Monthly Archives: August 2014

Cuomo’s Slow-Mo Disaster

The New York governor is in deeper legal trouble than he realizes.

By JEFF SMITH August 10, 2014

Andrew Cuomo is in serious trouble. Preet Bharara, the hard-charging U.S. attorney for the Southern District of New York, has turned up the heat on his administration’s alleged interference with an anti-corruption commission he appointed, and for the first time in the New York governor’s four-year tenure, he’s lost control of a situation. That’s an awful feeling for any politician, but especially for one who so prizes control, and who prides himself on playing political chess while his opponents play checkers. It’s the classic tale of a pol so consumed with avoiding a short-term image hit that he risked his long-term freedom. (I know the story well, because five years ago this week I lost control of a similar situation and ended up in prison for obstruction of justice.)

Let’s examine the peril of Cuomo’s predicament, which is far more serious than some believe. Few U.S. attorneys – particularly not the pugnacious Bharara – get into public pissing matches they intend to lose. And the stakes are high: Cuomo is one of the nation’s most powerful governors and heir to the national liberal mantle that his father, former governor Mario Cuomo, assumed with his poetic 1984 “Tale of Two Cities” Democratic National Convention speech. Decades later, leading Democrats continue to appropriate the elder Cuomo’s rhetoric; it was the basis for John Edwards 2008 presidential campaign as well as New York Mayor Bill de Blasio’s triumphant 2013 mayoral bid – not to mention Sen. Elizabeth Warren’s current stump speech. Based on that lineage and his “taming” of a formerly chaotic state capital by producing four on-time budgets, Cuomo the younger has been mentioned as a possible presidential candidate in 2016 (if Hillary Clinton doesn’t run) or 2020 (if Hillary runs and loses).

But despite the passage of timely balanced budgets, New York State government isn’t in great shape. Lately, more Albany politicians have gone on to prison than to higher office. Most of the cases involved bribery. In an attempt to reduce the influence of money in the New York capital – or, in the eyes of skeptics eying his $35 million war chest, appear as if he wanted to reduce said influence – Cuomo appointed the Moreland Commission to investigate politicians’ unethical and illegal behavior. To demonstrate the gravity of his endeavor, he had state Attorney General Eric Schneiderman officially designate commissioners as deputy attorneys general, thereby granting them law-enforcement powers. But once the commission got started, the trail led to some of Cuomo’s biggest funders.


The governor then faced a choice: endure any embarrassing revelations an inquiry may produce, or quash the inquiry and avoid short-term re-election campaign turbulence. Cuomo chose political expedience.

According to the New York Times and my conversations with people involved, Cuomo’s top aide Larry Schwartz called commissioners and commission staff multiple times and directed them not to subpoena major Cuomo backers. Federal witness-tampering law bars attempts to conceal documents or otherwise obstruct an official proceeding.

Soon thereafter, following passage of a watered-down ethics bill that gave Cuomo the political victory he felt he needed, the governor dissolved the commission. That’s when Bharara decided to pursue the tangled threads left by the commission’s abrupt disbandment.

Though Cuomo hunkered down when City and State and the New York Daily News ran smaller stories about his administration’s meddling, he denied any inappropriate interference after the recent Times expose. In concert with his public statement, another senior Cuomo aide, Joseph Percoco, allegedly called several commissioners to request public statements backing up Cuomo’s; Schwartz may have resisted making the calls this time around. Several supportive statements from commissioners magically appeared in media inboxes within minutes of each other. Percoco’s intervention may have violated federal obstruction of justice statutes, which prohibit attempts to “influence, obstruct, or impede, the due administration of justice.” Courts have expansively interpreted the “due administration of justice” clause to forbid any conduct interfering with a legal proceeding, which would encompass Bharara’s investigation.

