It looks like Andrew Cuomo will not be criminally charged by the Manhattan District Attorney for providing misleading information to the public about the number of deaths from the pandemic in New York nursing homes. Cuomo’s lawyer says he’s been so advised by the DA’s office.
Andy McCarthy argues that the DA’s decision not to prosecute is probably the correct one. There’s no doubt that Cuomo deceived the public. State attorney general Letitia James issued a report detailing the governor’s undercounting of nursing-home deaths. In essence, his office did not count as nursing-home deaths patients who expired in the hospital, even if they were taken to the hospital only after being infected in a nursing home.
However, as McCarthy says, “there is a significant difference between political deceptions and lies that are actionable under the criminal law.” Lying to the public is not a crime. And in this case, McCarthy believes that Cuomo’s New York deceptions were phrased in such a way as to make it difficult to characterize any single statement as a prosecutable lie.
Material omissions are prosecutable. However, they are much more difficult to prove than outright false statements because the prosecutor has to establish that the speaker knew he had a duty to reveal the withheld information and that the concealment was intentional. McCarthy seems to doubt that, in the case of Cuomo’s omissions in New York, the prosecutor could overcome the evidentiary hurdles and the “beyond a reasonable doubt” standard.
Although Cuomo won’t face charges in New York, it’s still possible, at least in theory, that the feds might charge him. As I discussed here, he’s reportedly under federal investigation for violating up to three federal criminal statutes in connection with a Justice Department request for information about nursing home deaths from the Wuhan coronavirus in New York.
The investigation appears to center around Team Cuomo’s response to a letter from Eric Dreiband, then Assistant Attorney General for Civil Rights, requesting very specific information about nursing home deaths. Cuomo aide Melissa DeRosa has admitted that Team Cuomo withheld the true toll of nursing home deaths from the virus due to Eric Dreiband’s letter.
The statutes in question speak in terms of influencing, obstructing, impeding or attempting to influence, obstruct, or impede, a federal proceeding (such as an investigation), or covering up a material fact by any trick, scheme, or device. It seems clear that Cuomo’s office did these things.
There is still the requirement of proving intent. But Eric’s letter clearly and specifically asked Cuomo to include in his report of the death toll “those who died in a Public Nursing Home or after being transferred to a hospital or other medical facility, hospice, home care, or any other location.” (Emphasis added) I don’t see how omitting the deaths of such transferees in response to this request could have been unintentional.
The problem is that Democrats control the Justice Department. I doubt there’s any serious appetite in the Biden DOJ for prosecuting Andrew Cuomo.