There Will Be No Late Impeachment of Governor Andrew Cuomo

NY Assembly Speaker Carl Heastie says impeachment is not possible once the Governor leaves office.


New York Governor Andrew Cuomo is resigning after the state Attorney General concluded the Governor had sexually harassed multiple current and former state employees. As Governor, Cuomo also adopted Covid-19 policies that dramatically increased nursing home deaths, and then sought to cover up the administration's culpability, prompting an FBI investigation.

Had Cuomo not resigned, he might well have been impeached by the New York legislature. Now that he's leaving office before the month is out, however, the impeachment plans have been put on hold.

While some argued the impeachment process should continue, New York Assembly Speaker Carl Heastie has concluded that such a "late impeachment" is not allowed under the New York Constitution, and thus the inquiry will end on August 25, after Cuomo leaves office.

Speaker Heastie released a brief legal memo explaining the basis for this conclusion. It begins by noting the difference between the language concerning impeachment in the New York Constitution with that in the U.S. Constitution.

Unlike the language used in the United States Constitution, section 24 of Article VI of the New York State Constitution expressly states that "[j]udgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification" from future public office. Disqualification is thus expressly linked to removal, and the language does not seem to contemplate an impeachment or trial when removal from office is not the central determination. This interpretation is reinforced by the fact that, in New York State, no trial on an article of impeachment has proceeded after the official in question has resigned. Therefore, if an official resigns his or her public office at any point before conviction after trial in the Court for the Trial of Impeachments, the Court would lose its jurisdiction to rule in the matter, as it may only render a judgment that removes an official from office.

I am not an expert on New York law (far from it), but this seems like a plausible conclusion, and one that is not at all inconsistent with a belief that late impeachment is allowed under the U.S. Constitution.

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  1. Impeachment or no impeachment, I hope New York voters have exhausted their appetite for soon-to-be-former Gov. Cuomo.

    1. How about a prosecution of Cuomo for crimes against humanity, like the killing of 1000’s of NYers and the killing of millions by starvation around the world?

      1. Like you give a shit. Piss off,

    2. His days in politics are over. He has very few friends remaining and very few will vote for him. No matter how much money he has in his “war chest” he will not serve as a statewide elected official again.

  2. I’d imagine it has more to do with avoiding a messy process where Cumomo will continue to embarrass himself and the Democrats of New York. He likely won’t stand for election again, but most of them will. Better to let him sneak off.

    1. Well, that was probably the underlying motive but “removal from office, or removal from office and disqualification” seems to support the conclusion.

      Two possibly punishments, simple removal OR removal with sanction. If he is no longer in office, he can’t be removed.

  3. There’s a job waiting for him at CNN.

    1. Replacing his brother?

      1. I always assumed the idiot brother was sent to tv while the smart one inherited the family business. Now I’m not so sure who is which.

  4. What a shame.
    How about a criminal trial under NY’s ‘willful indifference’ viewing of manslaughter? 10,000 or more nursing home deaths should qualify.

    1. Give us a break. That is preposterous

      1. Jack McCoy used it every other episode for 15 years.

      2. Governor Cuomo made grossly incompetent decisions last year, and then promulgated policies based on his incompetence. So did Governor Murphy here in the People’s Republic of NJ. There were a few others. Their bad decisions, based on political science (not the biological science and stats that were available at that time from Spain and Italy), managed to kill thousands of elderly nursing home patients. The decision to force nursing homes to take Covid-19+ patients was grossly incompetent. Forty-five (yes 45) other governors managed not to make the same mistake. How is that? They weren’t incompetent.

        Gross incompetence kills. Why should these Governors not be called to account in a court of law?

        1. C_XY,
          I agree that a number of governors ignored the lessons from China, Italy and Germany that were available before the COVID explosion in the NY Metro area. One certainly can make an even sronger argument along that line about DeBlasio. That arrogance and incompetence certainly cost lives.
          Other governors made other mistakes that have also made the pandemic worse than it could have been.
          However, beyond impeachment, I see no basis for criminal charges, and I doubt the civil charges would stand. But if the NY AG want to charge him she can go for it. But I would not hold my breath waiting.

          1. Yeah, you’re probably right about that = But if the NY AG want to charge him she can go for it. But I would not hold my breath waiting.

      3. Read the statute and tell me how it can’t be made to apply.

        Virtually every decision Cuomo made, from well before the pandemic, was objectively wrong – from selling off the emergency ventilators, to demanding more vents, to demanding military hospitals and hospital ships (which were not used), to keeping the subways and trains running bringing people into close contact with spreaders, to reducing train size when traffic fell off (again, keeping people in close contact) to not cleaning the trains, to blocking the use of pharmaceuticals (where did he go to medical school?) to forcing nursing homes to take sick and recovering people (with all those military hospitals empty, don’t forget) was depraved indifference…

        1. You have to read more than that statute to make the case.
          If you can prepare the outline of a brief to send to New York/Attorney General, Letitia James. I predict that will go nowhere fast. But only her opinion counts, not mine.

