Cuomo Pushes Back Hard Against Bharara From Behind The Scenes

US Attorney for the Southern District Preet Bharara warned Governor Andrew M. Cuomo to stop tampering with potential witnesses in his Moreland Commission investigation a couple of weeks ago, but that hasn't stopped Cuomo from meddling in the matter.

After the Bharara warning, Cuomo said the U.S. Attorney had made it clear that “on going public dialogue is not helpful to his investigation,” and the governor would “have no additional comment on the matter.”

But neither the Bharara warning to stop meddling with witnesses nor Cuomo's assertion that he would make no more public statements about the Moreland investigation are keeping Cuomo and his camp from manipulating and finagling things behind the scenes.

To wit, take a look at the events of the last three days.

On Thursday we got Charlie Rangel, a politician with some links to Cuomo (and ethics issues of his own) attacking Bharara in public statements:

Gov. Andrew Cuomo at least has Congressman Charles Rangel in his corner.

Mr. Rangel, who secured Mr. Cuomo’s endorsement during his most recent re-election bid, offered a defense of Mr. Cuomo’s handling of an anti-corruption commission he created, even questioning the validity of a federal investigation now aimed at the governor.

“I know that most of the attacks are coming from the New York Post,” Mr. Rangel told Observer today, claiming the right-leaning tabloid (and not the New York Times, which ran a front page story about Mr. Cuomo’s Moreland Commission) was fermenting the controversy. “We have a commission where the commissioners said that no one interfered with them and we have the New York Post saying they don’t believe them.”

“The fact is, no prosecutor should be critical of anybody until the case goes before the grand jury. That’s our system of government and I’d really hope he’d have a thorough investigation of the whole thing. That’s the only way fair-minded people should look at issues like that,” Mr. Rangel continued, speaking of U.S. Attorney Preet Bharara. “There’s certain people who make the accusations just to make a headline in the newspaper.”

OK, doesn't take a genius to see Cuomo's fingerprints on this attack - Rangel, who struggled for endorsements in his re-election bid, is paying back Cuomo, who did endorse him (albeit late) in the cycle.

And the line of attack is a pattern we're going to see going forward - Preet's an out-of-control cowboy looking to fatten his press clippings scrapbook (“There’s certain people who make the accusations just to make a headline in the newspaper.”)

The Wall Street Journal, a newspaper that often serves as an unofficial public relations outfit for Andrew Cuomo and the Cuomo administration, published an article last night that continues this line of attack:

Manhattan U.S. Attorney Preet Bharara has charted a confrontational and independent course in his investigation of New York Gov. Andrew Cuomo's disbanding of an anticorruption commission, former prosecutors and political observers said.

Mr. Bharara has launched a broad inquiry, including publicly criticizing the governor's dissolution of the commission and using tough prosecutorial tactics, all without seeking approval from the Justice Department in Washington, according to people familiar with the matter.

Prosecutors customarily inform the department of matters of national importance, current and former federal officials say, though the Manhattan U.S. attorney's office, arguably the most powerful of the 93 nationwide, is given more free rein.

George J. Terwilliger, a top Justice official in the Ronald Reagan and George H.W. Bush administrations, and now a partner at Morgan Lewis & Bockius LLP, said prosecutors tread on dangerous terrain when cases spill into public view. "The normal way federal prosecutors operate is they shut up until they put up," he said, speaking generally and not about Mr. Bharara.

Here we see a doubling down on the line of attack that Preet's a cowboy acting on his own - the WSJ report says he has launched a "broad inquiry" (i.e., a "fishing expedition"), taken the extraordinary measure of publicly criticizing one of the potential targets in the investigation (i.e., he should "shut up until he puts up") and hasn't had the Obama White House or Department of Justice sign off on his investigation ("all without seeking approval from the Justice Department in Washington.")

The Journal writer gets some off-the-record attacks from "former federal prosecutors" to back up this line of attack - Bharara's an out-of-control cowboy out on his own:

A key staffer in congressional investigations of the George W. Bush administration's firings of U.S. attorneys, Mr. Bharara has steered an independent path since he was nominated by President Barack Obama in 2009. But his approach to the Cuomo administration investigation has been unusually confrontational, former prosecutors say.

