By Fred Lucas | The Daily Signal
New York state lawmakers say they want to impeach Gov. Andrew Cuomo, strip him of emergency powers, and investigate his administration as new information shows the state’s COVID-19 death toll in nursing homes is even higher than a revised estimate.
The New York Department of Health released data Wednesday on 647 more nursing home deaths to the Empire Center for Public Policy, a state think tank that has analyzed the issue through a state statute called the Freedom of Information Law.
These additional deaths come on top of the more than 15,000 reported to have died in New York nursing homes while the Cuomo administration put that total at 8,000 as of January, according to The New York Times.
The Empire Center still seeks details about nearly 1,000 other deaths that occurred in “adult care facilities” that are not clearly identified as nursing homes.
Some of the governor’s fellow elected Democrats seem to be turning on him because, they say, he misled them and state residents about COVID-19 deaths.
Despite a rising death toll during the pandemic, Cuomo spent much of 2020 doing a victory lap and becoming a regular on talk shows—including one on CNN hosted by his brother Chris Cuomo—after writing a book extolling the job he did and winning an Emmy for his televised press conferences.
But after 2021 arrived, a tale of death, deception, and lack of government transparency emerged.
Answering questions Monday on the scandal during a press conference, Andrew Cuomo showed no contrition and largely blamed front-line workers at nursing homes, visitors to nursing homes, and the Trump administration.
“The truth is, COVID attacks senior citizens,” Cuomo said. “The truth is, with all we know, people still die in nursing homes today.”
New York’s attorney general determined, as did The Associated Press, that the Cuomo administration was underreporting COVID-19 deaths in nursing home by about half the actual number of 15,000.
New York lawmakers did not receive Cuomo’s press conference well.
As what some call a cover-up unravels, here are key questions about the scandal.
Could Cuomo be impeached?
Nine Democratic state legislators signed a letter late Tuesday accusing Cuomo of “intentional obstruction of justice,” and of “criminal use of power” that could prompt “commencement of impeaching [sic] proceedings.” The letter’s reference to impeachment was in bold.
“It is now unambiguously clear that this governor has engaged in an intentional obstruction of justice, as outlined in Title 18, Chapter 73 of the United States Code,” the lawmakers say in the letter, adding:
In response to this criminal use of power, Assembly member Ron Kim and Sen. [Alessandra] Biaggi are introducing a bill to repeal the amendments to the Executive Law that were passed by the legislature one year ago … that expanded the governor’s authority to unilaterally suspend entire state statutes in response to an impending state emergency. This is a necessary first step in beginning to right the criminal wrongs of this governor and his administration.
Most consequently, if this legislature fails to take collective action in stripping the governor of his emergency powers and engage in additional measures to seek the realization of justice, including overriding an eventual executive veto and potentially the commencement of impeaching proceedings against Governor Cuomo, per the powers vested in the Assembly … then we too shall be complicit along with this administration in the obstruction of justice and conscious omission of nursing home death data.
State Sen. Jessica Ramos, a Democrat, told the news outlet City & State New York that impeachment is “being thrown around a bit.”
“It sounds to me like there’s potential obstruction of justice,” Senate Minority Leader Robert Ortt, a Republican, told City & State, adding that impeachment is an option.
“We don’t know if there is a crime,” Ortt said, “but we certainly have enough smoke here to warrant an investigation.”
The Empire Center led the way with lawsuits under the state freedom of information statute to obtain information before the state’s attorney general delved into the matter.
Still, at this juncture, an impeachment of Cuomo would distract from combating the coronavirus in the state and getting complete information to address the problem, said Bill Hammond, senior fellow for health policy at the Empire Center.
“Barring more revelations more dire than what we’ve seen, we have not yet seen the evidence that would support impeachment. The majorities in both houses of the legislature are solidly Democrat,” Hammond told The Daily Signal. “I wouldn’t advocate for impeachment. It would be a huge distraction.”
Hammond said Cuomo still could correct his course.
“One way for the governor to regain credibility is to provide maximum transparency,” Hammond said. “I would hate to see too much focus on trying to pillory the governor. That would be a distraction from the deeper problems.”
Lawmakers’ more immediate course of action likely is to strip Cuomo of his emergency powers, as 14 Democratic state senators called for in a joint statement expressing distrust for the administration.
“The New York State Constitution calls for the Legislature to govern as a co-equal branch of government,” they say in the public statement. “While the executive’s authority to issue directives is due to expire on April 30, we urge the Senate to advance and adopt a repeal as expeditiously as possible.”