        2. People in the Flint water fiasco were criminally charged, including politicians.

          But they were lowbies, not the commandantes at the top.

    2. How many years for DeSantis then?

      How many for the few hundred thousand or so which were unnecessary deaths because Trump decided to pretend that science gives a fuck about your political persuasion?

      1. Got it, another TDR victim.

      2. If you can make a case, go for it. Why wouldn’t that apply to him, too?

        Your argument works, but not in the direction you think.

        1. I’m far more curious how partisan Flight-ER-Doc is going to be. I strongly suspect that if his wish is applied across the board, that he won’t care for it anymore.

  5. History will not be kind to Pelosi…

    1. History won’t even notice you.

    2. The man who knows nothing about the past or present knows about the future

  6. I don’t care how much money he has, how much of a “fighter” he is, or how shrewd a politician he may be, there will not be enough votes in NY to elect him again. He has no friends left in politics. Best he can do is get his dumbass brother’s spot on cnn.

  7. “There Will Be No Late Impeachment of Governor Andrew Cuomo”

    What about an impearment or and implumment?

  8. The obvious difference between Cuomo and Trump is that Cuomo has a snowball’s chance in hell to win the nomination, let alone the general election next cycle. So there’s no point in impeaching him after he’s left office, unless you want to waste a lot of the legislature’s resources doing something that has no practical effect.

    With Trump, he’ll be able to coast to the nomination and run a credible general campaign after – let’s not mince words here – engaging in high treason by trying to overthrow a democratically elected government.

  9. “engaging in high treason by trying to overthrow a democratically elected government”
    then why isn’t he charged with that?

    1. Because enough of the GOP have found ways to rationalize not caring about democracy anymore.
      Either through delusion or nihilistic hatred of the libs.

      You see it around here all the time.

      1. Trump whined about why the DOJ wasn’t pursuing this or that, when he was the one who sets their general agenda, so it sounded idiotic.

        So, too, Biden is in charge and nothing about it is happening. Your complaint is in the same boat.

        1. You’re arguing that a partisan persecution of an administration is required for a President to not be idiotic?

          I want Trump investigated and then probably prosecuted, but I don’t want it to be top-down required.
          The GOP won’t go along with this, despite what I see as manifestly compelling events. And so it stalls.
          But better it be stalled than wreck the republic to save it.

          1. S_0,
            How can it not be top down?
            Either Garland decides to prosecute to he charge at least one US Attorney to go to it.
            It is the same story with Jan. if it was a failed coup attempy, let’s see Mr Trump prosecuted for treason. But get detainees out of solitary confinement.

            1. Congress. Or an independent DoJ. Or statehouses.

              Lots of ways.

              I agree with you about the detainees – but the problem is with the system generally, not any kind of partisan targeting. The solution is reform, not specific exception due to media attention.

              1. I don’t see how you named anything that is not top-down except fro state AGs (not statehouses). Senators and representatives (federal or state) are the worst kind of top down. Elected representatives can never resist showboating. Besides, they cannot bring criminal charges.
                I don’t see how state AGs could prosecute for treason. I do expect that they might find state charges and deliver the death of a thousand cuts.
                So I’ll go back to my original question. Why doesn’t Garland get off his ass and launch a bona fide criminal investigation unless he has contrary instructions from Biden?

                As for solitary confinement and denying bail for misdemeanors, that is actually corruption, reform is never fast enough. I am not opposed to reform, but for anyone caught in the present system that is not the answer.

                1. I was specifically talking about Presidents targeting past Presidents. Congress has the imprimatur of being a group.

                  State AG’s can’t try for treason, but they can investigate. It’d be the rare treason that did not include other illegalities.

                  As for Garland. The AG has the imprimatur of being an independent agent, if he’s operating as he should. But it doesn’t take apolitical genius to see how such an act would be perceived. And treated by the nihilistic populist wing that currently owns the GOP.

                  It’s like why a prosecutor oftentimes doesn’t follow up after a mistrial. Not because the defendant wasn’t guilty, but because it isn’t worth the squeeze.

                  1. I’d be happy if the state AG conducted bona fide investigation for breaking state laws.
                    A Congressional investigation would not be a prosecution, and in fact could only be highly divisive. Seeing what gets posted here I don’t think that is hard to imagine.
                    I go back to the one person whose DOJ can investigate and prosecute and can do the investigation without that becoming the circus that you and I know that the GOP defenders of Trump would make it to be.

