Cuomo's Legal Troubles - It's What We Don't Know That Matters Most

Two pieces out on Cuomo's legal jeopardy today, one by Jeff Smith at Politico and the other by Blake Zeff at Capital NY, both of which report Cuomo is in some trouble over the Moreland mess.

Jeff Smith at Politico says Andrew Cuomo's got serious problems because now that he's given them the open, prosecutors could be looking into anything:

Andrew Cuomo is in serious trouble. Preet Bharara, the hard-charging U.S. attorney for the Southern District of New York, has turned up the heat on his administration's alleged interference with an anti-corruption commission he appointed, and for the first time in the New York governor's four-year tenure, he's lost control of a situation. That's an awful feeling for any politician, but especially for one who so prizes control, and who prides himself on playing political chess while his opponents play checkers. It's the classic tale of a pol so consumed with avoiding a short-term image hit that he risked his long-term freedom. (I know the story well, because five years ago this week I lost control of a similar situation and ended up in prison for obstruction of justice.)

Smith recounts how two Cuomo aides - Larry Schwartz and Joseph Percoco - are reported to have helped Cuomo meddle with Moreland, looks closely at the law and what he knows can happen when federal prosecutors start to look into you and concludes:

U.S. attorneys don’t get together and swap stories about the time they brought down a political staffer, and they don’t become U.S. attorneys general that way, either. Make no mistake: Bharara wants Cuomo’s scalp, and he has two people he can leverage to get it, if indeed the governor blessed the original thwarting of subpoenas, the more recent pressure on commissioners to make false statements backing up his denial of interference, or both.

Unfortunately for Cuomo, some obstruction statutes treat accomplices before the fact as principals, which means that he would be liable for anything Schwartz or Percoco did, provided he had advance knowledge. And given his legendary micromanagement – Cuomo is famous for producing groundswells of support at opportune junctures, whether on behalf of policy initiatives or his own career advancement – it’s hard to believe that he wasn’t at least aware of his aides’ actions. (As ex-governor David Paterson wryly observed amid mounting pressure to abandon his re-election bid and make way for then-Attorney General Cuomo, “Drumbeats remind me of orchestras, and orchestras remind me of orchestration.”)

If a sole aide is implicated in an effort to protect his boss, he’ll sometimes take the fall by saying that he acted independently, hoping that his boss – especially one about to easily re-elected to a powerful governorship – will appreciate his extraordinary loyalty and remember him post-prison. That option might be preferable to giving up one’s boss, an act that makes a high-level political adviser essentially unemployable by other politicians, lobbying firms and trade associations.

But if there’s a second aide who is implicated, and whose proximity to the principal affords knowledge that the principal approved – or even orchestrated – a cover-up, the calculation is very different. The first aide is no longer simply weighing the benefits of cooperation (a substantially reduced sentence) against the costs (the cognitive dissonance of betrayal and future reputational damage); he is now weighing the odds that the other aide might implicate him first, rendering his own information nearly useless. That’s the crux of the Prisoner’s Dilemma, and it’s why each player’s dominant strategy, according to the game theorists who use it, is to snitch before the other guy can.

Smith pushes back against some of the conventional wisdom that has made it into the papers, particularly in the Daily News from Bill Hammond, that Bharara has nothing on Cuomo legally:

Many, including New York Daily News columnist Bill Hammond, believe that Cuomo will walk. Hammond – and some criminal defense attorneys who agree with him – offer several reasons for this, most notably Bharara’s limited federal jurisdiction over this state investigation of state officers. 

However, legal precedent that prosecutors need not prove that an official federal proceeding was pending during the alleged offense, nor must they prove that the offender is aware of an investigation’s federal character. Indeed, according to holdings in New York’s own 2nd Circuit and in the neighboring 3rd Circuit, a defendant’s belief that a witness is reasonably likely to confer with federal authorities can be inferred from the nature of the offense and additional appropriate evidence; Bharara’s seizure of the Moreland Commission’s files, unambiguous public announcement of his intent to investigate and serial prosecutions of Albany legislators since taking his post would seem to provide sufficient evidence. In simpler terms: Ignorance of an investigation is no defense.

