Cuomo's micromanaging with Moreland Commission unlikely to lead to prosecution, experts say

ALBANY -- The press reports of Gov. Andrew M. Cuomo's involvement in a powerful corruption commission flashed as if from the pages of a political thriller: killing subpoenas to big-money supporters, pressuring the commission to focus on lawmakers and not the governor, fear by commissioners that their emails were being surreptitiously read by the governor's top staff.

Good-government advocates and Cuomo's political opponents were quick to criticize the governor, with some saying the pattern of behavior by Cuomo and his aides appears to be a case of obstruction of justice.

Yet legal and political experts say that while the claims revealed in recent months and captured in an article in The New York Times last week are perhaps tawdry and evidence of Cuomo's intense micromanaging, it might not rise to the level of obstruction.

"It would be extremely difficult to bring such charges," said Laurie L. Levenson, a professor at Loyola Law School in Los Angeles, the city where she had been a senior trial lawyer and assistant division chief in the U.S. attorney's office. "This was an extremely dysfunctional commission, but that does not necessarily mean that there was a violation of the obstruction laws."

Interference required

Federal obstruction of justice statutes would require interference with a federal matter or agent or in the investigation of a federal crime. One statute pertains to "corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States."

The other measure states "a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal agency."

The facts and allegations made public so far do not "demonstrate illegal behavior yet, certainly not for the executive," agreed Gerald Benjamin, a professor of political science at the State University of New York at New Paltz.

However, Levenson and Benjamin included a caveat to their analysis: They don't know exactly what else U.S. Attorney Preet Bharara has in the boxes of documents he's taken from the Moreland Commission or in the testimony and other records he has obtained.

"Overall, I think it would be very difficult to apply the federal obstruction laws," Levenson said, "but there are lots of other federal crimes that could be investigated, including, perhaps, schemes to defraud or false statement to federal officials (if any such statements were made)."

The Times article reported instances in which Cuomo and his top aide, Lawrence Schwartz, strategized with the Moreland Commission, which Cuomo created and promised would be independent. The report cited internal emails that indicated the Cuomo administration dissuaded the commission from issuing subpoenas and investigating big donors and supporters of Cuomo.

They included the Real Estate Board of New York, whose members benefited from legislation supported by Cuomo, and the lobbying group called the Committee to Save New York, which had refused to identify its donors as it funded TV ad blitzes touting Cuomo.

Cuomo said he and Schwartz weren't improperly interfering with the commission, which by law reports to him, but were providing the proper and necessary advice. They insist no entities related to Cuomo were given a pass and the commission's co-chairmen made all decisions on subpoenas.

Dysfunction claims

In his 13-page response to the Times, Cuomo said the dysfunction of the commissioners required his intervention. "The Commission had serious staff problems and factions," the Cuomo administration wrote. "The Commission was factionalized and leaking to the press continuously. The Commission needed help. The credibility of the Commission was being destroyed in the press weekly."

Cuomo wouldn't comment this week.

In April, when Cuomo shut down the Moreland Commission after striking a political deal with the State Legislature for some ethics measures, Bharara was testy: "If you begin investigations and you begin them with great fanfare you don't, I think, unceremoniously take them off the table without causing questions to be asked."

Hours after the Times story broke last week, Bharara made it clear he wasn't through investigating all political corruption in Albany. "We have the documents and we have the resources and we have the wherewithal and we have, I think, the kind of fearlessness and independence that is required to do difficult public corruption cases," Bharara said on the PBS television program "Charlie Rose."

Much is unknown

Jennifer G. Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School, said she can't see a crime based on press reports so far but noted so much is still unknown publicly. "I know there is more than what I read, and I just don't want to speculate on that," she said.

Albany Law School Professor Vincent Bonventre said he believes the commission was legally an independent entity when it was created. "If the evidence shows the governor and members of his office are interfering with the operation of this duly established government agency, preventing them from doing their job or threatening them so they do their job, that starts to really look like criminal conduct," he said.

A lack of independence is a common root problem with corruption commissions established by politicians nationwide and in other countries, and it can lead to legal problems, said Yale Law School Professor Susan Rose-Ackerman, who has written widely about government corruption.

"Setting up a body he, on the one hand, said is independent but on the other hand thinks should be clearing things with his staff is just not a viable organizational form," she said.