the hurdle that this is a material fact. It's not something minor,” he said.

James McGovern, the former Chief of the Criminal Division of the U.S. Attorney’s Office for the Eastern District of New York, said if prosecutors focus on the July 2020 report, Cuomo’s role in editing it could be influential to their investigation.

“I think it would be a pretty solid argument that that was material to what they were looking into,” he said.

The politics at play

Cuomo is leading in the polls for the Democratic mayoral primary that’s scheduled for June. If he wins, he’ll likely face off in the general election against Eric Adams, who is running as an independent and on other party lines.

Weeks ago, the Trump Justice Department dismissed federal corruption charges against Adams. Critics say the move was blatantly political and designed to make Adams beholden to the Trump administration and influence his immigration policy in the city.

Randall Eliason, a law professor and former assistant U.S. attorney in Washington, said politics may have been involved in the opening of the reported Cuomo investigation as well. He said the move by the Trump administration may be designed to hang a specter of an investigation over Cuomo, a Democrat, as the election approaches.

Eliason said the Justice Department could likely secure an indictment, but not a conviction. But convicting Cuomo, he said, might not be their goal.

“They can certainly make his life miserable, even if they don't convict him,” he said. “It's completely improper and very distressing.”

Sandick said it would be unusual for the Justice Department to initiate a case like this.

Prosecutors are supposed to bring cases with no consideration for a person's politics or allegiances. He said normally, prosecutors would only bring charges if it was obvious and provable Cuomo had lied. But this case is muddier, he said.

“You obviously should not be factoring in whether this person likes the president, whether the person is running against an ally of yours in an election,” he added. “That should all be totally irrelevant."