Among those Democrats was Sen. Alessandra Biaggi, who tweeted about top Cuomo aide Melissa DeRosa’s comments, asserting: “You’re only sorry that you all got caught. Because of your decisions, thousands of people died who did not have to die. We’re not ‘offended,’ Melissa, we’re furious—with extremely good reason.”
You’re only sorry that you all got caught.
Because of your decisions, thousands of people died who did not have to die.
We’re not “offended”, Melissa, we’re furious – with extremely good reason.
— Alessandra Biaggi (@Biaggi4NY) February 12, 2021
What’s the potential legal issue?
DeRosa holds the title of secretary to the governor.
“Basically, we froze,” she said during a Feb. 10 teleconference with Democratic lawmakers, referring to providing data requested by the Legislature after the U.S. Justice Department inquired about similar data.
“Because then we were in a position where we weren’t sure if what we were going to give to the Department of Justice, or what we give to you guys, what we start saying, was going to be used against us while we weren’t sure if there was going to be an investigation,” DeRosa said, according to audio recording of the call first obtained by the New York Post. “That played a very large role into this.”
DeRosa added in the teleconference that former President Donald Trump was “tweeting that we killed everyone in nursing homes.”
The left-leaning New York magazine characterized the conversation this way: “In other words, the Cuomo administration apparently feared legal jeopardy—and federal persecution, if not prosecution—over the data so, at best, it slow-walked releasing it to avoid that fight.”
During his press conference Monday, Cuomo said that “we paused the state legislators’ request” because of the Justice Department inquiry. The governor then seemed to taunt the lawmakers, saying: “They can’t say they didn’t know.”
Cuomo is “not entitled to his own facts or alternate timeline of events,” Carolina Rodriguez, a spokeswoman for Democrats in the state Senate, said on Twitter.
The governor is not entitled to his own facts or alternate timeline of events. If the DOJ request took precedence and that was the cause for the delayed response, why didn't the Legislature receive answers shortly after his Administration responded to the DOJ request? https://t.co/2WlT6s5tba
— Carolina Rodriguez (@caridulce22) February 15, 2021
“If the DOJ request took precedence and that was the cause for the delayed response, why didn’t the Legislature receive answers shortly after his administration responded to the DOJ request?” Rodriguez asked.
Assemblyman Ron Kim, a Democrat whose uncle died of COVID-19, was insulted when DeRosa told Democratic lawmakers that the delay in providing information was to avoid the Justice Department.
“She talked about the potential that the information would be weaponized against them. DeRosa needs to be accountable for what she said,” Kim told the Post. “She implicated all of us in the cover-up.”
Cuomo told reporters Monday that the Legislature would be committing a crime if it investigated him and issued subpoenas to force the executive branch to provide more information. He accused lawmakers of trying to force him to endorse their budget.
“That is a crime. You can’t say—I’m a former assistant district attorney—you can’t use a subpoena or the threat of an investigation to leverage a person. That’s a crime,” Cuomo said. “It’s called abuse of process. It’s called extortion. The question before, is it raw politics? No. It’s not raw politics. It’s criminal.”
A former federal prosecutor from New York, Andrew McCarthy, wrote in National Review that Cuomo, a former state attorney general, should have known better than to characterize a legitimate process in that way.
“Extortion under color of official right happens when a government official exploits his authority—the damage it empowers him to do—in this manner,” McCarthy wrote, adding:
That, in essence, is abuse of process: the exploitation of investigative procedures, not for legitimate inquiries … In marked contrast, when a legislative panel or law enforcement agency, in furtherance of an inquiry in the public interest, issues subpoenas backed by the power of a court to order compliance on pain of contempt sanctions, that is not extortion. It is the conducting of an investigation—it is the process, not abuse of the process.
How responsible is Cuomo?
To what degree is the Cuomo administration responsible for the spread of COVID-19 in nursing homes?
The question isn’t easy to answer, but data from multiple sources contradictswhat the governor has said.
After reporting the initial low estimates, The Associated Press investigated and reported that following the directive, the state sent 9,056 recovering COVID-19 patients to nursing homes. This total was over 40% more than what the state previously reported.
Cuomo insisted Monday that COVID-19 didn’t spread in nursing homes between patients, but blamed staff and visitors.