To obtain a conviction under this clause, Bharara must prove that the defendant attempted to obstruct a pending federal proceeding. Cuomo’s acknowledgment of his staff’s communication with commissioners in advance of their supportive statements is important. Such communication is innocuous if it merely “correct(s) the record,” as Cuomo stated, but if it attempts to “corruptly persuade” commissioners by convincing them of an untrue story, then it constitutes obstruction of justice. Since contemporaneous records of commission and staff frustration at Cuomo’s attempts to thwart subpoenas exist, it will be difficult for him to argue that his aides were merely encouraging commissioners to make truthful statements. Even the fact that Percoco allegedly asked commissioners to communicate with him through private email messages rather than through their government accounts could be problematic, given 18 U.S.C. §1512(c), which prohibits attempts to conceal evidence during an investigation.

Perhaps Cuomo’s best defense is that commissioners’ testimonials were not sworn statements during legal proceedings, but merely incidental to the ongoing investigation. However, prosecution for obstructing justice under 18 U.S.C. §1512(b)(3) does not require proof that the defendant intended to obstruct a particular proceeding; federal judges have ruled it sufficient if the misleading information relating to a potential federal offense is likely to be transferred to a federal agent, a case Bharara could easily make following his seizure of all Moreland Commission material.

That Cuomo aide Percoco allegedly conducted this recent round of calls and Schwartz the earlier ones is consequential. Anyone familiar with the concept of the Prisoner’s Dilemma understands why. Instead of one top Cuomo aide in legal jeopardy, there are now two—and Bharara will doubtless seek to play them against each other, just like in the cop shows where the detectives split up the two suspects into separate interrogation rooms and tell each one, “Your buddy’s down the hall right now singing like a canary – you know that, right?”

But U.S. attorneys don’t get together and swap stories about the time they brought down a political staffer, and they don’t become U.S. attorneys general that way, either. Make no mistake: Bharara wants Cuomo’s scalp, and he has two people he can leverage to get it, if indeed the governor blessed the original thwarting of subpoenas, the more recent pressure on commissioners to make false statements backing up his denial of interference, or both.

Unfortunately for Cuomo, some obstruction statutes treat accomplices before the fact as principals, which means that he would be liable for anything Schwartz or Percoco did, provided he had advance knowledge. And given his legendary micromanagement – Cuomo is famous for producing groundswells of support at opportune junctures, whether on behalf of policy initiatives or his own career advancement – it’s hard to believe that he wasn’t at least aware of his aides’ actions. (As ex-governor David Paterson wryly observed amid mounting pressure to abandon his re-election bid and make way for then-Attorney General Cuomo, “Drumbeats remind me of orchestras, and orchestras remind me of orchestration.”)

If a sole aide is implicated in an effort to protect his boss, he’ll sometimes take the fall by saying that he acted independently, hoping that his boss – especially one about to easily re-elected to a powerful governorship – will appreciate his extraordinary loyalty and remember him post-prison. That option might be preferable to giving up one’s boss, an act that makes a high-level political adviser essentially unemployable by other politicians, lobbying firms and trade associations.

But if there’s a second aide who is implicated, and whose proximity to the principal affords knowledge that the principal approved – or even orchestrated – a cover-up, the calculation is very different. The first aide is no longer simply weighing the benefits of cooperation (a substantially reduced sentence) against the costs (the cognitive dissonance of betrayal and future reputational damage); he is now weighing the odds that the other aide might implicate him first, rendering his own information nearly useless. That’s the crux of the Prisoner’s Dilemma, and it’s why each player’s dominant strategy, according to the game theorists who use it, is to snitch before the other guy can.

Many, including New York Daily News columnist Bill Hammond, believe that Cuomo will walk. Hammond – and some criminal defense attorneys who agree with him – offer several reasons for this, most notably Bharara’s limited federal jurisdiction over this state investigation of state officers. However, legal precedent that prosecutors need not prove that an official federal proceeding was pending during the alleged offense, nor must they prove that the offender is aware of an investigation’s federal character. Indeed, according to holdings in New York’s own 2nd Circuit and in the neighboring 3rd Circuit, a defendant’s belief that a witness is reasonably likely to confer with federal authorities can be inferred from the nature of the offense and additional appropriate evidence; Bharara’s seizure of the Moreland Commission’s files, unambiguous public announcement of his intent to investigate and serial prosecutions of Albany legislators since taking his post would seem to provide sufficient evidence. In simpler terms: Ignorance of an investigation is no defense.

