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See Andrew Cuomo explain his resignation
01:11 - Source: CNN

Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at NYU School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.

CNN  — 

New York Gov. Andrew Cuomo may still face consequences for his alleged sexual harassment of multiple women even though he has announced he is stepping down as governor in two weeks.

Jennifer Rodgers

The clearest and most immediate impact is on the impeachment inquiry in the New York State Assembly. Assuming Cuomo follows through with his promise to resign, that will likely end any attempts to impeach and remove him from office. Cuomo’s resignation, then, saves the time and resources that a presumably hard-fought impeachment and trial would require, at the cost of losing the opportunity to bar him from holding office in New York again.

While Cuomo’s leaving office means he may avoid impeachment, questions remain about what will happen to the Assembly’s investigation. The scope of the Assembly’s work was broader than the conduct addressed in the attorney general’s report, encompassing the governor’s alleged manipulation of the number of Covid-19 deaths in nursing homes, as well as the allegation that the governor improperly used state resources, including personnel, in writing his 2020 book about the pandemic. (Cuomo has admitted making some mistakes and says he accepts responsibility for his actions, but generally has denied all allegations of serious wrongdoing.)

Will those investigations continue? If so, will a public report be issued? Nothing about Cuomo stepping down necessarily ends these inquiries, even though the end result will likely no longer be impeachment and removal, and information revealed therein could potentially lead to other kinds of legal liability for the governor.

Undoubtedly, Cuomo hoped to short-circuit the rest of these investigations with his decision to resign, but New Yorkers deserve answers about the conduct of their governor and his staff on these matters of great public importance. The Assembly should complete these investigations and issue public findings, which may prove valuable for those looking to increase accountability and transparency in our state government through legislation, constitutional amendments and other structural reforms.

But there are other realms of legal jeopardy for Cuomo. In the criminal realm, the Albany County Sheriff’s Office is investigating the recently filed criminal complaint of Brittany Commisso, identified in the attorney general’s report as “Executive Assistant 1.” District attorneys in three other New York counties have announced their intention to review the report and its underlying materials to determine whether criminal investigations are warranted. Criminal charges have always been unlikely here, and the calculus has shifted slightly further in that direction with Cuomo’s resignation.

Any district attorney considering charges will have to find evidence sufficient to show proof of a crime beyond a reasonable doubt, a significantly higher standard than the preponderance of the evidence standard used by the attorney general’s investigators in their report. Additionally, prosecutors must do so using only the criminally admissible evidence, which would exclude much of the evidence considered by the attorney general’s team, including evidence of harassment involving women other than the individual complainant.

Even if prosecutors believe that this high standard is met, they will have to consider whether it makes sense to criminally charge Cuomo with what would be a misdemeanor for which he would likely face little to no jail time as a first offender, in what would be an extremely hard-fought litigation that would expend a significant amount of the office’s limited resources.

Prosecutors will want to think about whether what is being alleged is within the range of conduct the office usually would charge, and whether the fact of the governor’s resignation and what will undoubtedly be a slew of upcoming civil suits will mean that both Cuomo’s alleged victims and the public will have been adequately vindicated through those avenues.

Prosecutorial discretion is not cut-and-dried, and each prosecutor will make their own assessment of the above factors. But the remaining significant obstacles to prosecution suggest that this is not the biggest threat to Cuomo going forward.

Speaking of those inevitable civil suits, this is an area of significant legal exposure for the governor and for the state of New York. The attorney general’s report is a veritable treasure trove of information for these possible plaintiffs and their lawyers. It provides a road map of exactly how to plead and prove that the governor violated the rights of not just the women named in the complaint, but anyone who suffered the effects of his creation of an allegedly toxic work environment.

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    Civil litigation uses the same evidence standard of proof as did the attorney general’s report, and while each case will be decided on its own merits, the factual findings and legal arguments in the report give these many potential plaintiffs a very strong basis for claiming damages from both Cuomo and from the true deep pocket here, the state of New York.

    According to the governor’s announcement, his tenure as the leader of New York state will soon come to an end. But his actions while he held that position, as alleged in the attorney general’s report, will rightly continue to be discussed and dissected in New York courtrooms for years to come.