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Even Without Conviction, Impeachment Will Remove Cuomo from Office

And his creepy whataboutism is no defense.
August 9, 2021
Even Without Conviction, Impeachment Will Remove Cuomo from Office
(Photo by ANGELA WEISS/AFP via Getty Images)

Get ready for the “whataboutism” defense from New York Governor Andrew Cuomo. Cuomo faces searing allegations of sexual misconduct from 11 women, as set forth in a 168-page report from the office of New York Attorney General Letitia James, and in a criminal complaint filed by one of them—Brittany Commisso, until recently identified only as “Executive Assistant #1”—with the Albany County sheriff’s office. The James report was a culmination of 179 interviews, including 11 hours of testimony by Cuomo himself. According to James, “Governor Cuomo’s actions violated multiple state and federal laws,” although her review was strictly civil in nature.

In Cuomo’s case, the whataboutism gallingly points to Donald Trump, who evaded accountability after not only two impeachments but a host of sex-related misdeeds: An illegal $130,000 payoff to Stormy Daniels (one of the charges to which his lawyer Michael Cohen pleaded guilty). Dozens of accusations of sexual abuse, including the alleged rape of E. Jean Carroll (who is currently pursuing a civil claim against him). The infamous Access Hollywood tape, in which Trump brags about assaulting women.

But the Cuomo story feels different from Trump’s, not to mention from the cases of other prominent political figures accused of sexual harassment. High-ranking members of Cuomo’s party are not rushing to his defense, with even President Joe Biden stating publicly that the governor should resign. More may be at stake for Cuomo than just his ability to retain his extraordinary position of power—he is also potentially on the hook for criminal penalties and civil damages. In an 86-page response to the James report, Cuomo asserts that he “has fully cooperated with an investigative process that he initiated and referred to the Attorney General with the specific directive to appoint independent investigators with no predisposition or bias.” Presumably, then, Cuomo willingly walked into this mess without expecting the investigation to ping him as culpable.

James’s report finds that “the Executive Chamber’s culture—one filled with fear and intimidation, while at the same time normalizing the Governor’s frequent flirtations and gender-based comments—contributed to the conditions that allowed the sexual harassment to occur and persist.” More people than just the governor were apparently involved, giving rise to a cancerous culture that tolerated—and fostered—a degraded status for women.

In all likelihood, there will be political fallout for Cuomo long before there are any legal repercussions. The New York State Assembly began an impeachment investigation in March and recently signaled it is nearing closure. New York law provides that if Cuomo is impeached (i.e., charged) by a majority of the 150-member assembly, he will lose his seat as governor pending a trial in the state senate. Only if he is acquitted will he be reinstated. Thus, unlike under the federal Constitution, which triggers no accountability unless there is a conviction and decision to remove a president in the U.S. Senate, Cuomo could be temporarily displaced from the governorship by a 76-person vote in the assembly. This could happen soon.

If impeached, the jurors at Cuomo’s trial will consist not just of state senators, but also the seven judges of the New York Court of Appeals. A conviction requires a two-thirds supermajority. Whereas the U.S. Constitution provides for impeachment for “high crimes and misdemeanors,” the standard for removal of a governor under New York State’s Constitution is “misconduct or malversation in office.” The only New York governor impeached to date was Governor William Sulzer in 1913, after he broke from Tammany Hall (the political machine of the urban, downstate Democratic party at that time) by supporting direct primary elections over party conventions. Sulzer was convicted on two counts: suppressing evidence to a committee and filing false campaign receipts and expenditures. Scholars have posited that “a substantial amount of evidence indicates that William Sulzer was the victim of a partisan political act.”

Predictably, Cuomo’s lawyers have assailed James’s investigation as biased, taking preliminary shots at the credibility of the evidence. From their standpoint, “the Governor’s conduct . . . is unremarkable: Democratic and Republican politicians, male and female alike, use handshakes, hugs, and kisses to connect with others.” But that is to minimize what the James report describes—instances of “close and intimate hugs; (2) kisses on the cheeks, forehead, and at least one kiss on the lips; (3) touching and grabbing of Executive Assistant #1’s butt during hugs . . . (4) comments and jokes by the Governor about Executive Assistant #1’s personal life and relationships, . . . asking her to help find him a girlfriend,” and at one point, “reach[ing] under her blouse and grabb[ing] her breast.” Non-consensual groping qualifies as a crime under New York law, and at least five district attorneys’ offices—including in Albany—are already reportedly investigating whether criminal charges against Gov. Cuomo are appropriate.

On the civil side, James notes in her report that “discrimination in the workplace on the basis of sex or gender and retaliation for complaints about such discrimination violate Title VII of the Civil Rights Act of 1964 . . . and New York State Human Rights Law.” There are also civil money damages available for assault under New York law.

And there’s one other kind of whataboutism going into the Cuomo defense. In a taped response Cuomo released, he says: “I do it with everyone, black and white, young and old, straight and LGBTQ, powerful people, friends, strangers, people who I meet on the street.”

In other words, Sure, some women complain, but what about all these others who don’t complain?

This is a creepy non-defense: Just because Andrew Cuomo does “it” to women both in and out of his chain of command does not make it morally or legally acceptable. He must be held accountable, and soon.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.