Several entities are probing the evolving nursing-home scandal at once. Biden’s DOJ must pick a lead prosecutor — and soon.
Several entities are probing the evolving nursing-home scandal at once. Biden’s DOJ must pick a lead prosecutor — and soon.
T here could be as many as three — maybe even four — ongoing federal investigations of New York governor Andrew Cuomo’s administration, all focusing on the Coronavirus Task Force he established last year. There are some good reasons for this sprawl. There are also reasons traceable to politics, conflicts of interest, and good ol’ DOJ turf battles. It will need to be sorted out, and soon, if the probes are to get anywhere — assuming there is something beyond further illustration of the governor’s mendacity to get at. That old saw about having too many cooks? Too many prosecutors is worse.
Someone’s got to be put in charge of this kitchen, and it falls to President Biden’s Justice Department to decide. But first, let’s review the investigative offshoots currently in play.
The Civil Rights Division and ‘CRIPA’
The Justice Department in Washington began a probe last summer. This was a preliminary investigation run by the Justice Department’s Civil Rights Division (CRD), and it was not exclusively directed at New York — also implicated were the states of New Jersey, Pennsylvania, and Michigan. It is not a criminal investigation. DOJ has authority under the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA) to file civil actions.
In a related context, I have discussed how Democrat-dominated Congresses, particularly when Democrats also control the White House, are typically aggressive in extending Washington’s authority over the states. The civil-rights laws lend themselves to this.
Recall that, during the Obama years, we observed the CRD using civil suits, and the consent decrees by which they are often settled, to “reform” the nation’s police departments on the Left’s model of proper law enforcement. The CRD’s authority for this was a provision in the 1994 Clinton crime bill that empowers the DOJ to file civil “pattern or practice” suits — i.e., to sue states and their agencies, including police departments, for allegedly engaging in practices that deprive people of their civil rights.
CRIPA is analogous. It was enacted in the Jimmy Carter era, with Democrats in firm control of both political branches. It empowers the Justice Department to file civil suits against states and their agencies that allegedly engage in a pattern or practice that deprives institutionalized persons of their civil rights.
At the time, Governor Cuomo and other Trump critics were quick to point out the blatant political dimension of the DOJ’s resort to CRIPA — as if Democratic administrations ever hesitate to act in such contexts. To be sure, Cuomo was getting fawning media attention for his supposedly expert handling of pandemic challenges, while the press roasted President Trump. New Jersey governor Phil Murphy was not getting quite the Cuomo hosannas, but he, too, was lauded despite his administration’s erratic pandemic performance; and Pennsylvania and Michigan, with similar nursing-home issues, were also critical battleground states in the then-upcoming election.
Still, there was more than partisan politics to this. There was political philosophy. Invoking the god of “Science,” the governors were exercising quasi-dictatorial powers that curtailed fundamental liberties. Murphy candidly conceded that the Bill of Rights did not factor into the decision-making. But it turned out that this god doesn’t cover social-justice demonstrations (or, evidently, school closings).
When Democratic governors not only turned a blind eye to but actively encouraged the throngs of left-wing protesters who blithely ignored the states’ COVID restrictions during the summer, they elucidated a toxic double standard: Economic and religious liberties were curbed, and small businesses were ruined, all in the name of quelling the virus; but protests (and their attendant rioting) were given a wide berth. Justifiably finding this offensive, the DOJ began filing and intervening in lawsuits grounded in the governors’ failure to provide thoughtful, respectful, and even-handed protection of civil rights in their COVID diktats.
The CRIPA investigation was a logical part of that effort. Moreover, by late August, when the DOJ issued its press release announcing the investigation, it was apparent that the states under scrutiny (including Massachusetts, which had been under investigation since the spring) had endangered elderly and vulnerable populations by requiring nursing homes to admit COVID-19 patients. On this point, the DOJ’s August press release specifically noted Cuomo’s now-infamous March 25 order:
No resident shall be denied re-admission or admission to [a nursing home] solely based on a confirmed or suspected diagnosis of COVID-19. [Nursing homes] are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.
