Lloyd Constantine

"More of the same from Cuomo"

Governor's secrecy reflects his tenure as attorney general

The public is learning more about Gov. Andrew Cuomo's iron-fisted control of information concerning his performance in public office. This unfolding awareness began with investigative work by this newspaper. Later, other news organizations, notably The New York Times, awakened and their editorial boards became alarmed about the practice of governing without a trace in the present and seeking to redact and erase the past in an Orwellian fashion.

What hasn't been fully appreciated yet, however, is just why the governor sent two aides to redact documents from public view at the State Archives and to assert that the Times Union's reporters shouldn't have been allowed to inspect — let alone copy and publish — documents prepared by Cuomo staffers during his tenure as attorney general.

The reason these documents have been made to disappear has little to do with what was said, or the pretextual rationale that privileged and confidential information had been disclosed. This disappearing act instead has everything to do with the documents' underlying subject matter — the shamefully amateurish and inadequate investigation that Attorney General Cuomo conducted in 2007 into the so-called Troopergate scandal.

As Cuomo proceeds toward his desired manifest destiny, he wants us to forget this. And he's more than willing to help.

Troopergate — which many would like to forget, foremost my former boss, Eliot Spitzer, and the current governor as well — will continue to haunt us all. I was Spitzer's senior adviser and one of five senior lawyers conscripted to represent the governor and the Executive Chamber in the many Troopergate investigations in 2007 and 2008.

Troopergate began July 1, 2007, when this newspaper reported that then-Senate Majority Leader Joseph Bruno had been using state aircraft for travel to meetings and events whose purpose was primarily personal and political. Almost as soon as Cuomo heeded Spitzer's call to investigate Bruno, the tables turned. Cuomo was also investigating whether the governor and his aides had improperly enlisted the State Police in spying on Bruno.

In a sloppy three-week rush to judgment and race for press primacy over competing investigations being conducted by Albany County District Attorney David Soares and then-Inspector General Kris Hamann, Cuomo's Troopergate report superficially addressed the Spitzer administration's sins and ignored and whitewashed Bruno's blatant misuse of the state fleet.

On the Bruno side of Cuomo's probe, neither the majority leader, nor anyone else was questioned under oath. No documents were subpoenaed. Cuomo exonerated Bruno, concluding that if a day of private and political events included any amount of time when Bruno arguably was doing the state's work, the massively expensive use of the state's airplanes was lawful.

The omissions and superficiality of the Cuomo Troopergate probe and the resulting lack of confidence in its findings spawned eight additional Troopergate investigations by Soares, the inspector general, the Senate's Investigation Committee, the State Investigation Commission and two now-defunct state commissions for ethics and public integrity.

The reason for the whitewash was obvious. Any finding of state aircraft misuse by Bruno would have instantly evoked comparison with far more serious and pervasive patterns of misuse by both Gov. Mario Cuomo and allegedly by Andrew himself when he was secretary of housing and urban development.

"Air Cuomo" was the name given to the reports and records showing that during just four of Mario Cuomo's twelve years as governor, Cuomo family members (including Andrew) took 729 trips on the state's aircraft. After leaving office, he reimbursed the state $29,000 for a small number of these trips.

During the planning stages of Andrew Cuomo's unsuccessful bid to become governor in 2002, he flew on the federal taxpayers' tab to New York 24 times, purportedly on HUD business. During that same period, Andrew Cuomo visited no other state within his jurisdiction more than four times, not even California with twice the population and housing of New York.

Former housing secretaries living in glass houses mustn't throw stones. Andrew studiously observed that caveat in his Trooopergate probe and is now trying to bury the records of his work beyond discovery by all except future archaeologists. "Sending records to the Archives is about preservation for future generations, not access for today" stated Cuomo communications director Richard Bamberger.

Where is the current attorney general on all this?

Eric Schneiderman told WNYC reporter Brian Lehrer that he believed that there was "nothing unusual" about Cuomo's clawing back and withdrawing from scrutiny, documents previously placed in the State Archives. He went on to lower the standard for his endorsement a bit by observing "I'm not aware of anything that makes that illegal."

This is very distressing from Schneiderman, generally a smart, tough and independent guy. Before this episode, the practice was for the state's archivist to seek the assistance of the current attorney general, meaning Schneiderman, to decide whether information had been improperly placed in the archives and whether documents were exempt from disclosure under the Freedom of Information Law.

Under that procedure, the state's chief legal officer would be making legal judgments about applicable FOIL exemptions such as attorney-client and attorney work product privileges. But Schneiderman apparently thinks it's OK for those calls to be made by the governor's non-lawyer press aide, Josh Vlasto, and by the Cuomo lawyer, Linda Lacewell, who wrote one of the Troopergate memos and apparently is not happy that her Aug. 16, 2007, memo shows omissions in the July 22, 2007, Cuomo Troopergate report.

Kudos to a vigilant press for shinning a spotlight on a Cuomo "deja vu" that's reminiscent of George Orwell's 1984.

Lloyd Constantine was senior adviser to Gov. Eliot Spitzer and one of the senior attorneys who represented him in the Troopergate investigations in 2007 and 2008. His 2010 book, "Journal of the Plague Year," is about working in the Spitzer administration.

Correction: The print version of this story stated that two Cuomo aides removed documents from the State Archives. In fact, the documents were redacted from public view, but remain at the Archives.