Hammond also seconds Cuomo’s argument that he can’t possibly interfere with his own commission, citing the precedent of pre-Depression-era Gov. Al Smith, who twice appointed himself the sole Moreland Commission member. But Smith did not deputize 34 commission members as deputy attorneys general with autonomous law enforcement power, which seems to render the comparison moot.

By Hammond’s account, prosecutors would be hard pressed to discredit repeated public statements from commissioners who have denied any improper interference or intimidation. Yet it would seem that a jury might weigh other evidence of interference – documents and, potentially, sworn statements buttressing that evidence – more heavily than public pronouncements made only after pressure from Cuomo aide Percoco, who even offered to draft the statements, according to multiple sources.

Lastly, Hammond argues that the commission’s eventual pursuit of many inquiries to which Cuomo objected indicates that any attempted Cuomo interference was ultimately ineffectual. That’s not unlike arguing for a terrorist’s innocence after the bombs he planted failed to detonate. The commissioners’ apparent steadfastness absolves the Cuomo administration of nothing.

As I wrote when New Jersey Gov. Chris Christie’s George Washington Bridge fiasco broke, federal prosecutors aren’t limited to investigating the matter that first attracted them to a target; probes often widen as new information emerges. Like wartime generals, federal prosecutors rarely have just one attack route. Just as they brought down Al Capone for income-tax evasion, not bribery, bootlegging or murder, they could end up indicting Christie for any number of other imbroglios about which troubling facts have emerged since the “Bridgegate” story broke. As someone who did time after a five-year, off-and-on inquiry that began with an examination into a 3×5 campaign postcard and ended in obstruction-of-justice charges due to discoveries from an unrelated investigation into a car bombing (!), I’m well-acquainted with the unforeseen places to which these inquiries can lead.

Five years ago, I was in Cuomo’s shoes. Like his, my troubles began with a stupid and reckless campaign decision to seek short-term gain before the cover-up spiraled out of my control, leading to my indictment. I remember the gut-punch when I learned that my best friend was wearing a wire, and the numbness as I told my parents that I was probably headed to prison. I wouldn’t wish that on my worst enemy.

Unfortunately, too many politicians forget that no political edge is worth their freedom. That’s why instead of sucking it up and taking a short-term political hit, we end up enmeshed in career- and freedom-threatening situations like this one. On the fortieth anniversary of President Nixon’s resignation, it is beyond cliché to say that it’s never the crime; it’s the cover-up. But it’s trite because it’s so true: Most of the original “crimes” are merely politically embarrassing, while the cover-ups are often criminal.

Someone once joked that God wished to have real power in his second life, and so became reincarnated as a U.S. attorney. Today, Andrew Cuomo is learning the truth behind that jest.



More lost emails — When will Democrats have enough?

By Rick Manning, The Hill contributor August 11, 2014

Twenty different Obama administration officials have lost or destroyed a portion of their email traffic. Email traffic that was, in some cases, under subpoena or in others requested as part of a larger inquiry into the conduct of the executive branch.

House Committee on Oversight Chairman Darrell Issa (R-Calif.) expressed his frustration at the revelation that another Obama official, Marilyn Tavenner, the director of the Center for Medicare Services, deleted emails in the wake of the botched website roll out, stating, “It defies logic that so many senior Administration officials were found to have ignored federal recordkeeping requirements only after Congress asked to see their e-mails [sic].”

Yes, Rep. Issa, it does defy logic.
The brazenly contemptuous stonewall-and-erase-evidence approach to congressional inquiries preferred by the Obama administration is perhaps this president’s greatest affront to our constitutional system of government.

When you have records going missing across an administration, it is impossible to conclude anything other than it is a coordinated and condoned cover-up, and not just a series of incompetent, coincidental keystrokes wiping out information.

The conclusions get even uglier when you realize that the IRS dismissed the government contractor responsible for maintaining back-up files of their emails concurrent with Lois Lerner and her band mysteriously having their computers flatline.

The question is, where are the Democrats in the face of this obvious malfeasance?

During the Watergate scandal that brought down the presidency of Richard Nixon, a few Republicans came forward and urged the president to come clean. Yet, the silence is deafening from Democrats in both the House and Senate in the wake of this obvious obstruction of the congressional oversight function.