Hammond also seconds Cuomo’s argument that he can’t possibly interfere with his own commission, citing the precedent of pre-Depression-era Gov. Al Smith, who twice appointed himself the sole Moreland Commission member. But Smith did not deputize 34 commission members as deputy attorneys general with autonomous law enforcement power, which seems to render the comparison moot.

By Hammond’s account, prosecutors would be hard pressed to discredit repeated public statements from commissioners who have denied any improper interference or intimidation. Yet it would seem that a jury might weigh other evidence of interference – documents and, potentially, sworn statements buttressing that evidence – more heavily than public pronouncements made only after pressure from Cuomo aide Percoco, who even offered to draft the statements, according to multiple sources.
Lastly, Hammond argues that the commission’s eventual pursuit of many inquiries to which Cuomo objected indicates that any attempted Cuomo interference was ultimately ineffectual. That’s not unlike arguing for a terrorist’s innocence after the bombs he planted failed to detonate. The commissioners’ apparent steadfastness absolves the Cuomo administration of nothing.

As I wrote when New Jersey Gov. Chris Christie’s George Washington Bridge fiasco broke, federal prosecutors aren’t limited to investigating the matter that first attracted them to a target; probes often widen as new information emerges. Like wartime generals, federal prosecutors rarely have just one attack route. Just as they brought down Al Capone for income-tax evasion, not bribery, bootlegging or murder, they could end up indicting Christie for any number of other imbroglios about which troubling facts have emerged since the “Bridgegate” story broke. As someone who did time after a five-year, off-and-on inquiry that began with an examination into a 3x5 campaign postcard and ended in obstruction-of-justice charges due to discoveries from an unrelated investigation into a car bombing (!), I’m well-acquainted with the unforeseen places to which these inquiries can lead.

Blake Zeff has a piece at Capital NY today that reports Bharara may have an easier time proving witness tampering after the fact by Cuomo aides than meddling with the commission's initial work to obstruct justice:

When it comes to the underlying allegation of meddling in the investigations, the language in this statute does present jurisdictional challenges for Bharara, though not necessarily the one that keeps getting cited.

While pundits and legal observers have questioned whether a federal prosecutor can look into a state entity like the Moreland Commission, Bharara and others do this all the time. (If you don’t believe me, ask incarcerated former state senator Vincent Leibell about the feds’ ability to look into Albany dealings).

Instead, the key challenge for the federal prosecutor when it comes to the accusation of interference into the Moreland leads is demonstrating that the quashed subpoenas aimed at entities like Cuomo’s media buying firm might have compromised federal investigations (or potential ones).

In other words, were the firm Buying Time or the Cuomo support group Committee to Save New York the subject of federal interest? This is not impossible, but you can see why establishing the link presents a high bar.

By contrast, the same statute is far more straightforward when it comes to alleged efforts to influence the statements of the commissioners. Consider that Bharara had already made clear there was a federal investigation into Team Cuomo’s handling of the Moreland Commission. By definition, that key jurisdictional hurdle—whether a federal investigation was at stake—is cleared.

Add to that the fact-pattern that exists in public reports:

• Bharara reveals he's interested in the Moreland Commission's activities.
• Commission co-chair William Fitzpatrick reportedly says that top Cuomo aides asked them to pull back a subpoena and that he was exasperated by the role of the governor’s office in the commission, saying “the interference has got to stop,” according to a participant of a meeting he had with the governor’s top aide Larry Schwartz.
• Days after the initial Times report, Fitzpatrick (whose wife is reportedly up for re-appointment for a judgeship next year by Cuomo if he wins) puts out a statement writing something quite different: “The bottom line is nobody ‘interfered’ with me or my co-chairs.”
• Later that week, the Times Union reports that “Joseph Percoco, a longtime political aide to Gov. Andrew Cuomo, contacted several members of the state's now-shuttered anti-corruption commission in the past week and encouraged them to make public statements supporting the governor and affirming the panel's independence.”
• The story adds that prosecutors said they “would be interested in interviewing any commissioners whose public statements might be contradicted by commission records and internal communications, according to information provided to the Times Union.”
• It’s further reported by Ken Lovett of the Daily News that Moreland co-chair Kathleen Rice and others who served on the commission were “livid that the governor and his team last week sought public statements of support from members of the now-defunct panel, sources say.” 
• Lovett has a commission-linked source accusing Fitzpatrick of “carrying water for the governor while everyone else is being candid with the U.S. attorney and trying to help protect the integrity of the investigation by not speaking out.”
• He further reports that Rice and Milt Williams, the commission’s third co-chair, were not pleased when Cuomo suggested they agreed with Fitzpatrick’s statement attesting to the panel’s independence. 
• While Cuomo told reporters, “I’m sure if they had a different opinion you would have heard from them,” a spokesman for Rice bluntly told Lovett: “It was not a joint statement.”