Mr. Bharara's tactics have included criticizing Mr. Cuomo during a radio interview in April for agreeing to disband the commission in exchange for lawmakers passing the ethics-overhaul bill that he sought. Mr. Cuomo has defended the deal.

Mr. Bharara also issued preservation notices to state lawmakers and to the governor's office, instructing them to retain all records and documents related to the Moreland Commission. Generally, former federal prosecutors said, U.S. attorneys simply issue subpoenas.

He took what former prosecutors called a rare step when he sent letters to Mr. Cuomo's office and the commission, saying the administration's contact with commissioners could represent witness tampering or obstruction of justice. Prosecutors generally don't give warning that actions could constitute crimes in the midst of continuing investigations.

There we see the pattern in the line of attack again:

Bharara's taken an "independent path" that is "unusually confrontational" - issuing preservation notices instead of subpoenas, going on the radio to criticize the shutting down of the Moreland Commission, sending warning to Cuomo's office and the commission over potential tampering and obstruction instead of just issuing indictments.

The former federal prosecutors are all off-the-record, of course, but with Cuomo's having been the state attorney general, it's not much of a stretch to see his fingerprints are behind these off-the-record attacks on Bharara as well.

The WSJ writer than picks up Rangel line of attack, that Bharara's investigation is all political, just Preet looking to advance his own career:

Mr. Bharara is employing these tactics as he grapples with Mr. Cuomo, a former state attorney general whose own investigations damaged former Gov. Eliot Spitzer's standing. Until now, Mr. Cuomo had been building a record as a corruption fighter.

Federal prosecutors in the New York City area have a history of using the U.S. attorney's office to launch political careers, including Rudy Giuliani in Manhattan and Chris Christie in New Jersey. Mr. Bharara has publicly denied having any political ambitions, though his investigations of insider trading have earned him national attention.

We do get a friend of Bharara's to back him up at the end of the WSJ piece:

Mr. Bharara's supporters said his prosecutions are apolitical. 

"Preet doesn't care about his win-loss record," said Viet Dinh, an assistant attorney general in the George W. Bush administration and close friend of Mr. Bharara. "What he really cares about are what the facts are and the integrity of his investigation."

But the overall gist of the article is, Bharara's an out-of-control cowboy conducting a criminal investigation for his own political ends and acting in ways that other federal prosecutors who aren't out-of-control would act.

The day before, the same WSJ writer co-wrote a piece that questioned what Bharara really had in this investigation:

Mr. Bharara's probe into the actions of the Cuomo administration with respect to interfering with the commission, dissolving it and the aftermath of that decision is now a top focus of prosecutors, according to people familiar with the probe.

While it is unclear whether he could make a criminal case on that front, Mr. Bharara views the enterprise as a victory even if it doesn't ultimately lead to charges against anyone in the administration, according to a person briefed on the investigation. If his office brings one case that the Moreland Commission failed to refer for prosecution, the investigation will be worth it, the person said.

This article seemed to suggest, as much of the conventional wisdom around the investigation has, that Bharara will not be able to bring any criminal charges against Cuomo or anybody else in the Cuomo administration for witness tampering, obstruction of justice or conspiracy to cover-up crimes, but will have to settle for maybe bringing a couple more cases against lawmakers.

Again, the thrust of the attack - Bharara is out-of-line, out-of-control, and fishing for something he's never going to get.

Bharara may have warned Cuomo to stay out of the Moreland matter, but that hasn't stopped Cuomo and his camp from trying to engineer the narrative of the investigation from behind the scenes.

Seems pretty clear to me that Cuomo is working very, very hard to undercut Bharara and damage both the federal prosecutor himself and the investigation he is conducting with both the public and the media.

It remains to be seen if that kind of attack will work as Bharara continues his investigation and the grand jury he has convened continues to hear testimony and evidence.

But what we don't need to wait to see is Cuomo's desperate maneuvering to try and save himself - if you're watching closely, that's all over the news these past three days.

