The threat of impeachment helped push New York Gov. Andrew Cuomo to resign. But with Tuesday’s announcement that he would step down in two weeks, it remained an open question whether state lawmakers could nevertheless push ahead with impeachment proceedings and try to bar him from future statewide office.
Just as questions swirled over the second impeachment of former President Donald Trump in his final days in office, there is uncertainty over the practicality of trying to impeach the three-term Democrat partly over allegations he harassed at least 11 women.
Some legal and political experts said that while people still may be interested in a process that holds Cuomo accountable, it is unclear whether lawmakers would have either the political will or the legal authority to impeach him on his way out the door.
“I’m not sure what the purpose of impeachment is. Impeachment is to remove him from office,” said Bennett Gershman, a law professor at Pace University. “He’s got to be impeached and then then convicted by the Senate, and that’s a lot of work, a lot of hours. You’d think that these New York state representatives have better things to do than sit in judgment of a governor who’s already resigned.”
Although he has apologized for some of his behavior with women, Cuomo has denied any wrongdoing.
A lightning-round effort to impeach Cuomo before he leaves seems unlikely. The state Assembly’s Judiciary Committee — the first stop for any impeachment matter — has been exploring whether there are grounds to impeach him since March, examining the harassment allegations but also other issues, like the governor’s handling of COVID deaths in nursing homes.
After Cuomo announced his plan to resign, the committee said it intended to finish that inquiry before deciding how to proceed. Its next meeting is set for Monday. In the meantime, the committee has asked lawyers to look into whether impeachment could move forward.
Lt. Gov. Kathy Hochul, who will succeed Cuomo, declined to weigh in on the matter during a press conference Wednesday.
The end result — Cuomo out of office — is already a certainty, said Assembly Judiciary Committee Chair Charles Lavine, a Democrat.
“Impeachment itself is going to be moot. It’s not going to be meaningful,” Lavine said, unless to “prohibit him from ever again occupying statewide office.”
The state Legislature — both chambers are controlled by Democrats — would have to muster the political will to quickly move forward with impeachment hearings, Gershman said, and would only do so as a punitive act to bar Cuomo from again seeking state office and possibly strip him of the perks accorded to elected officials who leave under normal circumstances.
“I think that scenario is incredibly unlikely,” said Ross Garber, an attorney who has represented four recent U.S. governors facing impeachment proceedings in their respective states.
His reading of state law is that a person must be in office at the time of impeachment, citing discussions in 1853 by the Assembly Judiciary Committee.
But that interpretation has never been tested. Only once before has a New York governor been impeached. In 1913, during the state’s notorious Tammany Hall era, Gov. William Sulzer was impeached — just 10 months after being sworn in.
It would take a simple majority of the Assembly to advance articles of impeachment to the High Court of Impeachment, which comprises members of the Senate and the state’s highest court. To convict, two-thirds of the impeachment court must agree.
But the state constitution doesn’t spell out much else, including the grounds for impeachment.
“Now the guy’s resigned and you want to impeach him, and you have to define his offenses as impeachable to do it, and that has a precedential consequence,” said Gerald Benjamin, a longtime scholar and expert on New York state government. “Are you defining only those things he did as impeachable, or are you defining all impeachable things, one of which is what he did?”
He agreed that it’s unclear if lawmakers can impeach a governor who’s resigned.
“There’s very little in the Constitution about impeachment, and the language is really quite vague,” added Richard Rifkin, who has worked in state government for 40 years, including in the attorney general’s office and as a special counsel to former Gov. Eliot Spitzer.
“There really isn’t any definitive precedent to say that you may or may not continue with the impeachment after the removal,” Rifkin said. “If you spoke to a number of lawyers, you could very well get different answers, and nobody would be wrong.”
Six Republican members of the Assembly’s Judiciary Committee said in a statement that they wanted the body’s impeachment investigation to continue.
“The people of the state of New York deserve a full, public disclosure of the information obtained during our search for the truth,” they said.
The director of the Working Families Party, an influential progressive group that has feuded with Cuomo, also called for the impeachment process to continue.
“Resignation is not accountability, and we urge the Legislature to continue with impeachment proceedings so that Andrew Cuomo is never again elevated to a position of power,” party director Sochie Nnaemeka said.
Trump’s second impeachment proceeded in near-lightning speed, just a week after the Jan. 6 insurrection at the U.S. Capitol that triggered it. A month later, three weeks after Trump left office, Democrats in the U.S. Senate failed to muster the requisite votes to convict him.
There doesn’t seem to be the same kind of political urgency with Cuomo.
“The pressure has been for Cuomo to resign from the beginning, that was what everybody has been talking about from President Biden on down,” Gershman said.
As it stands, Cuomo would anyway have at least 30 days to mount a defense against any articles of impeachment — meaning the outcome wouldn’t be known until long after he’s left office.