Cuomo's camp contends his office had the right to guide the panel under the language of the 1907 Moreland Act, which allows the governor to investigate any executive branch agency or related entity. While past governors have used the statute to examine the inner workings of government and specific industries, it does not give the governor power to directly investigate the Legislature.
But Cuomo's public corruption panel, created a year ago and scrapped in March in exchange for a reduced package of ethics reforms tucked into this year's state budget deal, was special: By allowing Attorney General Eric Schneiderman to give the lawyers who served as commissioners the powers of deputy attorneys general, Cuomo argued that he had created a body that could look into the scandal-scarred Legislature.
It's a tactic that legal scholars and others contend effectively stripped the executive branch of its lawful ability to steer the panel.
"This entity was never a Moreland Commission — it was a hybrid," Richard Brodsky, a former assemblyman and senior fellow at the public policy organization Demos. "Part of it was a Moreland Commission; part of it was an attorney general investigation. ... These folks had a legal obligation to make independent judgments and not do what they were told."
Former Republican Attorney General Dennis Vacco said it was "improper" for Schwartz to get involved in the commission's activities, and believes Schneiderman should have played a more involved role.
"It appeared to me at the time (the panel was announced) that Schneiderman was a partner in this and had appointments on it in order for them to have the clout of a prosecutor," Vacco said Wednesday. "... Because these were his deputies, Schneiderman had a greater responsibility to the investigations than just a passive appointee to the Moreland Commission. He had an obligation to effectively manage them and their investigations. ... If they were being thwarted, he had an obligation to speak up."
Will Cuomo or his aides face criminal charges for tampering?
Even considering the hybrid nature of this Moreland panel, Albany Law School professor Vincent Bonventre said Cuomo and his aides likely won't face legal repercussions for simply trying to steer its work.
"Politics is a lot about giving and taking and compromising and making deals," Bonventre said. "If we're talking just about that, there's no criminal conduct. If on the other hand what the evidence shows is that a politician made a deal to cover up evidence of political corruption that is criminality, then you'd have sufficient evidence for an obstruction of justice charge and other kinds of charges having to do with political corruption."
So it seems that unless Bharara decides to investigate further why Cuomo and his aides put the kibbosh on subpoenas to entities tied to the governor and finds criminality there or if he finds a quid pro quo deal to cover up evidence of legislative criminality in return for, say, an on-time budget, the very act of putting the kibbosh on the subpoenas doesn't necessarily put Cuomo or his aides in legal jeopardy.
That doesn't mean he's not hurt by the scandal already.
From now on, any time he tries to talk about integrity, people are going to laugh at him.
From now on, any time he tries to create another "independent commission" on anything (and remember, he loves commissions), people are going to laugh at him.
From now on, any time he talks about being the most transparent governor in the history of New York, people are going to laugh at him.
And this scandal diminishes whatever chances he had at making a White House run - in fact, even if Bharara decides not to pick up the investigative trail that Moreland couldn't, it's no bet some in the national press won't if Cuomo decides to run for president.
That's where I think things stand right now.
Of course that all changes if Bharara is not only following up on the leads Moreland found on the legislature, but also the ones they couldn't follow on the executive or he finds evidence of a quid pro quo deal between Cuomo and some member of the legislature to cover up corruption in return for something in the budget that Cuomo wanted.
No matter what happens, we now have a governor with a publicly sullied reputation who had to cancel a personal appearance last night because he didn't have the courage to face the press and take questions on the Moreland scandal.
This does not bode well for Cuomo's re-election campaign or, if he wins, his second term as governor.
The Cuomo we saw in the first term, the swift operator who bullied his way over and through people to get his way on pretty much everything he wanted, is now gone.
Now we have a governor in hiding, loath to make personal appearances lest he be forced to face the press and have to go on record about his conduct in the Moreland mess.