by Michael C. Dorf
The report commissioned by the NYS Attorney General into allegations of sexual harassment by Governor Andrew Cuomo is devastating. Thus far, however, Cuomo has resisted widespread calls for his resignation, even though they are coming from former political allies. What is Cuomo thinking? Here I'll explore some hypotheses, but I should say up front that none of them makes a whole lot of sense to me.
(1) He's innocent. Cuomo has repeatedly claimed that the women he allegedly harassed mistook his all-purpose demonstrative affection for sexual attention. The claim is not credible. Consider the first item in the report's executive summary:
Since approximately late 2019, the Governor engaged in a pattern of inappropriate conduct with an executive assistant (“Executive Assistant #1”), who is a woman. That pattern of conduct included: (1) close and intimate hugs; (2) kisses on the cheeks, forehead, and at least one kiss on the lips; (3) touching and grabbing of Executive Assistant #1’s butt during hugs and, on one occasion, while taking selfies with him; and (4) comments and jokes by the Governor about Executive Assistant #1’s personal life and relationships, including calling her and another assistant “mingle mamas,” inquiring multiple times about whether she had cheated or would cheat on her husband, and asking her to help find him a girlfriend. These offensive interactions, among others, culminated in an incident at the Executive Mansion in November 2020 when the Governor, during another close hug with Executive Assistant #1, reached under her blouse and grabbed her breast. For over three months, Executive Assistant #1 kept this groping incident to herself and planned to take it “to the grave,” but found herself becoming emotional (in a way that was visible to her colleagues in the Executive Chamber) while watching the Governor state, at a press conference on March 3, 2021, that he had never “touched anyone inappropriately.” She then confided in certain of her colleagues, who in turn reported her allegations to senior staff in the Executive Chamber.
A kiss on the cheek or forehead could be misinterpreted, but the foregoing and similar allegations from other women cannot possibly be explained as a misunderstanding. Unless Cuomo's accusers are lying, he isn't innocent. It is of course possible that anyone could lie. It's also possible that there could be a massive conspiracy against Cuomo. And insofar as some of the allegations described in the report are now leading to criminal investigations or might result in civil lawsuits, Cuomo will be entitled to put the complainants to their proof under cross-examination in a courtroom. But the number of credible corroborated complaints makes the theoretical possibility of a massive conspiracy extremely unlikely.
Accordingly, we can reject the idea that Cuomo is the victim of a series of unfortunate misunderstandings or a conspiracy of lies as not remotely plausible. We must therefore search for some other account of what Cuomo is up to.
(2) He's hoping that the public will stick with him. Much of the punditry about Cuomo has noted that while he now has no support among prominent elected Democrats in New York State (or anywhere else), he remains reasonably popular with voters, who give him generally high marks on policy and governance and are thus willing to overlook what they might (improperly) dismiss as merely "personal" failings. Cuomo might also be counting on low-information voters hearing that there are allegations, hearing his "I'm just a friendly guy" defense, and not knowing enough to realize that his defense lacks credibility.
I think this view was probably accurate a week ago, but I very much doubt that it will survive the latest revelations. Cuomo and erstwhile allies like President Biden had asked the public's forbearance when the story first broke so that an investigation could be conducted. Now that it's complete, expect the floodgates to open and Cuomo's support to erode. Indeed, apparently it already has eroded.
(3) But wait. What about Trump? Perhaps Cuomo is thinking that the old rules don't apply. After all, Donald Trump boasted about his sexual misconduct, was credibly accused of sexual assault, paid hush money to a porn star, and, oh yes, did all the awful non-sex-related things, like inciting a violent insurrection; yet he remains the most powerful person in the Republican Party. So, the thinking might go, why can't Cuomo, the three-term governor and scion of a political dynasty, likewise escape a comeuppance on his charges?
The short answer is that the peculiar arithmetic of gerrymandering and US Senate representation meant that so long as Trump was popular with about 34-38% of the country, he could terrorize elected Republicans with the prospect of primary elections. Cuomo would need a larger loyal following. He has a smaller, less loyal one. Trump's cult of personality interacts with defects in the U.S. Constitution and the cowardice of Republican elected officials to create an existential threat to American democracy that permits Trump to remain a political force. That perfect storm doesn't exist for Cuomo.
