Cuomo faces DOJ referral over nursing home COVID report statements

ALBANY (NEWS10) -- The House Select Subcommittee on the Coronavirus Pandemic has formally referred former New York Governor Andrew Cuomo to the Department of Justice, alleging that Cuomo lied about his involvement in a 2020 health department report on nursing home COVID-19 deaths. The July 6, 2020 report, which reportedly downplayed nursing home deaths by omitting residents who later died in hospitals, has led to accusations that Cuomo misrepresented his role in its drafting, review, and external feedback process.

According to the Subcommittee’s letter to the DOJ, “Mr. Cuomo made multiple criminally false statements, including that he was neither involved in the drafting nor the review of the July 6 Report.” Citing emails and internal documents, the Subcommittee asserts that Cuomo’s testimony denying such involvement was contradicted by evidence showing he directed aides to gather “peer review” support for the report. A June 30, 2020 email, dictated by Cuomo according to a former staffer, stated: “Get the Harvard guy, Dowling, and Ken Davis to be the ‘peer review’ experts of the report. Get them the draft now to study.”

The Subcommittee’s letter further emphasized that Cuomo’s testimony denying any discussions about peer review was also contradicted by documents. In response to questions about these conversations, Cuomo testified, “[n]o.” The Subcommittee argues, “A document proves Mr. Cuomo’s statement to be false.”

“This appears to be a conscious, calculated effort to insulate himself from accountability,” wrote Rep. Brad Wenstrup, the committee chairman, adding that the DOJ should consider Cuomo’s alleged prior misconduct when evaluating potential charges. The letter asserts that Cuomo’s actions “may constitute a violation of 18 U.S.C. § 1001,” the federal statute on false statements.

Cuomo’s legal team, in their own letter to the DOJ, pushed back against the Subcommittee’s claims, arguing that “nothing in House Resolution 5—or anywhere else—authorizes the Subcommittee to investigate a State’s internal regulatory advisory concerning nursing-home admissions.” His lawyers also claimed that the committee “far exceeded its jurisdiction and appears to have been an improper effort to advantage the interests of private litigants against Governor Cuomo,” pointing to Wenstrup’s communication with Fox News anchor Janice Dean as evidence of bias. Dean, whose husband Sean Newman is a plaintiff in a lawsuit against Cuomo, posted on Twitter in apparent reference to the investigation: “pay attention to what happens next … But enjoy your short-lived celebration.”

The Subcommittee’s letter defended its jurisdiction, citing that it is authorized to investigate “the efficiency, effectiveness, and transparency of the use of taxpayer funds” and “executive branch policies, deliberations, decisions, activities, and internal and external communications related to the coronavirus pandemic.” Cuomo’s lawyers, however, contended, “Nothing in the Constitution grants Congress the power to police state regulatory Agencies.”

Cuomo himself has maintained that early data on COVID-19 deaths was unreliable, stating his administration’s focus was “on releasing numbers people could trust.” The Subcommittee, however, presented internal emails indicating Cuomo’s involvement in the report’s content. Cuomo’s counsel, Sarah A. Sulkowski, accused Wenstrup of “colluding” with Dean and others to create a politically charged investigation. The referral letter, signed solely by Rep. Wenstrup without the endorsement of Democratic ranking member Rep. Raul Ruiz, hints at a partisan split.

In 2021, New York Attorney General Letitia James released a report revealing that nursing home deaths had been undercounted by about 50%, noting that state figures omitted residents who died after being transferred to hospitals. Several investigations into the handling of nursing home admissions were launched, though none led to criminal action. This new referral, enriched by staff testimony and emails, could intensify scrutiny. Farrah Kennedy, an ex-senior Cuomo aide, recently testified that she “often” transcribed Cuomo’s notes, which the Subcommittee used to assert Cuomo’s active role in shaping the report.

“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,” the referral concludes. Cuomo spokesman Rich Azzopardi countered, calling the committee’s referral “a taxpayer-funded farce” aimed at scoring “cheap political points.” He added, “The committee counsels know there is no basis for this pre-election [MAGA] exercise.”

The DOJ has not commented on whether it will pursue the Subcommittee’s request to charge Cuomo under the federal false statements statute.