The Andrew Cuomo scandal, explained

Andrew Prokop

Earlier this year, New York's governor Andrew Cuomo (D) looked to be in a commanding political position. With sky-high approval ratings and several legislative achievements to his name, his reelection effort looked like a formality. But this summer, he's faced unflattering headlines about a scandal surrounding his administration's interference with an ethics commission — particularly after a lengthy investigative report by Susanne Craig, William Rashbaum, and Thomas Kaplan of the New York Times. Now, a US Attorney is investigating the situation. Here's what we know so far.

Where'd the commission come from?


(Governor Cuomo's Office / Flickr)

After news of several corruption scandals involving members of New York's legislature, and the legislature's subsequent failure to pass an ethics reform bill, Cuomo announced in July 2013 that, along with the state's independently elected Attorney General Eric Schneiderman, he was establishing a 25-member commission to investigate corruption in government. The commission would be empowered to issue subpoenas, so long as its three co-chairs (two of which were appointed by Cuomo, and one by Schneiderman) all signed on. The governor's authority to establish such a commission was based on a law called the Moreland Act of 1907, so it became known as the Moreland Commission, though its official title was the Commission to Investigate Public Corruption.

"I can't 'interfere' with [the commission], because it is mine. It is controlled by me"

Both Cuomo and Schneiderman repeatedly said, at first, that the commission would have broad authority to investigate corruption. "Anything they want to look at, they can look at — me, the lieutenant governor, the attorney general, the comptroller, any senator, any assemblyman," Cuomo said in August 2013. And Schneiderman told the New York Times that "there's no substantial legal argument against them looking into every aspect of the state government," and that "their jurisdiction is as broad as we can grant using the full authority of my office and of the governor's office."

However, many observers now believe that Cuomo merely intended to use the commission as a tool to strong-arm recalcitrant legislators into supporting an ethics bill. Indeed, as Chris Smith of New York Magazine pointed out, the governor's office later admitted the commission was formed "for a specific purpose — to get legislation passed dealing with the legislature." Unofficially, the idea seems to have been that the commission's subpoena power would make corrupt legislators nervous and pressure them into supporting ethics reform.

What did the commission do that was controversial?


(Leonard J. DeFrancisci)

If the commission was mainly supposed to strong-arm the legislature, its chief investigator, former assistant US attorney Danya Perry, apparently didn't get that memo. Perry proceeded to try and investigate actual corruption, including from places other than the legislature. (The Times called her "a newcomer to politics.")

The commission never actually tried to investigate the governor's office or the executive branch more generally. But in two key cases, it explored subpoenaing certain allies of the governor — which resulted in Cuomo's top aide, Larry Schwartz, making his strong objections known:

  • Buying Time, a media firm that has placed political ads for Cuomo: The commission subpoenaed this firm to investigate possible campaign finance illegalities from the state Democratic Party. But according to the Times' reporting, Schwartz soon called one of the commission's co-chairs and ordered the subpoena be rescinded — and it was. However, the subpoena was sent out again a month later, and stuck this time.
  • The Real Estate Board of New York: This trade group of powerful real estate interests includes many key Cuomo donors. But Perry wanted to examine how it won an important new tax break, and prepared to subpoena the group's records of contacts with politicians. When Schwartz found out, he phoned one of the commission's co-chairs "in a fury," the Times reported, and ordered no subpoena be sent. None was. However, the commission did ask the board to turn over the documents voluntarily, and it complied.

Beyond this, the Times' report, based on interviews and internal commission documents and emails, makes it quite clear that the Cuomo administration repeatedly got involved in the commission's activities. For instance, Schwartz met with the three heads of the commission and told them they should investigate the legislature, not the governor's office. Cuomo himself called the commission's three co-chairs into a meeting, and then suggested that they subpoena law firms that pay large salaries to certain legislators. And certain politically unflattering topics were omitted from the commission's final report, after being included in earlier drafts.

How did the feds get involved?

US Attorney Preet Bharara. (Andrew Burton / Getty)

As part of a March 2014 deal with the legislature that included new ethics reform provisions, Cuomo agreed to shut down the commission, even though he had previously said it would work for 18 months. At the time, the commission had identified 15 lawmakers involved in potentially illegal activity,  according to James Odato of the Albany Times-Union.


Days after the shutdown, US Attorney Preet Bharara  expressed concern that pending investigations into corruption may have been scrapped as part of a political deal — and he seized all of the commission's files.  "The sequence of these events gives the appearance, although I am sure this is not the intent, that investigations potentially significant to the public interest have been bargained away as part of the negotiated arrangement between legislative and executive leaders," Bharara wrote .


"we must consider whether such actions constitute obstruction of justice or tampering with witnesses"

Weeks later, Cuomo downplayed the controversy to Crain's New York Business, with rhetoric that contradicted his earlier comments on the commission's supposedly broad authority. "It's not a legal question," he said. "It's my commission. My subpoena power, My Moreland Commission. I can appoint it, I can disband it." He continued, "I can't 'interfere' with it, because it is mine. It is controlled by me." However, a potential problem with this argument is that the commission was not purely established by the governor's office — all of its commissioners were named deputy attorneys general, as Liz Benjamin wrote here .


In July 2014, the major Times report  was released. And in an apparent attempt to manage PR from the situation, Cuomo aides contacted several members of the commission and "encouraged them to make public statements supporting the governor and affirming the panel's independence," reported Brendan Lyons of the Albany Times-Union. Several commissioners then did so.


When Bharara's office learned of this, they viewed the aides' actions as potential witness tampering and interference with an investigation — and  sent a letter threatening to investigate the Cuomo administration for it. "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," the letter read . Cuomo responded with a statement saying his aides were merely trying to correct "inaccuracies" in media reports.

What's next?

There's been much discussion in New York about the unusually public confrontation between Bharara and Cuomo, and speculation about where Bharara's investigation might be headed. C uomo has a reputation in New York for micromanagement, particularly regarding relations with the press, so many observers suspect his aides' actions might have been done at his direct behest. And o n August 3, the Wall Street Journal reported that top aide Larry Schwartz would meet with Bharara's prosecutors later this month.


But it's not clear how far the investigation will go. A ccording to Bill Hammond o f the New York Daily News, "seasoned legal pros are skeptical that Cuomo will be indicted." Hammond continues, "To back up a federal obstruction-of-justice charge, Bharara would have to show that Cuomo wrongfully and intentionally tried to bury evidence of a potential federal crime that was likely to be referred to federal officials" — rather than merely a state crime. In Politico Magazine, though, Jeff Smith laid out the opposite case, arguing Cuomo's troubles are "far more serious than some believe."


While the investigation  hasn't yet seemed to hurt Cuomo's general election hopes, it could make his upcoming primary at least somewhat more interesting. Cuomo faces a challenge from the left courtesy of Fordham Law professor Zephyr Teachout. On Thursday, Harvard law professor Lawrence Lessig, an activist against money and corruption in politics,  wrote in an email to supporters that Teachout is "the most important anti-corruption candidate in any race in America today." The email blast  helped raise Teachout $50,000 in less than 24 hours. The primary will take place on September 9.


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