It's Always The Cover-Up

Blake Zeff on Twitter:

Reminder: It's always the cover-up http://t.co/P4D1Dn3zKw
— Blake Zeff (@blakezeff) July 31, 2014

Stephen Gillers in The Nation writes in an article entitled "Andrew Cuomo's Watergate?" that up until now, he didn't see much for US Attorney Preet Bharara to get Cuomo on, but after Cuomo's shenanigans this week stage-managing his defense, he thinks Cuomo gave Preet an opening:

Before Monday, I and others had been trying to figure out what statutes Bharara may have been looking at. Certainly, he could pursue evidence of corruption by state officials, including lawmakers, whom the Commission had been investigating before it was dismissed, and about which it had files.

But Cuomo's claim that he had a right to disband the Commission, because it was "my" Commission, did not seem to be a basis for federal investigation even if it was a politically foolish decision and defense.

Now,  Bharara has a basis to investigate Cuomo himself and his aides. The statute would be 18 USC 1512(b) and possibly others. It is a crime to knowingly corruptly persuade another to keep information from an official proceeding. That's the Arthur Andersen case in the Supreme Court among others.

There is a sitting grand jury, which is an official proceeding, and former Commissioners must have been aware that they could be witnesses even if not yet subpoenaed.  Cuomo would also be so aware.

Bharara is warning Cuomo that any effort to coordinate a false story (of non-intervention) that these Commissioners would  tell the grand jury if called would be a federal crime. This is so even if their statements are so far only public statements,  even if the effort fails because the Commissioners don't testify. The statute forbids attempts.

Now, as I say, it may all be innocent. The Commissioners who spoke out, and who  prior to doing so may have been contacted by the governor's people to solicit their statements (Bharara says he "has reason to believe" they were), may have spoken truthfully with no "knowing corrupt  persuasion" at play. 

But Monday's events put the governor is at risk in ways he was not before. The US obstruction statutes are incredibly broad. Whoever got the idea to coordinate the concurrent Commissioner statements, assuming there was coordination and not a coincidence,  and even if any such idea was entirely benign, may not have been aware of  what they were handing Bharara for investigation.

NY Times reporter Nicholas Confessore tweeted this earlier:

It is genuinely puzzling that Cuomo, a politician with so many ex-federal prosecutors in his kitchen cabinet, is messing this up so badly.
— Nick Confessore (@nickconfessore) July 31, 2014

I think the answer for why that is happening is fairly obvious, given who Cuomo is:

@nickconfessore It's arrogance & hubris. He thinks he's untouchable, thinks he's smarter/tougher than anybody else.
— realitybasededucator (@perdidostschool) July 31, 2014

In Bharara, Cuomo seems to have met his match.

An Ominous Warning For Governor Cuomo

Mike Allen on The Morning Joe Show:

This is turning into a potentially defining episode for Governor Cuomo, who is of course up for re-election in November and is expected to easily be re-elected. But through all this bad press throughout the ethics commission, this bombshell story last week about how the governor's office had been said to have interfered, the trillion dollar question had been, what nobody was really sure of was, just how interested is the US Attorney in Manhattan, Preet Bharara, in this? He had gotten a lot of documents, but how interested is he in this? Well, this morning we have the answer and the answer is very. The wording of this letter could not be more ominous for the governor. And what happened, just to connect a couple of dots there, the US attorney says in this letter that his office was contacted after these statements of support for Governor Cuomo and the suggestion was that they had been requested, that they had been asked for, maybe somebody had even been pressured to give these statements.

Michael Fiorillo here at Perdido Street School blog:

The vise is closing, and our Reptilian Governor's testicles are about to get caught in it.

It's gonna be sweet watching this awful facsimile of a human being go down...

Until early this morning, I wasn't so sure Bharara was really targeting Cuomo and his administration in his Moreland investigations.

Yes, there had been various signs that he might be heading there, but I didn't want to get ahead of the story - I learned my lesson well in the "Karl Rove sure to be indicted by Patrick Fitzgerald" story back during the Bush administration. 