Another development may also matter to investigators in this context.

The panel’s investigations chief, Danya Perry, reported to have quit due to concerns about the governor’s office’s meddling, recently took a job with former top Cuomo aide Steve Cohen at MacAndrews & Forbes, Lovett reported. While a trustworthy source who knows both Perry and Cohen emphasized that both were high-integrity professionals, the person added that the appearance and timing of the move would give prosecutors little choice but to look into it.

Put all this together with the likelihood that some members of the commission are talking to prosecutors (and leaking to reporters), and starts to look like a charge of trying to influence a witness in a federal proceeding would be easier for Bharara to bring in connection with the commissioners' statements than with the administration's dealings with the commission itself.

The most important issue for me is whether Bharara would limit his investigation to Cuomo administration tampering during and after the Moreland Commission or whether he might pick up the strands of the Moreland Commission investigations into Cuomo donors that were short-circuited by Cuomo administration meddling.

I have a difficult time seeing why Bharara would limit himself only to tampering and not pick up other strands of the Commission work, especially since he said the following:

A powerful federal prosecutor on Wednesday reiterated his pledge to pick up where Gov. Andrew Cuomo's anti-corruption commission left off.

Late in the interview, Rose briefly asked Bharara about his previous criticism of Cuomo for abruptly shutting down the Moreland Commission in March. Cuomo had appointed the panel nine months earlier with a charge of investigating public corruption in New York.

Bharara noted his office has received the documents at the center of the various investigations that were halted when Cuomo disbanded the commission.

“Our interest above all other interests is to make sure that the job is getting done, because we are the people who do our jobs," Bharara told Rose. "So we asked for and received -- we were voluntarily offered -- all the documents that have been collected by the commission so the work could continue, because if other people aren’t going to do it, then we’re going to do it. That’s our main mission."

"We have the documents and we have the resources and we have the wherewithal and we have I think the kind of fearlessness and independence that is required to do difficult public corruption cases.”

In addition, I have difficulty believing that somebody as politically astute as Bharara - he made his political bones working for Chuck Schumer - would go toe-to-toe with Andrew Cuomo in public, chastising him for shutting down the commission, warning him that coordinating statements from Moreland Commission members after the fact was potential witness tampering and obstruction, unless he really had something on Cuomo.

I dunno, I could be mistaken, but if after all the public wrangling between Bharara and Cuomo, if this all just ends up with a sternly-written report about executive meddling in commission work, Bharara's going to look like a chump and Cuomo will make sure the world knows it.

Much of the conventional wisdom around the case - that Cuomo's got no legal jeopardy to worry about because federal prosecutors will have a difficult time proving he broke federal laws and they have "limited federal jurisdiction over state investigations of state officers" (as Jeff Smith put it) - is based on what is known about the Moreland matter that is in the public record.

It's what we don't know that Preet Bharara does know about Moreland that matters most here.

Has Bharara picked up the Moreland investigations into Cuomo donors that Cuomo administration officials put the kibbosh on?

Was Bharara investigating anything before Cuomo shut the commission down that linked to commission work?

What pressure is Bharara putting on Schwartz and Percoco?

What has he been told by Moreland Commissioners that hasn't made it into the public record yet?

While it's possible we have all the information about the Moreland mess, it's a lot more likely there's a lot we don't know about the Moreland matter, a lot we don't know that Bharara does know, and a lot that is happening behind the scenes that renders the speculation of journalists and defense attorneys based upon what is in the public record not much use.