Cuomo could be impeached. Here’s how it would happen

ALBANY, N.Y. — The New York state Assembly may already have enough votes to impeach Gov. Andrew Cuomo.

Just not the right kind of votes.

There is no question that Cuomo is facing the biggest political crisis of his career, with calls for his resignation or impeachment after the disclosure of sexual harassment accusations against him and a controversy over his handling of nursing homes during the pandemic.

There are two parallel investigations into both his personal behavior and professional performance. One is overseen by state Attorney General Letitia James, who has deputized two independent attorneys; the second is led by the Judiciary Committee of the state Assembly, which hired an outside law firm and held its first meeting on the issue Tuesday.

The governor, who denies touching anyone inappropriately, has said he has no intention of resigning. He has also vociferously defended his administration’s COVID-19 response.

And while there is a path for Cuomo to be impeached, to understand how that could happen requires some knowledge of the process as well as a crash course in Albany, New York’s version of Political Math 101.

Here is what we know.

How Will the Assembly Investigation Play Out?

With few parameters in the state constitution defining impeachable conduct, Carl Heastie, a Bronx Democrat who serves as speaker of the assembly, agreed on March 11 to launch an investigation that would effectively determine if there were grounds to remove the governor from office.

Assemblyman Charles Lavine, Democratic chair of the committee, said Tuesday that the goal of his investigation is to determine whether the governor “has engaged in conduct which merits impeachment.” He said its scope included but “was not limited to” a series of sexual harassment accusations against Cuomo and a controversy over his and surrogates’ handling of nursing homes and death data from those facilities during the pandemic.

Other topics could include looking into whether the administration covered up potential structural problems on the Governor Mario M. Cuomo Bridge, which connects Rockland and Westchester counties, as well as whether the Cuomo administration has engaged in retaliation against accusers, interference with law enforcement efforts or fostering a hostile workplace.

The investigation will be conducted by Davis Polk & Wardwell, led by Martine Beamon and Greg Andres, two former federal prosecutors, and Angela Burgess, an expert in white-collar defense and compliance. They will have the authority to interview witnesses and subpoena documents.

The selection of the firm has been criticized by some, including Debra Katz, a lawyer for Charlotte Bennett, one of Cuomo’s accusers. She noted that Dennis Glazer, who spent more than 30 years as a partner at Davis Polk, is married to Janet DiFiore, chief judge of the Court of Appeals, who could oversee an impeachment trial in the state Senate.

Katz characterized the firm’s choice as “an unacceptable conflict of interest,” a contention denied by Heastie, Levine and the Davis Polk team.

Some left-wing lawmakers, who supported beginning impeachment proceedings immediately, have described the Assembly investigation as a delay tactic designed to buy Cuomo more time. The Assembly has insisted that the inquiry would be “expeditious,” and Andres said about six lawyers were already working on the case, with more to come.

Still, Lavine conceded Tuesday that findings were likely to take months, “rather than weeks.”

What Happens After the Investigation?

Most of the Davis Polk investigation will be conducted confidentially, in part to protect witnesses who wish to come forward, although many lawmakers are pressing for regular updates.

By the end, investigators will put together some sort of report, although it is unclear how many of the details will become public. The report will focus mostly on the facts and is not likely to recommend whether Cuomo should be impeached, according to a person familiar with the matter.

The members of the judiciary committee will then review the report and recommend whether the Assembly should impeach Cuomo, the person said. The Assembly could then decide whether to move ahead with impeachment.

The state constitution says an elected official can be removed from office “for misconduct or malversation in office,” but the constitution does not say what constitutes an impeachable offense. That is a key question lawmakers will have to grapple with.

How Would Impeachment Work?

It is difficult to say how the process will play out. The last time New York held impeachment proceedings for a governor was in 1913, when the state Capitol, officially declared open in 1899, still probably had that new-building smell.

Congress, of course, has had more recent experience, having twice impeached Donald Trump. And indeed, the process in New York would look very much like its counterpart on the federal level.

