UPDATE (08/10/2021 1:00 p.m. E.T.): Gov. Andrew Cuomo announced on Tuesday that in light of the accusations against him, he would be resigning from office, effective in two weeks.
It was an eventful 24 hours for New York Gov. Andrew Cuomo. The New York Assembly Judiciary Committee met Monday to review the 165-page report detailing allegations of sexual harassment against Cuomo.
Late Sunday, Cuomo’s top aide of many years, Melissa DeRosa, resigned. Early Monday morning, CBS and The Times Union of Albany aired an interview with Brittany Commisso, previously identified only as Executive Assistant #1 in the report, who spoke publicly for the first time about her experiences as the target of the governor’s alleged sexual misconduct.
In an exclusive interview with @CBSThisMorning & @timesunion, Brittany Commisso, an Executive Assistant at NY Gov. Cuomo’s office says he groped and sexually harassed her — allegations he denies.
— CBS This Morning (@CBSThisMorning) August 9, 2021
“The governor needs to be held accountable… What he did to me was a crime.” pic.twitter.com/uPuZiuEKq9
Cuomo himself remains defiant in disputing the accusations. The governor has denied, deflected and minimized the findings of independent investigators hired by New York Attorney General Letitia James that documents findings of sexual harassment by Cuomo against 11 current and former state employees in violation of law “by engaging in unwanted groping, kissing, and hugging, and making inappropriate comments.”
They also concluded that Cuomo and his senior staff, including the now-resigned DeRosa, retaliated against a former employee by leaking documents to the news media with intent to discredit her. Ultimately, the report exposes Cuomo and the state to civil liability, and himself to possible criminal charges.
He is hoping one of these defenses will break through to reframe the conversation. It isn’t working.
So far, Cuomo has taken what is sometimes referred to by lawyers as “the kitchen sink” approach — throw in every defense you can think of and see if one of them works.
On Friday, Cuomo’s lawyers gave a press briefing to denounce the report. Their comments amplified their written “position statement” issued days earlier. They have also sent a public letter to the independent investigators and trotted out Cuomo himself to provide remarks in a video-recorded statement.
In this barrage of messaging, Cuomo and his lawyers have offered the spectrum of defenses, including arguments that the process was unfair; that the investigators were biased against him; that the complainants are not credible; and that he kisses people in public all the time.
Perhaps knowing that he cannot credibly refute 11 women’s claims, he is hoping one of these defenses will break through to reframe the conversation. It isn’t working.
Let’s look at some of his arguments:
Attack the process: Cuomo’s lawyers complained that he did not get to see the report or witness transcripts in advance of James’s public announcement about the findings. There is no law that entitles the lawyers to those things, and, in fact, Cuomo was provided an opportunity to tell his side of the story in an 11-hour interview, in which investigators found “his denials to lack credibility.”
Certainly, due process matters before any legal consequences can occur. If Cuomo goes on to face impeachment, a civil lawsuit or criminal charges, he will have an opportunity to present his side of the case, cross-examine witnesses and make legal arguments. For now, he asked for an independent investigation, and he got one.
These arguments are no more persuasive than former President Donald Trump’s allegation that special counsel Robert Mueller was biased because of a dispute over golf club fees.
Attack the investigators: Cuomo argues that the investigators are biased against him, attacking the objectivity of the lawyers who conducted the probe. In their letter, Cuomo’s lawyers argue that Joon Kim, a former federal prosecutor in the Southern District of New York, cannot be fair because he participated in investigations of Cuomo’s administration in the past.
They go on to argue that Kim is biased because of statements made by Preet Bharara, Kim’s former boss at the U.S. Attorney’s Office. Bharara’s name is mentioned an astonishing 33 times in the 11-page letter, referring to some matters unrelated to Kim. They argue that the other investigator, Anne Clark, cannot be fair because in her practice as an employment lawyer, she generally represents plaintiffs. These arguments are no more persuasive than former President Donald Trump’s allegation that special counsel Robert Mueller was biased because of a dispute over golf club fees. Lawyers can’t make a case without facts and law to support their claims, regardless of their personal views of the subject they are investigating. Accuse the accusers: In his video statement, Cuomo blamed the findings against him on people who are “using this moment for politics.” Cuomo testified that he thought the 11 women were motivated by “politics, animosity or some other reason.” Attacking the credibility of one’s accusers is a common tactic; but an accuser’s motives for telling their stories don’t matter if the stories are true. Everybody does it: In his position statement and public remarks, Cuomo pointed out that he regularly hugs and kisses people, an expression of warmth he learned from his parents. And, in fact, other people do it, too, he said. The document featured photos of Cuomo and other public officials hugging and kissing people at public events. But there is a difference between hugging or kissing a political ally in public and hugging and kissing a subordinate at work. And it is not hugs and kisses that have landed him in trouble. The allegations include touching women’s breast, buttocks, spine, bellybutton, hip and chest. His focus on hugs and kisses is an effort to deflect from the accusations about far more egregious physical contact. There is a difference between hugging or kissing a political ally in public and hugging and kissing a subordinate at work. He was simply misunderstood: Cuomo singled out the allegations of Charlotte Bennett, a former aide. Investigators found that Cuomo made sexually suggestive comments to Bennett, such as asking whether she slept with older men, telling her he was “lonely” and “wanted a girlfriend in Albany” and asking her whether she had any piercings other than her ears. According to Cuomo, he was just trying to help her as a sexual assault survivor, but she “read into comments” that he made and “drew inferences” he did not mean. He said he was sorry that his efforts to help “complicated the situation,” the classic nonapology apology. Playing the daughter card: In his video statement, Cuomo reminded us that he has daughters, a defense men often use for all manner of sexual misdeed, implying that fathers could not abuse women because they would not want their own daughters treated that way. The remark seems to suggest that women exist only as they relate to men — as daughter, mother, wife or paramour — instead of as fellow human beings worthy of respect. (Somewhere, Brett Kavanaugh is coaching a girls basketball game.) Cuomo’s diversion tactics buy him some time in the court of public opinion. But if he faces an impeachment or legal proceeding, he will need to confront the facts. Perhaps he is avoiding that challenge because when 11 people are telling similar stories, they tend to corroborate one another.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
