In their own words

The damming report from New York’s attorney general on sexual harassment charges against Gov. Cuomo refers many times to the transcripts of the 41 people questioned under oath, a subset of the 179 witnesses interviewed in the probe. However, due to a likely unconstitutional aspect of the unusual New York State statute used in the investigation, Executive Law § 63(8), all of those 179 people are barred, under criminal penalty, from disclosing their own testimony. This isn’t right and must not stand.

The blanket prohibition on disclosure of their own words would cover the complainants, Cuomo himself and anyone else who answered deputized investigators Joon Kim and Anne Clark. Of course, several of the women have chosen to speak publicly in the press and no one has sought misdemeanor charges, nor should they. But the law is still on the books and it is counter to our traditions, if not the U.S. Constitution.

Here is the language of the section: “any person examined as a witness upon such inquiry who shall disclose to any person other than the governor or the attorney-general the name of any witness examined or any information obtained upon such inquiry, except as directed by the governor or the attorney-general, shall be guilty of a misdemeanor.”

Compare that to the law for grand jury secrecy, which makes it a felony for any disclosure by a grand juror, a prosecutor, a stenographer, a police officer or “a clerk, attendant, warden or other public servant.” The crucially important exception in this law is “nothing contained herein shall prohibit a witness from disclosing his own testimony.”

Since the probe is over, all 179 witnesses should feel free to speak without threat of prosecution. But they still should have had that right from the first moment. It was Cuomo who authorized Tish James to conduct the probe under this statute, and she will rightly be releasing the transcripts. But potential criminalization of speech by a witness is a very worrisome provision. Strike it from the law.