But after the NY Times story went up around midnight, with Bharara warning Cuomo he would hit him with obstruction and witness tampering if he didn't lay off the intimidation and behind the scenes stage-managing, it finally hit me.

Preet Bharara really is going after Andrew Cuomo.

That letter was, as Allen said on Morning Joe today, "ominous for the governor."

Now who knows, maybe in the end Bharara decides no laws have been broken and Cuomo skates legally in all of this.

Nonetheless, the damage to his national profile has been considerable - Mike Allen again on Morning Joe:

Our sister site, Capital NY, has a story up by Laura Nahmias, pointing out that one problem Governor Cuomo is that there's kinda been a vacuum in his national image, he hasn't done a lot of interviews and this is filling that vacuum.

Can't wait for Cuomo's book tour in the fall - which may or may not happen, depending upon how bad this Moreland mess gets for him.

US Attorney Warns Governor Cuomo Over Witness Tampering, Obstruction Of Justice Charges

The battle between US Attorney Preet Bharara and Governor Andrew Cuomo over the Moreland mess just got ratcheted up some more:

In an escalation of the confrontation between the United States attorney in Manhattan, Preet Bharara, and Gov. Andrew M. Cuomo over the governor’s cancellation of his own anticorruption commission, Mr. Bharara has threatened to investigate the Cuomo administration for possible obstruction of justice or witness tampering.

The warning, in a sharply worded letter from Mr. Bharara’s office, came after several members of the panel issued public statements defending the governor’s handling of the panel, known as the Moreland Commission, which Mr. Cuomo created last year with promises of cleaning up corruption in state politics but shut down abruptly in March.

Mr. Bharara’s office has been investigating the shutdown of the commission, and pursuing its unfinished corruption cases, since April.

 In the letter, sent late Wednesday afternoon to a lawyer for the panel, prosecutors alluded to a number of statements made by its members on Monday, which generally defended Mr. Cuomo’s handling of the commission. The statements were released on the same day Mr. Cuomo first publicly responded to a report in The New York Times that described how he and his aides had compromised the commission’s work.

At least some of those statements were prompted by calls from the governor or his emissaries, according to people with direct knowledge of the situation who were unwilling to be named for fear of reprisal.

One commissioner who received a call from an intermediary on behalf of the governor’s office said he found the call upsetting and declined to make a statement.

The letter from prosecutors, which was read to The New York Times, says, “We have reason to believe a number of commissioners recently have been contacted about the commission’s work, and some commissioners have been asked to issue public statements characterizing events and facts regarding the commission’s operation.”

“To the extent anyone attempts to influence or tamper with a witness’s recollection of events relevant to our investigation, including the recollection of a commissioner or one of the commission’s employees, we request that you advise our office immediately, as we must consider whether such actions constitute obstruction of justice or tampering with witnesses that violate federal law.” ... 

The letter noted “the commissioners and the commission’s employees are important witnesses in this ongoing investigation, and information from those with personal knowledge of facts of the investigation is highly material to that investigation.”

The letter warned that tampering with the recollections of commission members or employees could be a crime, and directed them to preserve any records of “actual or attempted contact” along those lines.

Can't get any starker than that:

Preet to Sheriff Andy: Stop fucking around with the Moreland Commission witnesses and evidence or you're getting hit with witness tampering and obstruction charges.

This comes on top of Bharara lunching earlier in the week with Attorney General Scheiderman in a place where they were guaranteed to be seen:

At the height of Moreland madness, two of the most high profile players in this seemingly never-ending saga – US Attorney Preet Bharara and state Attorney General Eric Schneiderman – met for a very public lunch in lower Manhattan yesterday, multiple sources confirm.

The Democratic duo was spotted lunching at City Hall Restaurant – an eatery favored by members of the New York City political set due to its proximity to (you guessed it) City Hall. Schneiderman and Bharara have known each other in a professional capacity for the past several years, but aren’t personal friends, according to a source familiar with their relationship.

