Governor’s flip-flop doesn’t fly

Gov. Andrew Cuomo broke a five-day silence Monday by responding to last week’s New York Times investigative story on how his office tried to steer his Commission to Investigate Public Corruption away from him and his allies and donors.

The fact that he responded was welcome, but what he said was puzzling. With five days to craft a defense, this was the best he could do?

He said his office didn’t interfere with the panel after all but only offered suggestions, which commissioners were free to take or leave. He said the “Moreland commission” showed its independence when it balked at some of his suggestions.

“That’s not a sign of interference,” the governor said. “That is demonstrable proof of independence.”

What that is is a complete flip-flop from him on whether he let this commission be independent of his office. Last summer when he started it, he specified that they could investigate the doings of any state office, even his. But then, when asked to comment for the Times’ story, his office argued that the commission belonged to him.

“A commission appointed by and staffed by the executive cannot investigate the executive,” the statement said. “It is a pure conflict of interest and would not pass the laugh test.”

Gov. Cuomo said that bluntly to the Crain’s New York Business editorial board in April, shortly after he dissolved the commission – and after U.S. Attorney Preet Bharara took the commission’s files and promised to continue its work.

“It’s not a legal question. The Moreland Commission was my commission,” Gov. Cuomo said. “It’s my commission. My subpoena power, my Moreland Commission. I can appoint it, I can disband it. I appoint you, I can un-appoint you tomorrow.

“So, interference? It’s my commission. I can’t ‘interfere’ with it, because it is mine. It is controlled by me.”

And now he says it wasn’t.

That doesn’t wash, even though some commissioners issued statements backing what Gov. Cuomo now says.

Erie County District Attorney Frank Sedita said some of his fellow commissioners discussed resigning when they heard the governor’s office tried to block their subpoenas, but the office later backed off. One of the commission’s three chairs, Onondaga County District Attorney William Fitzpatrick, said Monday he would have quit if Cuomo’s administration had sought to direct the commission.

“The bottom line is that nobody ‘interfered’ with me or my co-chairs,” Fitzpatrick said.

Yet Gov. Cuomo’s statements to the Times and Crain’s make clear that he didn’t think the commissioners had free will.

Maybe his office persuaded these prosecutors to say these things over the last five days.

It’s also possible the governor’s office had simply browbeaten them into submission. The Times describes Larry Schwartz, Gov. Cuomo’s top staffer, ordering Mr. Fitzpatrick to withdraw a subpoena against a media-buying firm of which Gov. Cuomo was a client. Mr. Fitzpatrick told the Times he agreed to pull the subpoena.

“In another pressure-packed session, Mr. Schwartz specifically told the commission’s co-chairs that the governor himself was off limits,” the Times wrote.

Also, commissioners told the Times they feared the governor’s office was spying on their emails.

Just because they caved to bullying doesn’t mean they were allowed free rein.

When Gov. Cuomo appointed the panel last summer, he said, “They’ll follow the money and go where the commission determines to go.” But when the commissioners followed the money, the trail led them to the governor and his allies – and then the governor’s staff killed the commission.

What about that money trail? Was it pay-to-play? Big donors expect big favors. Was the governor guilty of the same kind of thing that’s brought down others in Albany? Those questions are now in the hands of the U.S. attorney’s office.

Why did Gov. Cuomo appoint this panel to begin with? His contradictory statements suggest that despite his public statements that the panel could investigate him, too, he privately expected to protect himself by controlling the commission.

Did he talk to his father about it? It might have helped.

In 1986, Gov. Mario Cuomo and New York City Mayor Ed Koch appointed another Moreland commissionled by John Feerick, dean of Fordham University’s law school. According to the New York Law Journal (July 19, 2013), the elder Cuomo not only let the seven-member “Feerick Commission” proceed for 40 months and issue 20 reports prior to its final set of recommendations, the governor let the commission investigate his own campaign finances. That resulted in some embarrassing disclosures, such as this from the Albany Times Union in 1990: “Gov. Mario M. Cuomo is still soliciting contributions of up to $25,000 and is well on his way to having a $10 million campaign kitty despite criticism of such fund-raising practices by the Cuomo-created State Commission on Government Integrity.” Yet it also showed that the governor’s office really was being honest and fair. (Thanks to Capital magazine’s Blake Zeff for pointing us to these articles.)

The Feerick commission wasn’t allowed to prosecute, a flaw Andrew Cuomo corrected with his Moreland commisson. He got Attorney General Eric Schneiderman to lend his weight to the the panel, but then Schneiderman stayed quiet when he should have empowered the commission to follow the money – even to the second floor of the Capitol.

Gov. Cuomo might say, justifiably, let’s not forget the Legislature, the proven source of Capitol corruption. The Senate and Assembly are the reason Moreland commissions are needed. Andrew Cuomo appointed his panel because he couldn’t get lawmakers to pass ethics bills, and when they did – watered-down ones – he disbanded the panel.

But the Commission to Investigate Public Corruption was too good, too necessary, too lively a thing to remain his pet. It had wings, and it tried to fly away from him even as he struggled to keep it caged. He tried to claim this bird was both free and his possession, depending on whom he was talking to.

Now that it’s dead, it’s more alive than ever in the public mind. And by denying that he tried to control it, Andrew Cuomo has lost a great deal of credibilty.