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Federal Prosecutors Opened Criminal Investigation After Cuomo Aide Admitted Withholding Nursing Home Death Data from State Legislators: Report

NEW YORK, NEW YORK - SEPTEMBER 08: New York state Gov. Andrew Cuomo speaks at a news conference on September 08, 2020 in New York City. Cuomo, though easing restrictions on casinos and malls throughout the state, has declined to do so for indoor dining in restaurants in New York City despite pressure from business owners, citing struggles by the city to enforce the state's previous orders.

Federal prosecutors in the Eastern District of New York opened a criminal investigation after a top aide of Gov. Andrew Cuomo (D) admitted on a phone call last week that the Cuomo administration withheld nursing home death data from state legislators, the New York Law Journal reported on Thursday.

The report, citing only a “source with knowledge of the matter,” said the criminal investigation was opened after Secretary to the Governor Melissa DeRosa said on a Feb. 10 call that the Cuomo administration withheld data from state lawmakers, fearing that the data was “going to be used against us” amid the DOJ civil investigation launched by the Trump administration. The New York Post was first to report the call.

“Basically, we froze because then we were in a position where we weren’t sure if what we were going to give to the Department of Justice or what we give to you guys and what we start saying was going to be used against us and we weren’t sure if there was going to be an investigation,” DeRosa said on the call.

In a subsequent statement, DeRosa said she was “explaining that when we received the DOJ inquiry, we needed to temporarily set aside the Legislature’s request to deal with the federal request first.”

The Trump administration’s Department of Justice first demanded data from Cuomo’s administration and states run by three other Democratic governors back in Aug. 2020. By Oct. 2020, DOJ expanded an investigation into whether New York undercounted COVID-19 deaths in nursing homes.

Then, in recent weeks, New York Attorney General Letitia James (D) released a report relaying preliminary findings that “a larger number of nursing home residents died from COVID-19 than the New York State Department of Health’s (DOH) published nursing home data reflected and may have been undercounted by as much as 50 percent.” AG James’ report also raised questions about Cuomo’s March 25, 2020 order on practices for admitting or readmitting patients to nursing homes after confirmed or suspected COVID-19 diagnoses.

After the pressure ratcheted up, Gov. Cuomo addressed media reporting publicly at a news conference on Monday.

He said that a “void” was created by his own administration’s failure to provide information in a timely manner, allowing  “conspiracy theories” and “disinformation” to fill the void and create a narrative.

“The truth is,” said Cuomo, “Everyone did what they could.”

“People still die in nursing homes. Today,” he said.

“In retrospect, should we have given more priority to fulfilling information requests? In my opinion, yes,” he added.

Cuomo asserted at one point that “there is nothing to investigate.”

It seems federal prosecutors disagree.

On Wednesday night, the Times Union first reported that the FBI and U.S. Attorney’s Office in Brooklyn were investigating. It was not immediately clear if this was related to the already existing DOJ civil rights investigation or a separate matter.

Cuomo spokesman Richard Azzopardi treated it as business as usual and consistent with what has been going on for months.

“As we publicly said, DOJ has been looking into this for months. We have been cooperating with them and we will continue to,” Azzopardi told the Times Union.

The New York Times addressed the Times Union report on Thursday by saying that the “inquiry by the F.B.I. and Brooklyn prosecutors […] does not appear to be related to the Trump Justice Department’s investigation, which was being conducted by its civil rights division.”

Now the New York Law Journal’s Jane Wester reports that acting U.S. Attorney Seth DuCharme’s office opened a criminal probe into “Gov. Andrew Cuomo’s coronavirus task force and its handling of COVID-19 in nursing homes” only after news of the DeRosa call went public.

On Wednesday, Gov. Cuomo lashed out at New York Assemblyman Ron Kim, a Queens Democrat who had accused Cuomo of lying to state lawmakers and the public as part of a “coverup.” Cuomo, reportedly following through on a threat to “destroy” Kim, accused Kim of engaging in “unethical, if not illegal” conduct as part of a “pay-to-play scheme” involving nail salon-related legislation.

Kim responded by drawing attention back to Cuomo’s March 25, 2020 executive order and the New York Attorney General’s report.

“This administration was grossly under-reporting nursing home deaths by as much as 50 percent and withholding information about the situation to federal and state officials — as move that benefited the same healthcare donors helping his campaign over the years,” Kim said. “As legislators we have a duty to uncover the truth behind the nursing home deaths and the governor’s explanations do not add up. While he claims he was taking time to answer the Justice Department, we saw him gallivant around on a book tour and victory lap across prime time cable shows. Again, all while his top aide deliberately hid the information in fear of political and legal consequences.”

Law&Crime left a message with the Public Information Office of the U.S. Attorney’s Office for the Eastern District of New York seeking confirmation that a criminal investigation was opened. We have not received a response, but a spokesman for the office neither confirmed nor denied the existence of the probe when asked by the Law Journal. Law&Crime also reached out by email to EDNY USAO spokesman John Marzulli asking if he could confirm Wester’s reporting. He had no comment.

Law&Crime reached out to the governor’s office by email for comment. We’ll update this report if we receive a response.

The latest report comes after U.S. Senate Republicans called for a criminal investigation and as New York State Senate Democrats gun for Cuomo’s emergency powers.

New York State Republicans are on Cuomo’s case as well.

[Image via Spencer Platt/Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.