It’s worth noting that Bharara, who is investigating the demise of Gov. Andrew Cuomo’s now-defunct corruption-busting Moreland Commission, would probably not be seen in such a public place with Schneiderman if the attorney general was a target of that probe.

Given the role that Schneiderman played, however, through his agreement to deputize its 25 members to broaden their purview beyond the executive branch and loaning of top aides to staff the commission, it’s possible that he is providing information to the US attorney as the investigation progresses.

If it wasn't already clear before the events of this week, with Cuomo flailing away at a press conference on Monday, contradicting himself over his previous statements (and the official statement his administration gave to the NY Times in response to their Moreland piece) and now Bharara sending Cuomo a couple of not-so-subtle messages, it should be now:

The US Attorney is looking very, very closely at Governor Cuomo in these Moreland investigations and Sheriff Andy has no idea what to do about it.

Moreland Mess: The Parade Of The Browbeaten

Michael Powell on Twitter:

The Parade of the Browbeaten. Various NYS Democrats issue Press Releases Hailing Moreland Commission and Himself.
— Michael Powell (@powellnyt) July 28, 2014

And indeed, that's what we got today from former Moreland Commission members as well - a coordinated PR effort, starting with a long statement released by Onondaga County District Attorney William Fitzpatrick:

Onondaga County District Attorney William Fitzpatrick released a lengthy statement on Monday insisting the Moreland Commission To Investigate Public Corruption made decisions independent of Gov. Andrew Cuomo’s office, though he confirmed a top aide to the governor sought input on the panel.

In the same four-page statement released on his office’s letterhead, Fitzpatrick said the commission “was not an independent prosecutorial agency” that couldn’t make arrests or convene grand juries.

...

The statement from Fitzpatrick today comes as Cuomo is due to appear in Buffalo this morning to make an unrelated economic-development announcement.

Then Cuomo made his long-awaited statements about Moreland this morning that - lo and behold - referenced Fitzpatrick's :

Throughout the back-and-forth with Buffalo and limited Albany media, Cuomo stuck to his guns and didn’t waver from his stance that the commission was a success and that there wasn’t interference from his office; rather, conversations and dialogue were just that.

“The Moreland Commission was a phenomenal success,” Cuomo said. “It generated all sorts of interest in the behavior of the Legislature. It brought all sorts of cases that have actually come to fruition. And it was, I believe the stimulus to get the ethics reform passed that we got passed. And the ethics reform bill is great.”

...

The governor said the panel accomplished what it was set out to do: help devise new stronger ethics laws.

Cuomo said the commission took guidance from many people, held hearings and spoke to the Senate, Assembly and Executive Chamber.

“No one ever said they shouldn’t be talking to people or get advice or consultation from people. They should be independent,” he said. “And the co-chair today says, ‘I was 100 percent independent. I made the decisions. Did I talk to people? Or course I talked to people. It would be unintelligent not to talk to people. But I made all the decisions.’”

Earlier Monday morning, commission Co-Chair William Fitzpatrick, the Onondaga County district attorney, sent out a three-page statement defending the commission, his role in the commission and the governor’s handling of the commission.

Cuomo said the best example of independence was Fitzpatrick deciding to send a subpoena the second floor did not want the commission to send. The New York Times detailed to a subpoena sent to an media-buying firm that initially was withdrawn at the behest of the governor’s office but later went out anyway.

But the Parade of the Browbeaten backing Cuomo up wasn't done yet:

Broome County District Attorney Gerald Mollen disputed reports that he threatened to resign over frustration with the governor’s office involvement with the now-defunct Moreland Commission.

Mollen said he knew that Gov. Andrew Cuomo’s office would have input in the panel’s direction, but he backed up statements today by Onondaga County District Attorney William Fitzpatrick that the commission was ultimately independent.

 “I never had any quarrel or misunderstanding that the governor and his people would provide advice, support and input on what we were doing,” Mollen said in an interview today with Gannett’s Albany Bureau. “But I also always believed that we had absolute independence to go wherever the commission wanted and the governor could not stop us if we choose to go somewhere.”