      2. The GOP has nothing to do with it. You’re giving the Biden Administration a weak excuse.

        Mr Garland is the AG. He has full authority and power to move forward with a robust investigation and prosecution unless Mr Biden instructs him not to do it

      3. Yea treason, sedition, insurrection are just media terms to hype J6. The actual folks are being charged with trespassing and interrupting a congressional process. Same thing the Kavanaugh protesters did but it’s so much worse because “Trump”.

        1. “The actual folks are being charged with trespassing and interrupting a congressional process.”
          I’ll take your word that the charges are as you say.
          If so, the present prosecutions do not support a charge of treason against Trump. However, I tend to be of the school, “where there is smoke, there’s fire.”
          Right now we have a show investigation in the House. But where is the real prosecution?

  10. So the same as the US Constitution then

  11. Well, I’ve never closely studied the New York Constitution either, but the odd thing here is that the language that the Speaker cites was revised in the 1846 Constitution, while the 1777 original and the first revision in 1821 both used language similar to the Federal Constitution, which at least conceivably allows post-term proceedings. So if, as the Speaker suggests, this juridictional outer bound on the judgments of the court of impeachment is what limits its powers of jurisdiction over specific people (rather than simply being a short list of the most severe punishments), this huge amendment of its personal jurisdiction happened by secondary implication.

    In other words, prior to 1846, New Yorkers were limited to “apple pie and ice cream”; after 1846, they changed the wording so that they could have “apple pie or apple pie and ice cream.” And now, reasoning from that, the opinon memo contends that dessert in New York must always contain apples.

    The 1846 convention could certainly have changed the jurisdictional language to make this change, but they didn’t. So either (1) people in the late 18th/early 19th century understood the “and” in the earlier version as conjunctive; or (2) the 1846 change was simply an addition of an alternative version of the most severe, outer-bound judgment that the court of impeachment could make under the rules.

    Fundamentally, it just seems odd to revise a consititutional clause by making a change in an adjacent sentence that gives the existing clause a new grammatical structure. And then to take this existing language that has been grammatically transformed and reason its entailments on completely separate areas of the texts seems a bridge or two too far.

    (There’s a journal of the 1864 proceedings that might illuminate things, but it’s not online.)

    Mr. D.

    1. You’ve studied it closely enough to express an opinion with a more solid foundation than that of Mr. Adler. It surprising that he would buy the existence of a legally-significant distinction between “removal and disqualification” and “removal or removal and disqualification” that Speaker Heastie’s legal minions ludicrously posit in their Memorandum of Law.

      Nevertheless, those minions cite the absence of an example of removal and disqualification of a FEDERAL official after resignation. So, federal cases constitute precedent (or absence of precedent) for proceedings under the state constitution after all! This they suggest although they do not even attempt to explain away the federal case they themselves cite of an official who was ACQUITTED after resignation. Did it not occur to them that a post-resignation acquittal necessarily implied a post-resignation trial?

      Having served as a judge’s clerk, I know how difficult it can be to draft a decision that supports a pre-ordained conclusion. But with sufficient time and effort, I’m confident that I could have done a better job than theirs.

    2. * It’s surprising

  12. He’ll be back …….

  13. So Trump’s second impeachment was??

    Yea, its laughable

    1. Think the word you’re looking for is “distinguishable.” (For the reason that Jonathan Adler gives. Goodness knows I don’t agree with the guy all the time, but he’s not an idiot.)

  14. Seems right to me. If a restaurant offers pie with a choice of “apples or apples and cherries,” you’re not going to get very far ordering a just-cherry pie. If a restaurant offers “pies with apples or cherries,” you can have all the cherry pie you like.

    Incidentally, the allegations against Cuomo hardly seem the stuff of disqualification, even if disqualification alone were a remedy in New York.

    1. Right, but the difference is that jurisdiction is a secondary implication — you have to reason the entailments, and decide that when they changed the menu from offering “apples and cherries” as options to offering “apples or apples and cherries,” they meant to exclude any people who prefer cherries from even ordering an hors ‘doeuvre, as they wouldn’t eventually get their just dessert.

      In a plain language sense, there’s no doubt that the court of impeachment can impose no punishments stronger than the ones outlined; the question is whether the rephrased constitution that contained this binding text either (1) sufficiently signaled an amendment of personal jurisdiction by implication; or (2) made an exercise of personal jurisdiction over former office-holders logically impossible (which reading it as an “outer bound” seems to avoid).

      Or, perhaps, in the late 18th c., the phrasing of the Federal Consitution and the 1777 & 1821 NY Constitution was always read as a conjunctive “and.” Pace recent events.

      Mr. D.

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