Andrew Cuomo’s legal woes

Those who read Power Line faithfully know that Andrew Cuomo may be in legal jeopardy. The Justice Department reportedly is investigating him and some members of his staff for their conduct in response to a DOJ request for information about nursing home deaths in New York.

John Daukas was principal deputy to the DOJ’s assistant attorney general for civil rights at the time the Department requested information from Cuomo. Later, he became the acting assistant attorney general for civil rights.

In this Wall Street Journal op-ed, Daukas explains why Cuomo should be worried about the federal probe. Daukas pulls the facts together in a way that is helpful even to those who have been following this story.

By way of background, he writes:

On March 25, 2020, Gov. Andrew Cuomo issued an executive order requiring New York nursing homes to admit hospitalized patients who had tested positive for Covid-19. The order also prohibited nursing homes from requiring hospitalized residents deemed “medically stable” to be tested before admission or readmission. By the end of the summer New York had more than 32,000 Covid deaths, the highest in the nation and more than double any other state. If New York were its own country, it would have ranked among the top 10 for Covid deaths. The number of deaths translated to the country’s second-highest death rate—more than three times the national average.

What caught the Justice Department’s eye was Gov. Cuomo’s claim that New York’s nursing-home deaths were lower than many other states’ and that his March 25 order didn’t contribute to the extremely high number of New Yorkers who died from Covid. Given the virus’s disproportionate effect on the elderly, sick and frail, this seemed unlikely.

On Aug. 26, Justice’s Civil Rights Division, relying on its jurisdiction to investigate government-run facilities under the federal Civil Rights of Institutionalized Persons Act, asked the Cuomo administration for data on New York’s publicly run nursing homes, which account for less than 5% of nursing homes in the state.

Cuomo responded in September. The response showed that his claims about nursing homes were highly misleading. It turned out that New York had underreported deaths from the Wuhan coronavirus by one-third. But at least Team Cuomo was responsive to the DOJ’s initial information request.

That was not the case when the DOJ followed up:

In October, armed with New York’s admission that it had underreported government-run nursing home deaths by a third, Justice Department attorneys requested data in October on the more than 600 privately run nursing homes in the state.

This time the request was stonewalled. Months passed and New York refused to produce data, instead saying it was taking Justice’s request under consideration. . . .

Now we know what was really happening:

Late last month New York’s Democratic attorney general, Letitia James, issued a report showing that the Cuomo administration had undercounted nursing-home deaths by more than 50%, a staggering finding that belies the governor’s repeated public claims.

Melissa DeRosa, Mr. Cuomo’s top aide, reportedly apologized to fellow state Democrats in early February, not for underreporting deaths but for causing them political trouble. “We froze,” Ms. DeRosa said, according to media accounts. “Because then we were in a position where we weren’t sure if what we were going to give to the Department of Justice . . . was going to be used against us while we weren’t sure if there was going to be an investigation.”

In other words, the Cuomo administration appears to have engaged in a coverup designed to frustrate the federal government’s oversight efforts. In doing so, as we discussed here, it may have violated at least three federal statutes.

Daukas concludes on this ominous note:

Even if it cannot be proved that the Cuomo administration knowingly provided false information to Justice and CMS, New York’s willful failure to provide information may itself constitute a criminal offense—particularly if the intent was to thwart a federal investigation—which, after all, is exactly what Ms. DeRosa reportedly said the administration did.

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