If Democrats choose to pursue it, process would be mired in procedural questions
With many Democratic legislators demanding the resignation of Gov. Andrew M. Cuomo, Republicans on Monday called for impeachment proceedings to begin immediately.
“It’s been one bombshell after another,” said state Assembly Minority Leader William Barclay of the overlapping scandals that have engulfed Cuomo’s administration, including allegations of sexual harassment and a hostile management style as well as the cover-up of the COVID-19 death count of nursing home residents.
Barclay and other Republican members of the state Assembly gathered at the state Capitol to say they will be pushing a resolution to initiate Cuomo's impeachment, and are urging their Democratic colleagues to support it. The Republicans can't force a vote on the issue without majority support, so it will ultimately be up to the Democrats whether it moves forward.
“If they really believe in resignation, why not start the impeachment process?” he said. “We think now is the time to
act.”
The calls for Cuomo’s resignation have been bipartisan. Senate Majority Leader Andrea Stewart-cousins said Sunday that the governor should step down, and Assembly Speaker Carl E. Heastie questioned the governor's ability to be an effective leader under the weight of multiple scandals. Nearly three dozen Democratic legislators in the Assembly and Senate support impeachment or resignation, Barclay said. Impeachment would require a significant number of Democratic votes in the Assembly, and removal would require 42 votes in the Senate.
It’s unclear whether the Democratic calls for resignation contain an implicit threat of impeachment if Cuomo decides to hold on.
Assemblywoman Patricia Fahy, D-albany, was one of 21 women in the chamber who signed onto a statement seeking a thorough and independent investigation into the allegations of misconduct by the governor, and expressing support for Attorney General Letitia James’ handling the investigation.
“We believe the attorney general will exercise due process and expediency in her deliberations. We continue to support our attorney general, the first woman, and the first African American woman to be elected to this position, as she launches this investigation,” the members wrote. “We request that she be allowed the appropriate time to complete her investigation rather than undermine her role and responsibility as the chief law enforcement officer of the state of New York.”
Fahy said whether Cuomo can effectively govern as scandals mount in his administration is a “good question,” agreeing with Heastie's statement. “I think it’s growing more and more difficult,” she said. But the Legislature remains focused on doing the people’s work, Fahy added.
Assemblyman John Mcdonald, D-cohoes, said he believes state government will continue to function normally despite the governor's woes.
“This governor — and I’m neither friend nor foe — is that hard-charging that I do believe even he can work through something like this,” Mcdonald said.
The assemblyman pointed out that the legislative bodies continue to focus on the work that New Yorkers elected them to do.
“I know there are a lot of detractors out there that hope he is distracted and does fail, and to that I say shame on all of us,” Mcdonald said. “It’s about the people of the state of New York, and that’s where our focus should be and needs to be a priority, whether you like him or not.”
There’s little precedent for a full impeachment process playing out in New York for a statewide elected official accused of misconduct.
Gov. William Sulzer remains the only New York state executive to be impeached. He was booted from office in 1913 after facing charges of misuse of campaign funds for personal gain; historians argue that the real reason for his fall was Sulzer's break with his former patrons in the Tammany Hall political machine.
With very minimal case law on the matter, there are many unanswered and complex legal and procedural questions regarding how impeachment works in the state, said James A. Gardner, a professor of law and political science at the state University at Buffalo.
“On the other hand, there’s a certain sort of standard framework for thinking of impeachment in the American constitutional tradition,” he said. “The presumption would be that it’s not necessary to show a violation of some express criminal law,” but merely “willful and corrupt misconduct.”
It will take a majority vote to advance an impeachment through the Assembly, which is procedurally equivalent to an indictment of a federal crime: It’s not a finding of guilt, but a finding that there’s enough reason to hold a trial. That part of the process mirrors the way a presidential impeachment works, but it begins to substantially differ at the trial stage in the Senate.
While a a two-thirds vote is required to convict — as in the federal process — the “jury” in New York would be made up of not just the Senate, but also the seven members of the state Court of Appeals, all of whom were appointed by Cuomo.
Some political observers, including Barclay on Monday, have said that Lt. Gov. Kathy Hochul would become acting governor during any impeachment trial. That understanding is based on the precedent set during the Sulzer impeachment, said Timothy Kneeland, a history and politics professor at Nazareth College.
Barclay said one reason to proceed quickly with impeachment would be to move Hochul into the acting governor spot so the Legislature could negotiate the state budget with her before the April 1 start of the new fiscal year.
But Gardner said his reading of the law doesn’t indicate that it's a requirement for the governor to step aside. He said the law holds that only judges who are facing impeachment trials must step aside, not the governor. That exemplifies the opacity of the process, and Cuomo — well known for his aggressive style — would surely fight back against any effort to sideline him.
Impeachment has historically been used in New York more as a threat to provide leverage to force resignation, Kneeland said. That also happened with President Richard Nixon at the federal level in 1974, an exit Barclay alluded to in his Monday press conference.
Former Gov. Eliot Spitzer resigned his post before impeachment proceedings could begin against him for a prostitution scandal, as did former state Attorney General Eric T. Schneiderman after he was accused of domestic violence.
The Associated Press reported Sunday that Cuomo called Stewartcousins that day and told her that the Legislature would have to impeach him to get him out of office.
Spokespeople for Democratic leadership in the Assembly and Senate did not immediately respond to requests for comment.
“I wasn’t elected by politicians; I was elected by the people of the state of New York. I’m not going to resign,” Cuomo said Sunday.