Where are the patriots on the Democratic side, who are willing to stand up to an executive branch that has declared them inconsequential?

The Democrats’ partisan acquiescence to Obama’s declaration of war against congressional prerogatives sets the precedent that future presidents can hardly be faulted for following. A precedent that makes a mockery of the legislative branch and brings into question why we bother even providing office space for Congress at all?

With 20 Obama officials from all over the government losing critical emails, one wonders what, if any, is the threshold for Democratic outrage?

When are the Democratic Party and their elected officials going to put our nation ahead of partisanship?

If the past few years are any indication, I’m not holding my breath.

Manning (@rmanning957) is vice president of public policy and communications for Americans for Limited Government. Contact him at


Cuomo’s enemies have become emboldened

August 5, 2014 by alanchartock

“Is Andrew Cuomo in trouble because of recent New York Times revelations?” is a frequently asked question. The answer is “maybe.” It’s hard to believe that a man who will probably come into this election period with about fifty millions dollars in his campaign account could lose to a little known Westchester County Executive, Rob Astorino. While the polls will show a tightening of the race, the present gap between the two men seems insurmountable. Already it is hard to turn on a television without seeing a Cuomo ad. All the Cuomo accomplishments from the extraordinary gay rights legislation to the SAFE Act which attempts to bring order to the gun violence mayhem really are something to behold. The number one thing that I hear about the guy is that “He gets things done.” People may not love the guy, but they have the impression that he cares and that he is tough enough to do important things. That impression may be endangered.

The Cuomo problem is that he has incurred the wrath of two of the most important institutions in the United States, Preet Bharara, the United States Attorney and the New York Times, the newspaper that remains the most important newspaper in the world. It is as if a hurricane had landed on Cuomo’s door. Anyone who thinks that even the popular son of a fabled governor can take on those two institutions better think again. For his part Cuomo has put people in jail as an attorney general for ethical and criminal violations. The sense of rectitude surrounding the guy is what has made him the politically popular man he is. Now the bloom is off the rose. The revelations that Cuomo appointed a crime fighting commission and then killed it for political reasons has undercut the moral high ground from under him. Because he has always been seen as “Andrew Tough Guy,” he has a lot of enemies who have been scared to death of him. Anyone who has ever perceived themselves as the victim of a bully knows that when the bully gets into trouble, people who thought themselves oppressed will suddenly develop guts.

Cuomo’s problem is that the insiders, many of whom have been waiting for this day, have now been emboldened. The reason for their fear of Cuomo has always been that the young governor is immensely popular with the people. So it is with breathless anticipation that the next round of polls is anticipated. If, as expected, the new Cuomo revelations take their toll, you had better believe that all those who have issues with the guy will become more and more emboldened. That’s when inside people leak more. As it stands now it is hard to believe that U.S. Attorney Bharara has enough to indict anyone around Cuomo, but there is the old adage that a DA can indict a ham sandwich. People are wondering just how far Bharara will go. The Times has published its extraordinary revelations about Cuomo and his actions and Cuomo has actually frontally attacked the credibility of the Times. I used to have a colleague in my first academic job at Rutgers who would assess a situation and then yell at the top of his voice, “MISTAKE!”

Now Cuomo says he will adhere to my eighth grade math teacher’s admonition to me to “Keep shut.” I have always said that Cuomo is a strategic genius but he appears not to be averse to the single thing that kills politicians, “arrogance.” Cuomo has indicted and jailed politicians who thought they could do anything because of their sense of self importance. Cuomo, like the rest of us has a character that was formed in the early years of his life. It seems clear to me that his political survival and advancement now depends on his ability to “mature,” take stock and make friends. If he becomes encircled and continues to instill fear in to those who surround him, he could be in trouble.

Originally published in the Legislative Gazette, 8/4/14

Cuomo Aides Use Allies to Shore Up the Governor’s Image


ALBANY — Gov. Andrew M. Cuomo’s behind-the-scenes efforts to shore up support for his handling of an anticorruption panel inadvertently landed him in an even greater bind last week, prompting a scathing rebuke from the top federal prosecutor in Manhattan.

