Whatever else he did, Cuomo did not obstruct justice by ranting to Obama White House

New York Gov. Andrew Cuomo has resigned, an outcome that seems stunning given the governor’s makeup, but that a scandal-surge had rendered inevitable. 

That development overwhelmed what had been the “Cuomo news of the day”: a report by the New Yorker’s Ronan Farrow that, in 2014, Cuomo railed at top Obama White House aide Valerie Jarrett over a criminal investigation of Cuomo’s administration by federal prosecutors in the Southern District of New York (SDNY) — then led by U.S. Attorney Preet Bharara, an Obama appointee. 

Naturally, some of the same people who ardently defended former President Trump over his railing at then-Attorney General Jeff Sessions in an effort to derail special counsel Robert Mueller’s Russia investigation were quick to deride Cuomo. 

With the governor’s resignation, the impeachment process will shut down, so we’ll never know whether the new revelation would have made a difference. Still, it is worth pointing out that it was not obstruction of justice when Trump pressured prosecutors, nor was it obstruction of justice when Cuomo did it. It was an abuse of power in both instances, worthy of impeachment consideration, but not a penal offense. 

It is theoretically possible, of course, for a state governor to criminally obstruct a federal investigation. It is not actionable obstruction, however, to appeal to a prosecutor’s superior that an investigation lacks merit and should be shut down. 

That the appeal is made in an obnoxious way, and that we can infer it is more a political pressure tactic than an effort to persuade on the merits, is beside the point. To be blunt, Cuomo and Trump are notorious bullies; that said, there is no accusation that they tried to bribe anyone or tamper with evidence. 

In evaluating the question whether Cuomo obstructed an investigation, let’s consider a U.S. attorney’s office — such as the SDNY, where I worked for many years. It is commonplace in prosecutors’ offices for people who are under investigation, especially influential people, to complain to office supervisors about the fact of the probe or the way it is being handled by the assigned government attorneys.

As a line prosecutor and later as a supervisor, many times I had the experience of investigative subjects complaining about me, or complaining to me about my subordinates. Those discussions often got heated. It’s the nature of the beast — it doesn’t make the complaints illegal. 

Is it often the case that the high-profile subject is trying to intimidate the prosecutor? Sure, and sometimes — though rarely — it works. Recall, for example, the now-infamous case of the late Jeffrey Epstein, who was given a sweetheart deal by Florida federal and state prosecutors, despite mountainous evidence that he sexually abused young girls. It is infuriating when a strong case collapses because supervisors wilt under pressure and undermine the line prosecutors. But that doesn’t make the pressure criminal obstruction. 

Now, let’s widen the lens. In our constitutional system, the president is the chief executive. The  attorney general is a subordinate of the president, as are the district U.S. attorneys. In principle, Cuomo’s complaining to the Obama White House about U.S. Attorney Bharara’s corruption investigation of Cuomo’s administration would be no different from, say, Cuomo’s complaining to Bharara about how the latter’s SDNY underlings were conducting that investigation. It’s brass-knuckles aggressiveness (Cuomo’s modus operandi), but it’s not obstruction of justice.

A common progressive argument to the contrary rests on a flawed premise — namely, that law enforcement is to be regarded as fully insulated from politics, as if it were a fourth branch of government, independent, unelected and unaccountable to the public. Hence, the argument goes, any appeal to the president and his staffers to shut down or otherwise intervene in a Justice Department investigation is a corrupt demand that politics intrude on law enforcement, tantamount to criminal obstruction. 

That is not how our system works. Nor, I submit, would any of us actually like to live in a system in which the law enforcement power was not politically accountable to the people on whom it is exercised. There is a rich history of life under such arrangements, and it is not a pleasant one. 

In our system, prosecutors are politically accountable to us because they are subordinates of the president. In fact, though we understandably think of prosecutors as powerful, it is not their own power that they wield. The Constitution vests all executive power, which includes the federal government’s law enforcement power, in the president. The attorney general and the U.S. attorneys are delegates — they exercise the president’s power and can be removed at the president’s pleasure.

We operate under a “prudential norm” that politics should not interfere in day-to-day law enforcement. It is up to the president and his top appointees, including the attorney general, to set enforcement priorities, but we do not want politics to influence individual investigative or charging decisions — i.e., who gets prosecuted. 

That said, a prudential norm is not a legal requirement. Constitutionally, there was nothing illegal about Trump’s pressuring the Justice Department to fire special counsel Mueller (something the president could have done himself). And similarly, there was nothing illegal about Cuomo asking President Obama (through Ms. Jarrett) to rein in U.S. Attorney Bharara.

Now, to be clear, there are many actions that constitute an abuse of power that are not penal law offenses. The ultimate remedy in our system for the abuse of executive power, whether at the federal or the state level, is impeachment, not criminal prosecution. If it were otherwise, as the Constitution’s Framers’ understood, many instances of misconduct egregious enough to warrant removal would evade impeachment because they are not necessarily indictable crimes. 

Consequently, when the House weighed impeaching Trump, it considered the pressure he exerted on underlings to shut down Mueller’s probe. Even though the House — correctly, in my view — chose not to impeach Trump for trying to derail Mueller (it impeached him, twice, on other grounds), its weighing whether to do so was a proper exercise of congressional power. 

Analogously, it also would have been proper for the New York State Assembly to weigh Cuomo’s effort to bully the Obama White House into shutting down Bharara’s probe. That Cuomo’s complaint did not amount to a prosecutable crime of obstruction did not preclude its potentially being impeachable conduct.

On that score, two final things should be noted.

First, in the big picture, Cuomo’s call to Jarrett is trifling compared to the actual results of Bharara’s investigation. The SDNY found significant Cuomo administration corruption, resulting, among other things, in the conviction of, and a lengthy prison sentence for, Joseph Percoco, Cuomo’s top aide and confidant. Cuomo himself barely escaped prosecution. One would think that would have been of more interest to a state impeachment inquiry than whether the governor tried to pressure the White House, which is par for the Cuomo course.

Second, the Cuomo call to Jarrett happened seven years ago. The SDNY investigation has been well known for years. Percoco was sentenced three years ago. Democrats — both Obama administration heavyweights, national party leaders, and New York state legislators — long have been intimately aware of these matters. Yet, in order to raise Andrew Cuomo into the Anti-Trump they then craved, they overlooked the corruption investigation in tripping over themselves to praise Cuomo’s handling of the pandemic — which was actually appalling.

You’d almost think it was all political!

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.