Technically, Cuomo already tried to undermine the Attorney General’s investigation into mounting claims of harassment when he first tried to keep the probe entirely under the auspices of his office, and then when he tried to force the AG to cede her authority to a joint investigation co-headed by his longtime political ally. AG Tish James rebuffed both of those efforts. Now, Debra Katz, who represents one of the accusers, has written James alleging a new Cuomo effort to interfere with the investigation.
The lawyer, Debra Katz, in a letter to Attorney General Letitia James objected to a report that Cuomo’s office has provided “in-house attorneys” to staff members to meet with them before they are questioned by James’ investigators.
“It is my understanding that these attorneys are also ‘debriefing’ staffers after their interviews with investigators,” wrote Katz, who represents former Cuomo staffer Charlotte Bennett.
This allegation, on its own, doesn’t seem problematic. However, Katz seems skeptical that these lawyers are being entirely upfront in telling employees that they should be getting their own lawyers if they have any concerns about information going right back to their bosses and that the whole process is designed to stamp out potential whistleblowing.
Katz said that the decision to provide attorneys to staffers and accompany them to interviews “will have a chilling effect on potential witnesses or other accusers” who want to cooperate with the probe, but who “fear job-related retaliation if they tell the investigators about the Governor’s sexual harassing behavior and misconduct of those around him.”
Katz wrote that she has spoken to witnesses who fear retaliation if they refuse to cooperate with Cuomo’s lawyers. They also feel constrained with what they can share with James’ investigator with those attorneys present, she said.
“We believe this offer of counsel constitutes a deliberate attempt by the Governor to interfere with your office’s investigation,” Katz wrote.
It’s a conundrum baked into investigations generally. Rank-and-file employees want lawyers, but the only lawyers they can afford are the free ones provided by the target. In an ideal world, the entity would pay for everyone to have their own lawyer, but when that doesn’t happen for whatever reason, we’re left with the uncomfortable situation where witnesses only hear legal advice from lawyers who owe ultimate loyalty to the bosses. I personally represented individual employee witnesses in a federal probe of a NY state agency while the agency and the various higher-ups all had separate counsel so there’s definitely precedent for the state going this route.
Katz is asking the AG to direct the governor to stop providing lawyers to witnesses. It boils down to avoiding even the appearance of impropriety. Just hire another firm to represent the employee witnesses that doesn’t have any obligation to report to the governor’s office. And Cuomo’s attorneys can absolutely ask to be debriefed, and the independent counsel for the employees can make the decision about what, if anything, the governor’s attorneys will get.
That is, if there’s even an interest in avoiding the appearance of impropriety at this point.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.