But it also shined a spotlight on a covert public relations tactic that has been used by Mr. Cuomo’s aides, who are keenly sensitive to how their boss will be portrayed in the news media.

The strategy — getting allies to send journalists laudatory statements, seemingly of their own volition — is one that, by showing no fingerprints of the governor’s aides, would seem to increase the credibility of the praise.

Reporters were bombarded in February, for example, with statements from supporters of a plan by the governor to finance college classes for prison inmates, which he later abandoned after resistance from lawmakers.That same month, when Mr. Cuomo and Mayor Bill de Blasio were skirmishing over how to pay for an expansion of prekindergarten, a gaggle of mayors and county executives seemed to spontaneously throw their support behind Mr. Cuomo.

One of the mayors who sided with Mr. Cuomo was Mike Spano, the mayor of Yonkers. On Feb. 12, his office sent an unsolicited statement to reporters in which he asserted that Mr. de Blasio’s proposal, which called for raising taxes on wealthy city residents, would cause half of the state’s children to be “left out in the cold” and would create “more inequality, not less.”

Mr. Cuomo’s aides told multiple news organizations that they had not coordinated that barrage of statements, which produced biting headlines like “Upstate pols reject de Blasio pre-K tax plan”.

But email correspondence newly obtained by The New York Times under the state’s Freedom of Information Law shows that the governor was indeed involved in promoting the criticism of Mr. de Blasio.

At 7:29 p.m. on Feb. 12, Betsey Ball, the governor’s director of legislative affairs, sent an email to Mr. Spano’s chief of staff, Denise Egiziaco, with the subject line: “Thank you.” In the body of the message, she included email addresses for more than 200 journalists and news organizations.

Three minutes later, Ms. Egiziaco confirmed receiving the list. Mr. Spano’s office sent reporters the statement at 8:18 p.m., and Ms. Egiziaco forwarded it to Ms. Ball at 8:20.

A spokeswoman for Mr. Spano, Christina Gilmartin, said the issue of prekindergarten was of interest beyond Yonkers, and described the sharing of email addresses as a common practice among government press offices.

“He just wanted to support the governor,” Ms. Gilmartin said, adding, “They have a more expansive press list than we do, obviously.”

Asked to reconcile the emails with its previous denials that it had coordinated the statements, the governor’s office did not directly respond. A spokesman for Mr. Cuomo, Richard Azzopardi, said in an email, “In building our case to the people, we believe it’s important to share the views of those we’ve consulted with who have helped inform our positions and form our policy stances.”

Politicians routinely issue news releases containing favorable quotations from supporters, which often require extensive hidden negotiations — though Mr. Cuomo’s aides have sometimes simply ghostwritten them.

But no batch of synchronous statements has drawn as much scrutiny as those released on July 28 by members of the now-defunct Moreland Commission, an anticorruption panel.

The statements followed a July 23 report in The Times that Mr. Cuomo’s office had deeply compromised the work of the Moreland Commission, intervening repeatedly when it focused on groups with ties to Mr. Cuomo.

Some commissioners were asked by people with ties to the governor to release supportive statements, according to people familiar with the matter who insisted on anonymity for fear of reprisal.

The Times Union of Albany reported last week that Joseph Percoco, a longtime Cuomo aide who is now managing the governor’s re-election campaign, offered to provide drafts of statements to some commissioners.

But the flurry of statements from commissioners backing Mr. Cuomo prompted federal prosecutors to warn of the possibility of criminal witness tampering or obstruction of justice charges, given the ongoing investigation.

The statements by Moreland Commission members were not the only ones that Mr. Cuomo’s office orchestrated in the aftermath of The Times’s story.

Reporters received a flood of announcements from his office: an award bestowed upon a food safety laboratory; the creation of a group to study issues pertaining to the craft beer industry; and the governor’s signing of a bill to change the wheelchair symbol designating accessibility to people with disabilities.

Several advocates separately emailed reporters to say they were pleased that Mr. Cuomo had signed the bill to change the accessibility symbol.

Kevin Cleary, a lobbyist for an association of nonprofit groups that provide services to people with disabilities, said a press aide in Mr. Cuomo’s office had asked for statements, and advocates were eager to voice their support for the bill.

