In furor over Moreland report, a theory of a potential legal problem surfaces

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ALBANY -- Whether Gov. Andrew M. Cuomo improperly interfered with an anti-corruption commission may hinge on a legal maneuver early in the life of the Moreland Commission, according to a former Democratic assemblyman who is now a good-government academic.

A year ago, Cuomo created the anti-corruption panel under the Moreland Act, which restricts investigations to the executive branch. But the corruption scandals in recent years mostly involved legislators. So Cuomo had members of the commission -- most of them local prosecutors -- deputized by Attorney General Eric Schneiderman as assistant attorneys general. That provided them subpoena power beyond the executive branch and former assemblyman said that amounted to a referral to the attorney general’s office.

“I think there is a good argument that the governor’s office cannot interfere with an attorney general’s investigation if the facts bear that out,” said former Assemb. Richard Brodsky (D-Westchester), now a fellow at the Demos think tank, a lawyer, and instructor at the Wagner School at New York University.

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“This was not a Moreland Commission in the sense of the statute,” Brodsky said Wednesday after The New York Times reported Cuomo and his top aide had been deeply involved in the commission Cuomo promised would be independent.

“It was hybrid and it was a hybrid because the governor intended to make the legislature the focus of this,” Brodsky said.

The attorney general’s office declined to comment. The article didn’t say Schneiderman contacted commission members.

Cuomo also declined to comment.

Dick Dadey of the Citizens Union good-government group sees merit in the theory and said Cuomo “has a lot of explaining to do.”

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“That the Moreland Commission members were appointed as deputy state attorney generals who were blocked from pursuing corruption in spite of their broad mandate raises legal questions about the use of their authority and whether they were free to exercise it as they saw fit,” Dadey said.

Republican candidate for governor Rob Astorino seized on that theory in a late afternoon teleconference with reporters. He said once the commissioners were deputized as assistant attorneys general they no longer were a traditional Moreland Commission restricted to probing the executive branch.

“This was a separate, independent commission that was supposed to look at corruption wherever it led and it seems when it led to the governor’s office it was led away, it was quashed,” Astorino said. “That’s obstruction of justice.”

The New York Times in a lengthy story Wednesday said Cuomo and his aides dissuaded the Moreland Commission from investigating the governor’s campaign contributors and campaign spending. Among the big Cuomo funders that the report said may have gotten a pass was the Real Estate Board of New York and the Committee to Save New York, a lobbying group that paid for nearly $20 million in TV ads supporting Cuomo while legally cloaking the identify of the group’s donors.

Although Cuomo had recently confirmed regular contact with the panel and many elements woven into the story, the Times narrative included new emails that appeared to contradict public comments by the panel’s co-chairmen that had been supportive of the governor’s role.

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Cuomo’s response also stated the Moreland Commission that reported to him couldn’t investigate the governor because it would be a conflict of interest.

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