The press release elaborated that, at that point, DOJ was simply requesting data from New York and the other states in question. CRIPA mandates that, before filing a “pattern or practice” lawsuit based on alleged abuse of institutionalized persons, there must be weeks of consultations between Main Justice and the state governments. The idea is to encourage the states to take remedial measures rather than be subjected to litigation that would pit them against the Justice Department (and its gargantuan budget that intimidates most into settling on Washington’s terms).
The SDNY Sidelined
CRIPA is a powerful prosecutorial weapon, but the CRD’s jurisdiction is limited to the civil-rights laws. There is more than that to the Cuomo investigation. Plus, the CRD is a Main Justice component. New York is not its playpen, and, to the frequent chagrin of Washington, the state’s federal district prosecutors are very territorial — battling with each other over attractive cases and growling when Main Justice even thinks about poking its nose in as anything more than a nominal supervisory nuisance.
The Empire State’s government has a storied history of corruption. And, because nothing whets an ambitious prosecutor’s appetite more than a political scandal in the intense New York media spotlight, state government corruption allegations are certain to ignite turf wars. The 800-pound gorilla in these wars tends to be the Southern District of New York (where I worked for many years). The SDNY is notoriously independent of (i.e., resistant to) DOJ oversight, but usually gets away with it due to size (it is bigger than neighboring federal district offices), geography (virtually everything touches Manhattan, the media capital), and tradition (the SDNY produces strong results and is generally nonpartisan, so it makes the DOJ look good and can make Main Justice’s political appointees look bad if they appear to be interfering out of partisanship).
Besides these natural advantages, the SDNY would ordinarily have a lock on a new Cuomo investigation because this is familiar territory. Starting in 2014, the SDNY conducted an intensive corruption investigation of Cuomo’s administration. The governor escaped prosecution, after interfering with a corruption commission he had established with great fanfare and shutting it down when it got too close for comfort. Nevertheless, his top aide and confidant Joseph Percoco was convicted, largely on the basis of the accomplice testimony of Todd Howe, a longtime Cuomo aide-turned-lobbyist.
But in a strange twist, the SDNY finds itself on the sidelines of this go-round because of a conflict of interest posed by the governor’s top aide, Melissa DeRosa. It was Ms. DeRosa who let the cat out of the bag by admitting to state lawmakers that Cuomo’s Coronavirus Task Force had willfully withheld from them the true death-toll numbers traceable to state nursing homes. Cuomo officials did this, she said, because they were worried that the Trump Justice Department would politicize the data. (Translation: It might become known that, while Cuomo was posing as the COVID-slayer, he had blundered badly, then ham-handedly covered it up.)
As it turns out, DeRosa is married to Matthew Wing, a former Cuomo press secretary (he’s now a top exec at Uber). Wing’s mother is Audrey Strauss, the U.S. attorney for the SDNY (appointed by the court, not President Trump). A highly experienced prosecutor with a deservedly stellar reputation, Ms. Strauss would ordinarily be an ideal choice to run a public-corruption probe involving either major party. Obviously, however, Strauss cannot run a case in which her daughter-in-law is a central figure. (And let’s be clear: No one has accused DeRosa — or anyone else — of criminal wrongdoing; it is simply unavoidable that she is a participant in the matter under investigation.) That does not mean the SDNY could not handle a new Cuomo probe (there are sundry intra-office safeguards in conflict situations), but it is a complication in a politically charged case.
The Civil Division and the False Claims Act
With the SDNY uncharacteristically standoffish, the Eastern District of New York has recently jumped in with both feet. Even before that, Main Justice’s Civil Division (not to be confused with the CRD) also got in on the act.
Let’s start with the latter. Besides potential civil-rights liability, the Cuomo administration could face problems because the nursing homes that the state oversees receive lots of federal money through Medicare and Medicaid. If the federal government was provided with misleading information about nursing-home-related deaths, the state could be in violation of the federal False Claims Act, which DOJ may enforce by filing civil lawsuits. Consequently, in October, the DOJ’s Civil Division reportedly requested the same information the Cuomo administration had previously supplied to the CRD.
The EDNY and a Criminal Probe
Civil-rights investigations, and other probes involving potentially false claims on the government, often have a criminal component. This can happen because the event that triggers such an investigation could implicate civil rights, false statements, or fraud provisions in the penal code. And, as in all investigations, it can also happen due to obstruction of the Justice Department’s investigators.