“Nothing out of standard practice,” he said. “We were happy to promote it.”

Gun prohibitionists can’t have it both ways

August 3, 2014  Dave Workman -

A column posted today on Town Hall and a story reported late last night by the Los Angeles Times add new perspectives to an old dilemma for gun prohibitionists who adhere to the “only cops should have guns” mantra, but are then corner-boxed by their own rhetoric when a policeman shoots the wrong person.

The Town Hall piece, by veteran Chicago Tribune columnist and editorial writer Steve Chapman, notes that “gun control advocates are learning the downside of getting their way.” Supporting extreme measures, that have included gun bans, are failing because the courts are ruling against them on constitutional grounds.

Chapman speaks from experience. His city has been “ground zero” for some ground-breaking legal activity on gun rights, much of it involving the Bellevue-based Second Amendment Foundation. SAF’s 2010 Supreme Court victory in McDonald v. City of Chicago was the first in a string of defeats for the city’s extremist anti-gun policies that also included Ezell v. City of Chicago and, in a large sense, Moore v. Madigan and the National Rifle Association’s similar Shepard v. Madigan that forced Illinois to adopt a concealed carry law.

Chapman might have included an observation that it has been the invariable result of gun control efforts, from the White House on down, that gun sales — and in more recent times, carry permit applications — have gone up. For example, last month at this time, Examiner noted that in Washington state, more than 461,000 active concealed pistol licenses were reported by the state Department of Licensing. This column will get new data tomorrow, so watch this space.

Gun control proponents on the one hand wish to make it as difficult as possible for private citizens to have firearms. Whether it’s in the form of a gun ban, or restrictive measures like Washington’s Initiative 594, an 18-page gun control scheme that was being discussed feverishly yesterday at the Washington Arms Collectors gun show in Puyallup, each time the public sees a threat to the right to have a gun, they react accordingly, and stock up.

On the other hand, liberals who feverishly support such controls, thus essentially giving government something of a monopoly on the use of force, cringe when they read stories like the one out of California. There, according to the Los Angeles Times, “a Los Angeles County sheriff’s deputy inadvertently shot and killed the resident of a Pico Rivera home during a gunfight with a wanted parolee Friday.”

Fifty-four-year-old Frank Mendoza will never see another birthday because he was “mistaken” for the guy lawmen were really after. He is just as dead as if he had been killed by a legally-armed citizen, or for that matter, a criminal, but one might anticipate a different outcome in any investigation of such a tragic shooting than may come out of the real-life-and-death mess in Pico Rivera.

Newspapers aren’t likely to launch a shrill cry to disarm the police, as they might with a “we-told-you-so” attitude about laws, or court rulings, that are forcing government to honor the right to bear arms.

The California report also says something about restrictive gun laws without saying it at all. The bad guy was a “wanted parolee” who was armed, and allegedly fired at police several times. Identified as Cedric Ramirez, he had a gun despite California’s very tough gun control laws, which include a “universal background check” provision, and a prohibition on felons with firearms.

Laws against felons having guns have been failing since they were first passed. The other day, the Seattle reported about Jerrod Marks II, a convicted 19-year-old felon who was arrested for “test firing” a stolen Glock pistol outside a “gangster rap concert” at a bar on Seattle’s Beacon Hill. The only people truly discouraged from having guns by tough gun laws are law-abiding citizens who have no intention of doing something wrong.

I-594 would make Washington like California. No Seattle liberal worth his weight in legalized pot is going to roll over and play dead if rhetoric were to suddenly become reality and only cops — and criminals, of course — had guns. The overwhelming majority of police and sheriff’s deputies support the rights of armed citizens, another bit of irony for the gun prohibitionists.

The gun control crowd may be its own worst enemy. The anti-gun lobby’s campaign to reduce gun ownership has only expanded it. Its proposals to keep guns out of criminal hands haven’t disarmed criminals at all. Laws it defends have been struck down by courts as unconstitutional. Just how much more wrong can you get?


Cuomo’s Watergate?

