NY Times: Cuomo Could Be Vulnerable On Moreland Tampering Charges

When Cuomo created the Moreland Commission, he claimed it would be an investigative panel independent from his office:

Last July, Mr. Cuomo said it would be “an independent commission that is free to investigate whatever they believe needs to be investigated on the merits.” The next day, he promised that its members would be “totally independent.” He also financed a television commercial describing the panel as independent.

After US Attorney for the Southern District Preet Bharara made noises that he was going to look into stories of Cuomo's alleged tampering into the Moreland Commission's investigations, Cuomo said this:

 It’s not a legal question,” the governor said to Crain’s New York Business, after the top federal prosecutor in Manhattan, Preet Bharara, had publicly rebuked him over his decision to close down the panel, known as a Moreland Commission.

“It’s my commission,” he said. “My subpoena power, my Moreland Commission. I can appoint it, I can disband it.”

“I can’t ‘interfere’ with it, because it is mine,” he added. “It is controlled by me.”

The NY Times reports this morning that Cuomo is indeed vulnerable to charges of commission tampering whether he likes it or not:

The Moreland Commission, which was represented by the office of Attorney General Eric T. Schneiderman, said the governor’s comments were beside the point because the subpoenas were approved by the panel’s three co-chairmen, “not by the direction of the governor.”

"The governor’s personal intentions when he first established the commission are therefore not relevant because the governor chose to create a commission with independent authority to make investigatory decisions that he does not control,” the commission argued.

Mr. Cuomo’s explanation that he “controlled” the Moreland Commission also appeared to contradict his own previous statements. On multiple occasions, he has described the commission as “independent.”

A spokeswoman for the governor, Melissa DeRosa, suggested that there was no contradiction.

“A commission formed, staffed, administered and funded by the executive cannot by definition be legally independent from the executive," she wrote in an email. "However, the governor said that investigative decisions would be made independently by the three bipartisan co-chairs." She said the Moreland Commission’s arguments in the court papers were “completely consistent with that.”

The governor’s position took on new significance this week with a report that Mr. Bharara’s office had issued grand jury subpoenas seeking correspondence and other documents from all the commission’s members.

The commission’s assertions in court in January could complicate Mr. Cuomo’s efforts to advance the argument that the commission was an arm of his office — and thus, it would seem, that there could be no potential crime to investigate.

The prosecutors appear to see things differently, based on the way the subpoena for communications was drafted, according to people who have seen it.

In short, Cuomo can claim anything he wants to the Crain's editorial board about the commission being his and thus there can be no tampering charges levied against him since he controlled the commission.

Prosecutors don't see it that way and Cuomo himself stated otherwise in the public record - including a television ad he ran touting the commission's independence.

This is something to watch closely because it's quite clear from the multiple stories that have circulated that Cuomo's office put the kibbosh on subpoenas aimed at his donors and/or tampered with official commission investigations in other ways that he and his minions are vulnerable to the charges.

I don't want to get ahead of the story too much here, but the potential is there for this governor to be occupied with some serious legal matters during his second term.