Subpoena power a major tool in pending Cuomo probe, experts say

ALBANY — When he was New York’s attorney general, Gov. Andrew M. Cuomo was granted power to investigate two governors, with each probe resulting in damage to the political reputations of the officeholder.

Soon, he will be at the center of an inquiry focusing on sex harassment allegations against himself, led by a special investigator with subpoena powers to obtain documents and emails, find reluctant witnesses and, if needed, force the governor to testify under oath.

"It is a civil inquiry in which the governor could be compelled to testify," said Eric Lane, a Hofstra University law professor and former counsel to the State Senate Democrats. "I don’t know that there is any protection he could claim (to avoid it). But I can’t imagine he’s not going to testify. He’s already put out a statement."

When two former aides went public with claims of unwanted advances by the governor, Cuomo twice floated a process whereby a probe would be conducted without subpoena power.

Under heavy pressure from top Democrats across New York, Cuomo relented. On Monday, he officially referred the issue to Attorney General Letitia James, who will have the independence and authority she sought to oversee the probe. She will select a special investigator who will report to her.

The statute under which the case was referred makes an important difference, said Dennis Vacco, New York’s attorney general from 1995-98. By using executive law 63(8) instead of alternative provisions, it will be conducted under civil — not criminal — law.

"It means it’s an investigation in the public interest but not with a goal of a criminal prosecution," Vacco said, "because it will be conducted under CPLR," referring to civil practice law and rule.

So far, there’s no indication of any criminal wrongdoing in the allegations against the governor, the former attorney general said.

It’s not likely going to be an inquiry concluded swiftly.

"Careful and deliberate is more important than speed," Vacco said.

"These things take longer than you think because you have to be thorough and credible and have to withstand scrutiny from all sides," said Karl Sleight, a private attorney who once led a state ethics commission.

The first step, Sleight said, is obtaining records.

"Emails, texts, schedules and that takes a while," Sleight said. "You don’t start asking questions until you’ve gotten everything you think you’re entitled to."

Then, investigators must establish precisely what happened.

"The best you can get at the heart of what occurred. Once you know that, then you can ask" how the individuals involved interpreted the events and what they did in reaction, Sleight said.

"I wouldn’t expect this to happen in any certain time frame," he said. "There’s not a clear precedent of how these things are treated."

There are two recent instances of a New York attorney general investigating a governor. Both involve Cuomo.

In 2007, Cuomo concluded that then-Gov. Eliot Spitzer’s top aides as well as the acting head of State Police used state resources to monitor the travels of and fuel news stories about the leader of the State Senate.

The report severely damaged Spitzer politically; he had campaigned on a theme of cleaning up Albany. The report and other political missteps left Spitzer no clout to get legislation passed. And then in 2008, when he was ensnared in a prostitution scandal, he had few remaining political allies and resigned.

In 2010, then-Gov. David A. Paterson gave power to Cuomo investigate assertions Paterson injected himself into the legal process surrounding a domestic violence claim involving a top aide. Later, a second line of inquiry opened involving Paterson receiving free New York Yankees tickets.

Paterson, facing bad poll numbers anyway, soon announced he wouldn’t run for reelection. Cuomo had started the probe but, being seen as the leading Democrat to replace Paterson, he turned it over to a former chief judge of the state.

Eventually, the investigation concluded Paterson exercised bad judgment but committed no crime.