Mollen was mentioned in the New York Times investigation Wednesday that he was among district attorneys that threatened to resign over the intervention of Cuomo’s office in seeking to direct who was issued subpoenas by the panel.

“I always had the opportunity to be heard with the commissioners and chairpersons,” Mollen said. “I always had the opportunity to express my viewpoint. Sometimes it was accepted, sometimes it was not. But I never came to a point where I said, ‘Look it, we’re going to do this or else I’m going to resign or we should resign.’”

The Parade of the Browbeaten continued later in Rockland County:

Last week, Rockland County District Attorney Thomas Zugibe declined comment on the role Gov. Andrew Cuomo’s office played in the Moreland Commission to Investigate Public Corruption’s now-defunct investigation, citing an ongoing probe by the U.S. Attorney’s office into the commission’s abrupt shutdown.

On Monday, Zugibe apparently changed his mind.

Hours after Gov. Andrew Cuomo publicly addressed claims in a lengthy New York Times investigation published last week, Zugibe issued a three-paragraph statement denying he ever threatened to resign from the Moreland Commission. The Times reported Zugibe, a Democrat who was one of the panel’s 25 members, had discussed leaving the Moreland Commission amid frustrations caused by Cuomo’s office’s interference with its work.

“At no time during my tenure with the Commission did I ever threaten to resign from the Moreland Commission,” Zugibe said in the statement. “This blue ribbon group under the guidance of the co-chairs did incredible work, recommending substantive policy changes and pursuing investigations that would strengthen ethical standards and provide comprehensive oversight. I am proud of the work we accomplished through this landmark effort to practice and promote the highest standards of ethical behavior in New York State government.”

Zugibe’s statement mirrors comments Monday from Broome County District Attorney Gerald Mollen, who also said he never threatened to quit the Moreland Commission. (The Times’ story doesn’t say the commissioners “threatened” to quit the Moreland Commission, but rather “discussed” it.)

The statement strikes a different tone than comments Zugibe gave to Gannett’s Albany Bureau earlier this year.

In May, Zugibe was critical of the package of laws Cuomo agreed to in exchange for disbanding the commission a month prior. Those laws included tougher bribery penalties and a more-independent office to investigate election-law violations, but didn’t include several recommendations of the Moreland Commission—including the closing of a loophole allowing individuals and companies to flout campaign-contribution limits by opening multiple limited liability companies.

“I cannot fathom when the governor sent over the recommended legislation, why would they negotiate out the LLC loophole or the limitations on the housekeeping accounts?” Zugibe said in May. “Did their constituents want that? Of course not. It was self-preservation.”

And then the parade finished up in Erie County:

Erie County District Attorney Frank Sedita in a statement on Monday said no one, to his knowledge, threatened to quit the Moreland Commission To Investigate Public Corruption over concerns of gubernatorial involvement.

Sedita, in his statement, said the commission wouldn’t stand for any interference from the governor’s office and resignation was discussed as possibility.
But after the governor’s office agreed to not interfere with the work of the panel, the resignation talk stopped.

“In the summer of 2013, rumors began to circulate that members of the Governor’s Office sought to veto the issuance of subpoenas for those with political ties to him,” Sedita said. “Although we recognized our statutory duty to regularly report to the Governor and to the Attorney General, we would not stand for any interference, and discussed a number of options, including resignation. The Governor’s Office, through our commission chairs, agreed not to interfere with our work. No one, to my knowledge, threatened to resign.”

Why was Cuomo MIA for five days after the NY Times published their Moreland story?

He was putting together the Parade of the Browbeaten, that's why.

You have to wonder just what he's got on these people that they're tying themselves into pretzels to back him up.

Whatever it is, it must be really good - or bad, depending upon your perspective.

Unless of course this was all coincidence and these men decided to make these statements today, on the very same day Cuomo was surfacing to defend himself, because some strange alignment in the universe we don't yet understand compelled them to do so:

I'm sure it's coincidence multiple Moreland members decided to put out similar statements today, 5 days after NYT published its report.
— Jon Campbell (@JonCampbellGAN) July 28, 2014

Yeah, that must be it.

In any case, who doesn't love a parade?