For the first time since the coronavirus pandemic ravaged New York almost a year ago, Governor Andrew Cuomo is facing a profound challenge to his power.
Last week, the New York Post reported that Cuomo's top aide, Melissa DeRosa, purposefully withheld data on nursing home deaths from the state legislature, fearing a Department of Justice investigation.
This revelation came just after the State Attorney General, Letitia James, released a scathing report finding the Cuomo administration undercounted COVID-19 deaths among residents of nursing homes and long-term care facilities by as much as 50%.
On Wednesday, a Democratic state Assemblymember who has been a consistent critic of Cuomo’s handling of nursing homes, Ron Kim, said the governor had called him up personally and threatened to “destroy” his political career. “It was a ten minute, one-sided, screaming and yelling, where I felt threatened, that if I didn’t act in a certain way, to issue a statement, not tomorrow, tonight in his own words, that there would be retribution against me,” Kim recalled.
Cuomo, who seemed to make good on his threat with a very public tirade against Kim, is now overseeing an administration that is reportedly under federal investigation, with a probe initiated by the U.S. Attorney for the Eastern District and the FBI. The investigation, first reported by the Albany Times-Union, is examining a Cuomo-created coronavirus task force and its handling of nursing homes. The exact parameters and nature of the investigation aren’t yet clear, but it is not tied to the Department of Justice probe from last year.
All of this has led to a remarkable confrontation between the Democrat-dominated state legislature and Cuomo, a fellow Democrat who enjoyed soaring popularity in the earliest days of the pandemic. Last March, shortly after the coronavirus appeared in New York, the legislature granted Cuomo sweeping emergency powers to override existing state laws and regulations as he largely acted alone to combat the coronavirus.
Now the legislature, incensed by Cuomo’s recent conduct, is seeking to strip Cuomo of these powers. A few lawmakers are even talking openly about impeaching him for potentially lying to the legislature over how many nursing home residents died from COVID-19 in New York, among other missteps and abuses of power.
“This is the minimum first step, passing legislation to curtail the expanded emergency powers, but I think that we should be considering impeachment proceedings,” said State Senator Julia Salazar, a Brooklyn Democrat. “I don’t see any other accountability mechanism under law that has teeth apart from impeachment.” (Another state senator, fellow democratic socialist Jabari Brisport, confirmed to Gothamist he is “open” to impeachment as well.)
Kim agrees. “We need to start looking into the impeachment process,” he said. “There’s a whole movement behind impeachment. Others are asserting themselves.”
Still, impeachment is a long way off, and neither legislative leader has indicated an interest in bringing charges and holding a trial akin to what just took place in Washington. State Senator Jessica Ramos, a Queens Democrat, said impeachment should be “on the table” but that the Democratic conference had yet to discuss it in meetings.
Legislators are focusing first on cutting down Cuomo’s emergency powers, with the State Senate pushing a bill that would remove Cuomo’s ability to issue directives without legislation. The proposal would give lawmakers the power to veto a Cuomo attempt to suspend an existing law.
Their legislation would establish a 10-person commission, made up of members of the Assembly and Senate, to evaluate any future pandemic-related directives.
But this would only be a first step to holding Cuomo accountable for withholding crucial data from lawmakers, said State Senator Michael Gianaris, the deputy leader of the chamber.
“That’s a subject we intend to take up once we conclude on the emergency powers question. Whether it’s further hearings, collaboration with the attorney general’s office to figure out why information was withheld—now that there’s an actual federal investigation, are we letting that take it course? We haven’t got to that point in the conversation.”
Gianaris was less enthusiastic about impeachment. “We’re the Senate. The Assembly does something, we have a trial. It’s not for me to say.”
Carl Heastie, the Assembly Speaker, has said his body will consider the legislation stripping Cuomo’s emergency powers, but it’s unclear whether he supports the Senate’s plan in its entirety. The idea of another commission—Albany has been rife with them—deciding policy has irked some assembly members, who fear it will squander opportunities for substantive change.
“Creating a commission—God help us. Let’s take one bad idea and let’s double down and make it worse,” said Assemblyman Robert Carroll, a Brooklyn Democrat. “We need to go back to basics. The governor and the health commissioner have certain powers, and the legislature has certain powers. We have oversight, hearings—that’s how we should proceed.”
Carroll, Kim, and other assembly members are advocating for a “clean” repeal of Cuomo’s emergency powers, which would not include a new commission. If the legislature doesn’t take any action, there is a sunset provision that takes away Cuomo’s new emergency authority on April 30th—long after the budget is supposed to be created April 1st.
What comes next, if both houses agree on a repeal bill, is still being debated. Reinvent Albany, a good government group, called on the legislature to hold COVID-19 response oversight hearings outside of the regular budget hearings.
“It is time for the public to learn the whole truth about New York State’s response to the COVID-19 emergency,” the group said in a statement. “We urge Senate leader Andrea Stewart-Cousins and Speaker Carl Heastie to restore the legislature’s status as a co-equal branch of government and fully exercise their legislative oversight powers.”
Gianaris said one concern the legislature would have is undertaking any kind of investigation that could interfere with the work federal investigators are reportedly already doing. “Oftentimes investigators prefer that no one is mucking around while they’re doing their work,” he said.
Last August, legislators requested a full tally of the nursing home deaths from the Cuomo administration. They were told publicly, with no explanation, these numbers could not be made available, yet Cuomo staffers were able to furnish the Department of Justice with accurate data as early as September.
Cuomo has said that he didn’t respond to a request for nursing home data by the legislature in August because he had prioritized a similar request from the Justice Department. Cuomo claimed he had informed legislative staffers of the prioritization, a statement lawmakers disputed. (A Cuomo spokesman did not return a request for comment.)
There are still many unanswered questions. For one, why was there a months-long delay between late summer, when the Cuomo administration “satisfied” the DOJ’s request for nursing home data, and late January, when the Department of Health finally began to update the nursing home death toll?
Ramos, the Queens state senator, said she’d like to see Cuomo himself subpoenaed before the legislature, though “not all of my colleagues agree with me.”
“Do we know why the Department of Justice began an investigation [last year]? What was the flag that triggered the Department of Justice investigation?” asked Ramos. “Nobody has been able to answer that question for me.”