Cuomo’s outstanding civil and criminal consequences

Gov. Andrew Cuomo announced his resignation on Tuesday, a move considered unthinkable just a few weeks ago. While it saves him from being convicted in an impeachment trial, Cuomo could still be on the hook in criminal and civil cases regarding the allegations of sexual harassment that spelled his downfall.

In the address announcing his resignation, Cuomo said he acted for the good of the state in order to save it from a time-consuming and costly impeachment process. It’s unclear whether the Assembly will continue with its inquiry and bring articles of impeachment after the governor is gone in two weeks, but Cuomo cannot get away from other potential consequences so easily.

District attorneys in Manhattan as well as in Nassau, Albany, Oswego and Westchester counties are looking into potential criminal behavior detailed in the state attorney general’s report. The most severe and egregious allegations against Cuomo came from Brittany Commisso, identified as Executive Assistant No. 1 in the report before she went public, who accused Cuomo of groping her, and an unnamed state trooper claimed Cuomo inappropriately touched her. Both fall within the statute of limitations for a criminal case. 

The attorney general’s report concluded Cuomo could be charged with third-degree sexual abuse and forcible touching, both misdemeanors that could carry jail time and a fine. The path forward for these charges remains unclear, as such low-level criminal offenses often don’t go to prosecution as they can be difficult to prove beyond a reasonable doubt, according to employment attorney Kevin Mintzer. These circumstances are far from ordinary though, and prosecutors may look to make an example of a high-profile figure like Cuomo.

So far, only Commisso has filed a criminal complaint with law enforcement. Albany Sheriff Craig Apple announced on Saturday that his office was working with the county district attorney to investigate Commisso’s claim that Cuomo groped her in the Executive Mansion last year. “I’m not going to be intimidated. I’m not going to be coerced,” Apple said in the announcement. He did not back down on Tuesday despite Cuomo’s resignation, indicating the move will have no bearing on his investigation. “It was never about his office, although I appreciate him putting the people of New York first and stepping aside,” Apple said. He has declined to offer a timeline for the criminal investigation, but it’s clear that it will continue.

Cuomo also faces the prospect of civil lawsuits in both federal and state court over his alleged sexual harassment, which would be subject to a lower standard of proof than criminal prosecution. Although survivors could sue the state, the governor also has personal liability for his behavior. The attorney for Lindsey Boylan, a former high-ranking administration staffer and the first person to describe harassment at the hands of the governor, said she intends to sue Cuomo and his staff for alleged retaliation against her that was detailed in the attorney general’s report. Cuomo and his administration leaked personnel documents about Boylan late last year after she first said he had harassed her. The attorney general report concluded this action to be unlawful retaliation in an attempt to discredit her.

When asked what Cuomo’s resignation means for the planned lawsuit, a spokesperson for Boylan’s attorney referred to a statement Boylan made on Twitter, which did not mention legal action.

There is some precedent for elected officials being taken to court over allegations of sexual harassment, so the fact that Cuomo faces lawsuits now is not unusual despite his status as the state’s chief executive. Where things might get tricky, according to Mintzer, is with whether the state covers the cost of Cuomo’s defense and any potential settlements, something that could happen under the state Public Officers Law. Even once he’s out of office, the state might still be able to indemnify Cuomo and handle his civil liabilities. 

Normally, the attorney general’s office makes the determination on indemnity for public employees, a prospect that seems complicated now given the office’s report and its findings on Cuomo’s alleged wrongdoings. This particular situation is also largely unprecedented. A spokesperson for Attorney General Letitia James did not immediately return a request for comment.

The prospect of the state handling Cuomo’s defense seems somewhat unlikely given the history with sexual harassment lawsuits in Albany. In the high-profile case of former Assembly Member Vito Lopez, who was sued by two former staffers represented by Mintzer for harassment, the state did not cover his defense. However, when he reached a settlement with the women of $580,000, Lopez paid only $35,000, with the state covering the rest. At the time they reached the settlement, Lopez was no longer a sitting lawmaker.

Along with the uncertainty around who might cover Cuomo’s lawsuits costs also comes the prospect of unknown deals negotiated around his resignation. The City reported a day before Cuomo stepped down that he was trying to cut a deal with state officials to avoid impeachment, although none were biting. Assembly Speaker Carl Heastie also denied that he had spoken to Cuomo in months when asked about potential deal-making. But the governor’s resignation may have come with undisclosed strings attached, which could impact both the criminal and civil consequences he may face.