“COVID did not get into the nursing homes by people coming in from hospitals,” Cuomo said, adding:
COVID got into the nurshing homes by staff walking into the nursing home when we didn’t even know we had COVID. Staff walking into a nursing home even though they were asymptomatic because the national experts all told us you could only spread COVID if you had symptoms. They were wrong. COVID may have been brought into a nursing home because visitors brought it in.
“Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk,” the report from the attorney general’s office said, adding: “A larger number of nursing home residents died from COVID-19 than [Department of Health] data reflected.”
ProPublica reported: “Some 58 nursing homes did not have a single case of a sickened staff member or resident prior to the arrival of a COVID patient from the hospital.”
At one point during his press conference, Cuomo asserted: “The patients were not sent to nursing homes.”
This statement was similar to a comment that CNN fact-checked as false in October. At that time, Cuomo said, “So it just never happened in New York where we needed to say to a nursing home, ‘We need you to take this person even though they’re COVID-positive.’”
However, Empire Center’s Hammond, no Cuomo defender, said it’s unquestionable that COVID-19 made its way into nursing homes before the state’s March 25 order.
“It’s almost a certainty that staff and visitors brought some of it in,” Hammond said. “I have never bought into the March 25 order being the sole or even the primary reason for the spread in nursing homes. I have also never bought that it had nothing to do with it.”
Importantly, he said, the Legislature is stepping up to address concerns about nursing homes.
“There is a lot of interest in the Legislature to respond to the nursing home matter,” Hammond said. “I’m not sure if the solutions are on point, but the increased energy on the topic is a good thing.”
What has Cuomo admitted?
Cuomo admitted Monday that he didn’t provide as much information as he should have, and said it was a mistake to delay information, for which he did “feel badly.”
However, the governor was not willing to apologize.
When a reporter asked whether he would apologize, Cuomo seemed to take umbrage.
“Apologize? Look, I have said repeatedly we made a mistake in creating the [information] void,” Cuomo said, adding that his administration was “too focused on doing the job and addressing the crisis of the moment.”
“I take responsibility for that,” Cuomo said. “Total death counts were always accurate, nothing was hidden from anyone. But we did create the void, and that created pain, and I feel very badly about that.”
Cuomo seemed to deflect blame to those who criticized him, saying the lack of information left a void “filled with skepticism, and cynicism, and conspiracy theories, which furthered the confusion.”
U.S. Rep. Elise Stefanik, R-N.Y., was not impressed with the rationale that Cuomo was too busy doing his job to provide information to the Legislature and the public, since the governor was on a publicity tour.
Let me get this straight…
Cuomo & his hacks had time to:
-Write a book (>$700K advance)
-Pose for glossy magazine shoots
-Fundraise w/ Hollywood donors
-Appear on his brother’s show incessantly
-Accept an Emmy
-Ruthlessly smear families who lost loved ones in nursing homes
— Elise Stefanik (@EliseStefanik) February 15, 2021
Who are other players?
An investigation by state lawmakers won’t be limited to Cuomo or DeRosa.
“The governor and his health commissioner were not only withholding information from citizens and the state Legislature, but they were misleading about the information they were not providing and accused those seeking information of being conspiracy theorists,” Hammond said.
Health Commissioner Howard Zucker had told lawmakers for months that the Cuomo administration was compiling an accurate count of nursing home deaths. However, Zucker reportedly already had the numbers, based on the investigation by the state attorney general.
Since the conference with lawmakers, DeRosa has issued a statement telling the public what she told them.
“I was explaining that when we received the DOJ inquiry, we needed to temporarily set aside the Legislature’s request to deal with the federal request first,” DeRosa said, adding:
We informed the [Legislature’s] houses of this at the time. We were comprehensive and transparent in our responses to the DOJ, and then had to immediately focus our resources on the second wave [of COVID-19] and vaccine rollout. As I said on a call with legislators, we could not fulfill their request as quickly as anyone would have liked.
Several Republicans from New York’s congressional delegation and at least one Democrat, U.S. Rep. Antonio Delgado, have called for a probe of Cuomo’s actions.
Politics should never come before people's lives. The Secretary to the Governor’s remarks are beyond troubling and warrant a full investigation. (1/2)
— Antonio Delgado (@DelgadoforNY19) February 14, 2021
Kim, the Democratic state assemblyman, noted that lawmakers sought information from the Cuomo administration for months.
“They could have given us the information back in May and June of last year,” he said. “They chose not to.”