The initial step could involve an accusation of “high crimes and misdemeanors,” a constitutional phrase that was included in a recent resolution offered up by the Assembly’s long-suffering Republicans. The resolution also touched on the governor’s verbal attack on Assemblyman Ron Kim, a progressive Democrat who probably has very little in common with most of the Republican delegation.

If the impeachment measure passes the Assembly, it would then be up to the Senate to try Cuomo, with a jury of most Senate members and the judges from the Court of Appeals, the state’s highest court. A two-thirds majority is required to convict. (Andrea Stewart-Cousins, majority leader and one of the first major elected officials to say that Cuomo should resign, would have to abstain, per the state constitution.)

If Cuomo were to be convicted by the Senate and removed from office, Lt. Gov. Kathy Hochul would become governor, the first woman to hold the office in state history. She would also serve as acting governor during an impeachment trial in the Senate.

What About the Attorney General’s Investigation?

James’ investigation, which is already underway, is being conducted by Joon Kim, a former acting U.S. attorney for the Southern District of New York, and Anne Clark, an employment discrimination lawyer.

The investigators, who have started interviews, are looking only at sexual harassment allegations leveled against Cuomo. They have subpoena power to request records and compel witnesses, including the governor, to testify under oath.

They are also expected to issue a public report with their findings, and considering their head start on the Assembly and more limited scope, it may well preempt the Assembly’s.

James has said the Assembly’s inquiry would not affect her office’s investigation, and she has indicated that her investigation would continue even if Cuomo left office before its conclusion. And on Tuesday, Andres said it was likely that lawyers involved in both investigations would be in communication to coordinate witness interviews — potentially with current and former aides, state officials and private citizens — and avoid interfering with each other’s investigations.

If the attorney general’s report corroborates the allegations against the governor, it is unclear if lawmakers in the Assembly would move to impeach Cuomo before its own inquiry was completed.

What If the Governor Resigns?

Some in Albany have floated the idea that Cuomo might resign under immense political pressure, especially if President Joe Biden decides to intervene or if Heastie tells the governor he has the votes to impeach him.

So far, Cuomo has defiantly rejected calls for his resignation, even as most Democrats from New York’s congressional delegation, including Sens. Chuck Schumer and Kirsten Gillibrand, have turned against him. The governor has pleaded with New Yorkers to allow the investigations to play out.

In the meantime, he has sought to carry on business as usual. The governor has held numerous photo ops over the past two weeks at mass vaccination sites and has talked about the importance of reaching a deal with the Legislature on the state budget, due April 1.

Last week, however, Biden told ABC News in an interview that the governor should step down if the investigations corroborate the harassment claims.

And Now, About that Impeachment Math

In one of the state Capitol’s many peculiar traditions, the 150-seat state Assembly will generally not move any bill — let alone something as significant as an impeachment measure — without a majority of support from the ruling Democrats.

Eric Lane, a professor of political science at Hofstra University, said Albany’s tradition of moving only bills backed by a majority of the majority dates back decades. “It’s pure power politics,” Lane said. “It’s democratic in the sense that it’s a majority of the party that’s in control.”

And while the Assembly is under the microscope right now, the same procedure has often been in practice in the state Senate, where Democrats also hold a supermajority.

Back to the Numbers

To impeach the governor, in practical terms, 76 of the chamber’s 106 Democrats would have to agree. (The Assembly also has one independent, Fred Thiele, who conferences with the Democrats.)

So far, at least 40 Democrats currently think the governor should resign, according to an informal survey of members’ opinions by The New York Times.

But if you count the chamber’s 43 Republicans — most of whom have said they would favor impeaching Cuomo — there would seem to be enough support for the governor’s exit and potentially enough votes in the Assembly to impeach. The body would only need a simple majority vote in this improbable scenario.

It is far more likely that the Assembly will move at its own pace — and only with the approval of its ruling party — before casting a single vote.