News that the FBI and federal prosecutors are investigating New York Gov. Andrew Cuomo’s coronavirus task force in the deaths of thousands of nursing home patients and a suspected cover-up of the truth, invites the question: what crimes might have been committed?
Let’s begin with the obvious —obstruction of justice.
If it is true that Cuomo’s top aide Melissa DeRosa admitted to lawmakers that the state misrepresented the number of deaths in nursing homes to avoid having the data “used against us” in a Department of Justice probe, then DeRosa appears to have confessed to a potential obstruction charge. If there were others, including Cuomo, who knowingly participated in concealing the truth this could constitute a conspiracy to obstruct.
The Cuomo administration has suggested that the reporting of the incorrect death figures occurred before the initial DOJ investigation was launched sometime in mid-2020.
That is irrelevant. Under the federal statute, a person can be found guilty of obstructing a “potential or pending investigation.”
In other words, if a government official falsifies or hides evidence to avoid triggering an investigation (or acts out of fear that such a probe may occur) that official is still culpable under the law of obstruction.
What about the crime of defrauding the government? In plain language, this means cheating the government. But fraud is not limited to causing monetary loss or property damage. The U.S. Supreme Court has ruled that defrauding the government is also the act of interfering with “a lawful government function” such as investigations and the duty of a legislature to report truthful information to the public.
If Cuomo or anyone in his administration provided false information to the New York State legislature or to any agency of the federal government by deceitful and dishonest means, then the government has been defrauded. Once again, the involvement of others in such a scheme or artifice would constitute a conspiracy to defraud the government.
If Cuomo’s name was Trump, you can bet there would be a cacophony of calls for his criminal indictment for murder.
Does the evidence discovered thus far support such charges? It seems so.
New York Attorney General Letitia James offered the first evidence of allegedly falsified data when she revealed that Cuomo’s team underreported nursing home deaths by as much as 50 percent. According to the Associated Press, nearly 15,000 nursing home patients died from the coronavirus —not approximately 8,500 deaths.
Then came the stunning admission by DeRosa in a private phone call with Democrat lawmakers that the numbers were doctored to shield against a federal investigation.
But what about the deaths themselves? Could Cuomo be criminally charged for causing more than a thousand deaths when he issued an order on March 25, 2020, to send infected patients into nursing homes where elderly and infirm residents were most at risk of dying? If Cuomo’s name was Trump, you can bet there would be a cacophony of calls for his criminal indictment for murder.
In reality, murder is a stretch. Standard definitions involve the intent to kill. Being arrogant, uncaring, and making dumb decisions are not enough under the law and do not rise to the legal requirement of intent.
Nevertheless, there is a provision in New York law whereby second-degree murder is defined as reckless conduct “which creates a grave risk of death to another person and thereby causes the death of another person.” Involuntary manslaughter carries a similar reckless standard but with a lesser level of proof in its language.
Was Cuomo’s decision so wanton and reckless that it was foreseeable that vulnerable nursing home residents exposed to COVID patients would die by the thousands? In retrospect, perhaps. But it would be an exceedingly difficult case to make to a jury.
The offense of reckless endangerment is more relevant. In New York, a person can be charged under this statute for “recklessly engaging in conduct which creates a substantial risk of serious physical injury to another person.”
This is something that an aggressive prosecutor might consider, but it is doubtful that even this lower charge would ever be leveled against Cuomo in the liberal state of New York.
It was obvious from the outset that the New York governor’s order was causing an appalling spike in nursing home deaths. Under pressure, he reversed himself and rescinded his directive on May 10, 2020. But it was too late. Thousands of patients had been exposed and died. Cuomo’s malfeasance killed those who needed his help the most. They can now be counted as his victims.
Cuomo has never accepted responsibility for his poor decision-making nor apologized to the families that lost loved ones who should never have died. Instead, he has blamed nursing home staff, visitors, other agencies, conservatives in the media, and of course Donald Trump.
The governor’s persistent and most vacuous excuse is that his decision was based on “President Trump’s CDC guidance.” This is both absurd and demonstrably false.
Before Cuomo issued his fateful order, the Centers for Disease Control and Prevention issued a stern advisory that virus-infected patients must be isolated. “It is critical that long-term care facilities implement active measures to prevent introduction of COVID-19,” it read. The U.S. Centers for Medicare and Medicaid Services, which regulates nursing homes, issued an almost identical advisory.
Yet, Cuomo pressured nursing homes to accept patients who were infected and insisted that they “must comply.” Parents, grandparents, and others died as a direct consequence.
It is too early to know whether federal prosecutors will bring criminal charges against Cuomo and/or his confederates for obstruction of justice, fraud, and conspiracy. But his attempt to cover-up his wrongful actions shows no signs of abating. His propensity for bullying people who dare to disagree with him is in full swing.
New York State Assemblyman Ron Kim recently disclosed that Cuomo threatened to “destroy” him if he did not “cover up” for the governor. That, by itself, could be the subject of a separate obstruction of justice charge.
As the pandemic raged, Cuomo somehow found the time to pen a nauseatingly self-righteous book titled, “American Crisis: Leadership Lessons From the COVID-19 Pandemic.”
The sequel should be called, “American Failure: How My Arrogance Killed Thousands.”