(4) But wait. What about Ralph Northam? Okay, so Cuomo isn't Trump, but isn't he at least Ralph Northam, the governor of Virginia who survived his blackface scandal by going hat in hand to African American leaders in the state and also simply hanging on until the scandal blew over? The short answer is no. Northam appeared in blackface 35 years before the scandal about it broke. He expressed genuine remorse. By contrast, Cuomo committed his misdeeds as recently as last year. And he has not expressed remorse.
(5) But wait. What about Justin Fairfax? Right around the time that Northam's scandal broke in 2019, the Lieutenant Governor of Virginia was accused of two sexual assaults, one in 2000 (when he and the accuser were college students) and the other in 2004. Fairfax did not resign and was even a candidate for governor. Could that be a useful precedent for Cuomo?
Nope. The very serious allegations against Fairfax were not the subject of an investigation of the sort that the ones against Cuomo were, his scandal was weirdly linked to that of Northam's, he was only ever Lieutenant Governor, and he got virtually no support from voters in the Democratic primary for governor anyway.
(6) But wait. What about Al Franken? Many Democrats think that Franken was rushed into giving up his Senate seat in light of what was really only a joke in poor taste. Cuomo might be thinking that New York Democrats will reach the same conclusion about him over time, so he should stall for cooler heads to prevail.
To which the answer is: no, read the report. This goes way way beyond Al Franken's conduct.
(7) Impeachment is a high bar. Impeachment of the Governor of New York State is mostly but not entirely similar to federal impeachment, requiring a simple majority of the lower house (the Assembly) and two-thirds of the "impeachment court" (the state Senate plus the seven members of the Court of Appeals, the highest court of New York State). Art. VI, Sec. 24 of the NYS Constitution contains some further details and idiosyncrasies.
The short of it is that if Cuomo's own party has turned against him in the Assembly--which it apparently has--then he will be impeached. Excluding legally recused members, the impeachment court would consist of 42 state Senate Democrats, 20 state Senate Republicans, and the 7 appeal court judges, all appointed by Cuomo but all nonetheless independent. Could Cuomo hold onto 24 of the 69 and thus defeat a conviction?
Based on the evidence that will be presented (and is already in the report), that seems unlikely, but perhaps Cuomo is making a political calculation that some number of Democrats come from districts in which he retains support or are loyal. Even so, it's hard to see how that would be more than a handful of votes for acquittal, once the tide turns.
A more intriguing possibility is that Cuomo might be hoping for support from some number of Republican Senators. In theory, that would make sense. The Republicans probably have a better chance of capturing the governorship in New York running against a weakened Cuomo than against Kathy Hochul (currently Lieutenant Governor) or really any other Democrat likely to get the nomination. So a Machiavellian Republican might vote to acquit Cuomo and thus preserve him to defeat at the polls.
Yet that scenario is extremely unlikely for two reasons: (a) the NYS Republican base hates Cuomo and would not permit their state Senators even to think about keeping him in office; and (b) if Cuomo were to avoid impeachment, he would lose a primary challenge, and Senate Republicans probably know that, so there's no angle in keeping him around as a foil.
(8) Maybe an asteroid will hit the Earth. A year ago, Cuomo was riding high as the anti-Trump science-based warrior against COVID. In addition to the sexual harassment issue, Cuomo's reputation has been tarnished for his handling of nursing home patients and recording of deaths, but one could imagine a new crisis (or a renewed phase of the ongoing COVID crisis) giving Cuomo an opportunity to display competent compassionate leadership that turns the public back to his side, which he might then use to win over state lawmakers. Playing for time enables Cuomo to increase the odds of such a development or some other twist.
Thinking his reputation already ruined, Cuomo perhaps believes he has nothing left to lose and so may as well play out what is now a losing hand in the hope of miraculously drawing a pair of aces. If so, it's much more likely that the legislature will call his bluff.