Here, there are allegations that the Cuomo administration lowballed COVID-related nursing-home deaths by nearly half, reporting over 8,000 when the actual figure was over 15,000. What’s more, as National Review reported Friday, a watchdog group, the Empire Center for Public Policy, alleges that, between the time it was issued on March 25 and rescinded two months later, Cuomo’s nursing-home order may have been responsible for over a thousand deaths. The questions then become: Did state officials provide DOJ with false information; did they withhold data they were required to surrender; and did they intentionally hide the true nursing-home death toll?
As soon as the news broke that DeRosa had acknowledged misleading federal and state officials, the EDNY mobilized, along with the FBI’s Brooklyn-Queens office (the EDNY covers Brooklyn, Queens, Staten Island, and Long Island). They have venue because some of the relevant nursing homes are in the EDNY.
The EDNY also has an acting U.S. attorney, Seth DuCharme, who would like to be the full-fledged U.S. attorney, or at least hold on to the acting gig for a while longer. That would seem unlikely, at least at first blush, since DuCharme was appointed to the EDNY by Trump attorney general Bill Barr after a stint at Main Justice. Yet DuCharme is a career prosecutor with deep EDNY roots. As I’ve recounted, he recently worked closely with the new Biden Justice Department in the (absurd) voter “disinformation” prosecution. More to the point, he is savvy enough to know that, if he is running an investigation of New York’s Democratic governor, it could become more difficult politically for the Democratic president — a friend of the governor’s — to replace him with an appointee potentially more sympathetic to Cuomo.
And Let’s Not Forget the NDNY
Meantime, if that were not enough intrigue, Senator Chuck Grassley (R., Iowa), a senior Republican on the Judiciary Committee, has made a pitch for the Biden Justice Department to assign the Cuomo probe to Antoinette Bacon, the acting U.S. attorney in the Northern District of New York. It is not clear whether the NDNY has also entered the Cuomo fray. The office has jurisdiction over Albany, which is ground zero for much of the corruption action in the state. And needless to say, the NDNY does not appreciate that the SDNY and EDNY, its more famous downstate cousins, are forever stealing its thunder. But while Ms. Bacon also has a superb reputation, she is another late-stage Trump/Barr appointee, having been installed just two months before the 2020 election.
Get It in Gear
The Biden administration has already asked Trump-appointed prosecutors to tender their resignations, to be replaced as the new president’s nominees are confirmed in the coming months. The Cuomo complication is unlikely to cause Biden hesitation in installing U.S. attorneys of his own choosing in New York, in consultation with the state’s Democratic senators, Chuck Schumer and Kirsten Gillibrand. That will probably happen shortly after Merrick Garland is confirmed as attorney general. (Judge Garland’s confirmation hearing is scheduled for next week.)
There will not be media squawking. Even if the press were not naturally deferential to Democratic presidents, many of Trump’s appointees (including in the EDNY and NDNY) were never confirmed by the Senate. Biden is entitled to his nominees, Democrats have the numbers to confirm them quickly, and Schumer, the Senate majority leader, takes a special interest in appointments to top federal law-enforcement positions in his home state. It must also be noted that the aforementioned SDNY corruption investigation of the Cuomo administration was quite capably carried out during the Obama administration by then-U.S. attorney Preet Bharara. The Cuomo administration was cut no slack based on party affiliation.
All that said, the Justice Department needs to get it in gear.
Turf battles don’t happen just because the limelight of a political corruption case is irresistible to ambitious lawyers. They happen because all seasoned prosecutors know that carving up an investigation leads to a lousy investigation. If it is going to be done right, it needs to be done by one lead prosecutor, with the Main Justice components in supporting roles. The SDNY could do it even if Audrey Strauss has to be walled off. The EDNY or NDNY could do it, even if Seth DuCharme and Antoinette Bacon turn out to be short-timers. Each of these offices has able prosecutors, with anti-corruption experience, at the ready. But it is imperative that the DOJ quickly pick a prosecutor to run the show. Investigative sprawl only undermines a case, to the advantage of wrongdoers — and to the detriment of the public, which deserves the answers Governor Cuomo has concealed.