Official Misconduct (Continued)
Attorney General Andrew Cuomo gets lots of kudos for the way his office put together the facts in his report last week on the Bruno-Spitzer fiasco. But his conclusion that Gov. Eliot Spitzer’s office engaged in no “unlawful” conduct is raising a few questions.
The problem: They reached that conclusion while two top Spitzer aides — Secretary Rich Baum and now-suspended communications director Darren Dopp -- refused to be interviewed. They reached it while accusing another key player, homeland security aide William Howard, of lying to them. They didn’t put Spitzer himself under oath.
One prominent law professor, NYU criminal-law expert Stephen Gillers, believes Spitzer aides may in fact have violated New York’s “Official Misconduct” statute, a misdemeanor. It prohibits a public servant from knowingly engaging in an “unauthorized exercise of his official functions” with intent to obtain a benefit, including financial or political advantage.
If Dopp and Howard lied to the state police about a freedom of information request to get them to compile data on Bruno, as Cuomo’s report found, it could apply, says Gillers: “I think it’s a pretty close fit.”
Cuomo's office won't respond publicly, but not all legal experts are so enthused. Former Manhattan prosecutor Daniel Horwitz says New York doesn't have a law that explicitly makes it a crime to lie to the state police superintendent, and the official misconduct law is typically directed at a more concrete personal benefit than the discrediting of Joe Bruno.
"I just don't see it," Horwitz says. "...To try to fit a square peg in a round hole here would be inappropriate."
John Riley
Another expert, Eric Lane of Hofstra law school, said that if, for example, Spitzer ordered his aides to lie to the police to get them to create documents that would hurt Bruno, it might technically make up official misconduct.
But Lane’s still not sure there’s enough of a tie between the aides and the benefit to prove the crime, and his gut tells him that Cuomo was right to leave it to politics, not prosecution. “I just don’t think this is what the criminal statutes are for,” Lane said
Lurking in the background: Questions about the process used by Cuomo's office. He didn't have subpoena power. When Baum and Dopp refused to talk, he didn't ask Spitzer to make them and didn't ask the state Inspector General -- who was running a parallel investigation -- to subpoena them. And the office has given no sign that it intends to pursue sanctions against those that, the report indicates, may have lied.
In another recent case, CIA leak prosecutor Pat Fitzgerald refused to reach a conclusion about whether any underlying crime was committed while some people were refusing to talk and others were, he believed, lying. That, argues Gillers, is the more standard practice.
"Any law enforcement agency is not going to come to a conclusion without gathering all the facts," he says. "The failure to do that is not good prosecutorial practice."
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Comments (1)
A new deifinition of "crime" has emerged from the Attorney GEneral's office and the governors's office in recent days .
Some excerpts from the Cuomo report did little to help New Yorkers decide what the statutes are these days.
Page 23: "The head of the State Police (Felton) and the governor's liasion (Howard), who is also a high- ranking official of the Homeland Security department, DID NOT adhere to the policy of protecting the security of state officials."
So these state officials could have been killed and the people who put their lives at risk are still on the payroll?
page 29- "Notably, Howard and Felton gave differing accounts of their respective roles in the production of the documents at issue."
Really? under oath? If there is independent corrobaration or documents, emails and phones messages, can't Cuomo figure out who is committing perjury?
page 38- "Howard testified "that in twelve years or thirteeen years of doing business I have never heard about a request (for ground transportation) in advance of any request coming in. It was always after the fact I would have learned about it."
But the Cuomo report then says: "But in fact Howard did know about several trips in advance, as the e-mails disucssed ealrier in this report reflect."
No perjury here?
page 40- the best of all: "Howard abused the resources of the State Police."
No crime there? really? Would exemption apply to a trooper who got caught using a state police car to go Christmas shopping? What would happen to him for 'abusing the resources" of the state police?
This sounds like McGreevey's Homeland Security paramour. So where was Howard re-assigned? To Motor Vehicles? To keeping the New York State Air Force nice and shiny in casse we get attacked again by Al Queda?
Which raises an even more interesting question: how many of these planes and choppers do we own anyway?
Who can fly in them?
What do they cost to buy and maintain?
Will there be there congestion pricing when politicians use them?
Can't the governor -like his New Jersey counterpart- ride the Thruway? (at the legal speed of course and with his seat belt on).
Why does Joe Bruno need a helicopter to get to New York City which is under three hours on a train?
Can't Bruno afford his own helicopter, or share one with Shelley Silver?
Finally, we are entitled to know exactly where Mr. Howard was "re-assigned," so we can warn our friends what to expect. Is he in hiding? Who are his political rabbis in the labor movement who got Spitzer to keep him on the job after Pataki left office?