A US House committee will refer former New York Gov. Andrew Cuomo to the Department of Justice for making “criminally false statements” about a state audit that undercounted nursing home deaths during the COVID-19 pandemic, The Post has learned.
The House Select Subcommittee on the Coronavirus Pandemic is accusing Cuomo of falsely saying that he was not involved in prompting, drafting or reviewing the July 6, 2020, report, which low-balled the state’s total nursing home COVID death count by 46%, according to a draft of the criminal referral to Attorney General Merrick Garland.
In a tit-for-tat legal exchange, Cuomo filed his own criminal referral against the subcommittee on Wednesday, alleging that it was acting “in violation of the principles of federalism.”
“This interrogation far exceeded the Subcommittee’s jurisdiction and appears to have been an improper effort to advantage the interests of private litigants against Governor Cuomo, warranting investigation by the Department of Justice,” reads a letter also sent by the ex-gov’s attorneys to Garland.
It noted that nowhere in the House resolution authorizing the subcommittee’s COVID investigation was there a mandate “to investigate a State’s internal regulatory advisory concerning nursing-home admissions.”
Cuomo’s legal team also accused subcommittee Chairman Brad Wenstrup (R-Ohio) of “colluding” with Fox News weather anchor Janice Dean, “whose husband, Sean Newman, is a named plaintiff in a private lawsuit seeking damages from Governor Cuomo and others based on allegations regarding the March 25, 2020 nursing-home advisory.”
Wenstrup (R-Ohio) had been interviewed by the weatherwoman twice on her own podcast to discuss the nursing home debacle and appeared at Cuomo’s Sept. 10 grilling before the subcommittee on Capitol Hill.
“Pay attention to what happens next. Not over by a long shot,” Dean posted on X in a message aimed at Cuomo Oct. 1, the day after her husband’s lawsuit was thrown out by a judge. “But enjoy your short lived celebration. Hope you get your money back.”
Asked whether he drafted, reviewed, discussed or looped in people outside of his administration to “peer-review” the death count report, Cuomo told the House panel during a June 11 transcribed interview that he had not.
“I did not. Maybe it was in the inbox, but I did not,” Cuomo said during his transcribed interview when asked whether he reviewed a draft of the report.
Cuomo subsequently added that he did not “recall” reviewing or seeing the July 2020 nursing home report before its release.
But subcommittee staff, in the 104-page referral, presented emails of aides discussing his involvement in editing and reviewing the report.
Drafts of the report containing what House investigators called the ex-governor’s own chicken scratch were also included in the referral.
Cuomo revoked the disastrous March 25, 2020, directive that ordered COVID patients into senior care facilities — without testing — on May 10 of that year, after thousands of New Yorkers had been either admitted or readmitted into nursing homes.
His apparent notes included in the subcommittee’s referral deflect responsibility for the mandate itself, with one claiming that his administration only learned in May that “asymptomatic people could infect others. However, by that point the disease was already in the nursing homes.”
The Centers for Disease Control and Prevention (CDC) acknowledged the risk of asymptomatic spread six days earlier, though news outlets had been reporting on the phenomenon since early April.
In one draft page, Cuomo allegedly changed the phrase “neither CDC guidance nor the state directive mandated” to “neither CDC guidance nor the state directed.”
Another purported gubernatorial note crosses out the word “death” and replaces it with the approximate timeline it took for infections to become fatalities.
Cuomo also directed staff to have neighboring states’ nursing home death tallies “compared to New York” using the deflated death count of fatalities inside of nursing homes alone.
“New York is 6,600?” he wrote in the margins of a draft page — but more than 9,000 perished when factoring in those who were in hospitals. The final report listed 6,432.
Farrah Kennedy, an ex-senior Cuomo staffer, said in a transcribed interview with the House COVID panel earlier this month that she recognized Cuomo’s handwriting and “often” had to decipher and transcribe it.
Ex-Cuomo aides Melissa DeRosa and Jim Malatras and New York Department of Financial Services deputy superintendent Gareth Rhodes had earlier told the subcommittee in interviews that a June 7, 2020, email chain worrying about the death count becoming a “great debacle in the history books,” was likely authored by the then-governor through his secretary Stephanie Benton.
Other emails disclosed by the committee also show a member of the Executive Chamber staff wrote in a June 28, 2020, email chain that “the Governor handed over edits to the version you asked me to give to him.”
“Upon closer inspection they aren’t edits I can make,” another staff member responded. “Attached are the governor’s edits.”
New emails disclosed by the subcommittee reveal that Cuomo’s office sought guidance from Northwell Health CEO Michael Dowling and Kenneth Raske, president and CEO of the Greater New York Hospital Association.
“Get the Harvard guy[,] dowling[,] and ken Davis [sic] to be the ‘peer review’ experts of the report. Get them the draft now to study,” read a June 30, 2020, email written by Benton but dictated by Cuomo, according to a former staffer.
“Ken Raske’s staff and mine can do a complete rewrite [of the Executive Summary] if you wish,” Dowling replied in an email two days later.
“Documents prove Mr. Cuomo’s testimony to be false,” Wenstrup wrote in a signed cover letter, also obtained by The Post, set to accompanying the criminal referral.
The subcommittee in September slapped Cuomo’s successor as governor, Kathy Hochul with a subpoena to hand over the relevant documents — but a whistleblower ended up providing them instead.
An impeachment report cited in the referral and prepared by the New York State Assembly Judiciary Committee also found evidence that Cuomo prompted, reviewed and edited drafts of the report to “combat criticism” and defend his nursing home order.
“Mr. Cuomo has no valid legal defense,” the subcommittee’s criminal referral concludes. “Mr. Cuomo did not recant or correct his false statements during his June 11 transcribed interview, despite being given the opportunity to do so, or during the Select Subcommittee’s September 10 hearing.”
“The facts, evidence, and precedent suggest DOJ should proceed with criminal charges against Mr. Cuomo pursuant to 18 U.S.C. § 1001 for false statements,” it closes.
“This is a taxpayer-funded farce and an illegal use of Congress’ investigative authority,” shot back Cuomo spokesman Rich Azzopardi in a statement. “The committee counsels … know there is no basis for this pre-election [MAGA] exercise and affirmatively chose to act unethically in order to help their masters score cheap political points. We look forward to Rep. [Elise] Stefanik and [Nicole] Malliotakis and the committee counsels having to answer for their conduct before the DoJ.”
Trump ally Roger Stone was the most recent figure prosecuted under the same federal statute, for making false statements to the House Intelligence Committee as part of its probe into links between the former president’s 2016 campaign and Russia.