July 31, 2014 – Legal Ethics Forum

The Times reports today that US Attorney Preet Bharara has warned Cuomo about obstruction of justice. This warning came after Cuomo on Monday defended his decision to disband the  state Moreland Commission formed to investigate corruption in Albany. Cuomo’s defense responded to a detailed Times story about interference with the Commission’s work by the governor and his  people. Concurrent with Cuomo’s Monday defense, some Commission members publicly said there was no interference. Cuomo repeatedly cited some of these statements. One of the Commissioners whose statements Cuomo cited several times had previously said or implied the opposite.

Although the possible implications from Bharara’s letter are far less sordid than the burglary and bribery in Watergate, the lesson is the same: It’s not the crime but the coverup. Left unsaid is that a coverup can also be a crime.

It may all turn out to be innocent (see below), but surely Cuomo did not need this headache. He did not need to give a Bharara a basis to investigate him and his inner circle. It could have been avoided if Cuomo had made his defense without the chorus of Commissioner statements.

Before Monday, I and others had been trying to figure out what statutes Bharara may have been looking at. Certainly, he could pursue evidence of corruption by state officials, including lawmakers, whom the Commission had been investigating before it was dismissed, and about which it had files.

But Cuomo’s claim that he had a right to disband the Commission, because it was “my” Commission, did not seem to be a basis for federal investigation even if it was a politically foolish decision and defense.

Now,  Bharara has a basis to investigate Cuomo himself and his aides. The statute would be 18 USC 1512(b) and possibly others. It is a crime to knowingly corruptly persuade another to keep information from an official proceeding. That’s the Arthur Andersen case in the Supreme Court among others.

There is a sitting grand jury, which is an official proceeding, and former Commissioners must have been aware that they could be witnesses even if not yet subpoenaed.  Cuomo would also be so aware.

Bharara is warning Cuomo that any effort to coordinate a false story (of non-intervention) that these Commissioners would  tell the grand jury if called would be a federal crime. This is so even if their statements are so far only public statements,  even if the effort fails because the Commissioners don’t testify. The statute forbids attempts.

Now, as I say, it may all be innocent. The Commissioners who spoke out, and who  prior to doing so may have been contacted by the governor’s people to solicit their statements (Bharara says he “has reason to believe” they were), may have spoken truthfully with no “knowing corrupt  persuasion” at play.

But Monday’s events put the governor is at risk in ways he was not before. The US obstruction statutes are incredibly broad. Whoever got the idea to coordinate the concurrent Commissioner statements, assuming there was coordination and not a coincidence,  and even if any such idea was entirely benign, may not have been aware of  what they were handing Bharara for investigation

The Insiders: Democratic phonies are on the run

Washington Post – Ed Rodgers July 30, 2014

What’s with all the Democratic Senate candidates being caught displaying a condescending, insulting contempt for voters? The latest embarrassing incident involves Georgia Senate candidate Michelle Nunn, who suffered the indignity of having her 144-page campaign plan leaked. By the way, whatever happened to political professionals applying the “Washington Post rule”? That rule is simple: If it wouldn’t be flattering if it was published in The Post, don’t put it in writing. Anyway, her entire blueprint for faux authenticity has been published, and it contains all of the usual and contrived political maneuvering that voters find so disgusting. The plan involves trying to create a fake, gun-toting, rural-friendly image for the wannabe Georgian senator supplied by a Democratic PR firm based in San Francisco, and exposes her positions on issues as basic as her commitment to Israel as contrived to drive her fundraising efforts.

But Michelle Nunn is only the latest Senate Democratic candidate to be exposed as a phony.

In March, Rep. Bruce Braley (D-Iowa), who is running for the Senate seat vacated by Sen. Tom Harkin (D-Iowa), thought he was having a private meeting with a bunch of out-of-state trial lawyers when he let them know he would be their dependable stooge if elected. He insulted and belittled Sen. Chuck Grassley (R-Iowa) and the livelihood of a lot of other Iowans, snickering about how Grassley – who is not a trial lawyer, but a farmer – could possibly be the next chairman of the Senate Judiciary Committee. Heaven forbid. The most damning clip from Braley’s remarks was when he disparagingly referred to Grassley as “a farmer from Iowa who never went to law school.” And things have gotten worse since then, as Braley’s opponent, Joni Ernst, is probably the biggest rising star among Republican candidates this cycle.

In June, in an effort to escape the sting of holding a large donor fundraiser with anti-coal Senate Majority Leader Harry Reid (D-Nev.) in Washington, Democratic Kentucky Senate candidate Alison Lundergan Grimes pledged she would take a strong stance in favor of coal. Well, that never happened. She just made it up. Not only did Senator Minority Leader Mitch McConnell’s opponent not challenge Reid about Kentucky coal during the fundraiser, pirated audio from the event revealed that she did not even mention the word “coal” once.

Then West Virginia Secretary of State Natalie Tennant, who is running against Republican Rep. Shelley Moore Capito for the West Virginia Senate seat, released a comical ad suggesting she is so bold, she will turn off the lights at the White House and fight her own party to save coal jobs in West Virginia. It’s embarrassing to watch. The very notion that once in Washington she would even try to be an authentic advocate for coal is absurd and everyone knows it. Tennant might know Sen. Joe Manchin (D-W.Va.) (the only legitimate Democratic friend of coal in Washington) and Joe Manchin may be a friend, but she’s no Joe Manchin.

Any one of these revelations would be uncomfortable for the Democrats. But the steady stream of these incidents is proof that Democratic candidates on the ballot in 2014 are trying to hide their positions from the voters. Think about it. Democrats have resorted to concocted images and positions, because if they told the truth about what they thought, they would lose the support of many of the middle-of-the-road voters who tend to turn out in midterm elections. It is naïve to think otherwise. Democratic candidates can’t reveal themselves as the liberals they are, and they can’t admit they will conform to the dogmatic liberal establishment’s policies as soon as they arrive in Washington.

It’s easy to say all politicians do it, but so far, it’s only the Democrats who have been caught. If this had been four Republicans, this type of behavior would immediately be an indictment of the entire party; but since it’s four Democrats, the party – starting with the Democratic Senatorial Campaign Committee – seems to be getting a pass. It’s past time to acknowledge the obvious pattern that has developed.

Law professor says U.S. attorney’s letter revives questions about Moreland conflict

By Michael Gormley July 31, 2014 Newsday

ALBANY — A reported letter from the U.S. attorney’s office shows concern about recent comments by Moreland Commission members statement during a federal investigation.

On Thursday, The New York Times reported that U.S. Attorney Preet Bharara’s office sent a letter to the attorney for the Moreland Commission on public corruption after Gov. Andrew M. Cuomo and some commissioners issued public statements on Monday. All defended the governor’s role in the Moreland conflict.

The comments released Monday were the first since the Times report on July 23. The Times reported emails and interviews showed Cuomo’s top aide sought to dissuade the corruption commission from issuing subpoenas against a major campaign donor to Cuomo and to the TV production company Cuomo uses in his campaigns.

Cuomo and commission co-chairman William Fitzpatrick said the Cuomo administration’s contact with the independent commission was appropriate and involved necessary advice, not coercion.

The commission members’ statements were released publicly Monday, when Cuomo, in Buffalo, answered questions to reporters on the controversy for the first time.

“This recent release suggests that the obstruction is happening now while the U.S. attorney tries to do his investigation,” Professor Laurie Levenson of Loyola Law School in Los Angeles said.

She said if the claims that the governor was intimidating commissioners are proven, there could be a crime.

“Thus, while the actions of shutting down the commission may not have been criminal, the interference with the U.S. Attorney’s investigation could be,” Levenson  said.

Cuomo spokesman Rich Azzopardi declined immediate comment on the letter or whether the Cuomo administration suggested or urged the commissioners to release their written statements Monday.

The Times reported Thursday that the letter read to a reporter states: “We have reason to believe a number of commissioners recently have been contacted about the commission’s work, and some commissioners have been asked to issue public statements characterizing events and facts regarding the commission’s operation.”

“To the extent anyone attempts to influence or tamper with a witness’s recollection of events relevant to our investigation, including the recollection of a commissioner or one of the commission’s employees, we request that you advise our office immediately, as we must consider whether such actions constitute obstruction of justice or tampering with witnesses that violate federal law,” the Times reported, quoting the letter.