The New York Law Journal by Joel Stashenko - August 04, 2008
ALBANY - Aides to then-Governor Eliot Spitzer viewed state Attorney General Andrew M. Cuomo's investigation of Spitzer administration efforts to discredit a political rival as overly aggressively and possibly politically motivated, testimony gathered by the state Commission on Public Integrity indicates.
Testimony also indicated that former Spitzer aides told Mr. Cuomo's office prior to release of his report in July 2007 that the governor would not embrace its findings if it contained any references to the governor's office not being cooperative with the investigation. In a version of events disputed by Mr. Cuomo's office, the Spitzer aides testified that the attorney general's camp, in turn, wanted Mr. Spitzer's statement about the attorney general's report to praise its fairness. The testimony about the communications between the aides to Messrs. Spitzer and Cuomo is included in more than 3,000 pages of documents made public by the Public Integrity commission based on its own investigation into actions taken by Mr. Spitzer's office against his political rival, state Senate Majority Leader Joseph Bruno.
The documents also included testimony by Albany attorney Terence Kindlon, who represented former Spitzer communications director Darren Dopp during the late stages of the investigation. Mr. Kindlon told the commission that top Spitzer aides were dismayed at how aggressively Mr. Cuomo investigated Mr. Spitzer's office and frequently made cutting remarks about the attorney general, sometimes in obscene terms. "There were many, many derogatory things said about Andrew Cuomo and the people working with him and that he wasn't trusted; that . . . there was a sense that, you know, he wanted to be governor some day and wanted to destroy Eliot Spitzer," Mr. Kindlon testified on Jan. 23. Mr. Kindlon testified that he could not remember specifically which Spitzer aides said what about the attorney general and his staff, except that Mr. Dopp was the only Spitzer staffer present who did not criticize Mr. Cuomo. "I do recall Andrew Cuomo being described as an animal," Mr. Kindlon said. "That's probably the nicest thing anybody called him."
The mistrust of Mr. Cuomo's office helped convince Spitzer administration attorneys not to allow Mr. Dopp or Richard Baum, Mr. Spitzer's secretary, to testify to the attorney general about their roles in efforts to use State Police to gather travel records thought to be damaging to then-state Senate Majority Leader Joseph Bruno, Mr. Kindlon said. Instead, Mr. Spitzer's office provided statements signed by Messrs. Dopp and Baum to the attorney general describing their role in the Bruno record-gathering operation. Mr. Kindlon, who said he concurred in the decision not to allow Mr. Dopp to testify before Mr. Cuomo's investigators, described the statement he helped draft for Mr. Dopp as "very deliberately designed" to "say next to nothing." "Well, it was - you know, it is so to speak was papering the file, a gesture," Mr. Kindlon said.
Mr. Cuomo did not use the statements in his report, which questioned the record-gathering activities of the police but concluded that no crimes were committed. Mr. Cuomo has subsequently begun an investigation into whether the operations of the State Police have been improperly politicized. The release of Mr. Cuomo's report on July 23, 2007, further damaged the already fractured relationship between Mr. Spitzer, a Democrat, and the Republican Mr. Bruno. The poisonous relationship between the two men persisted through Mr. Spitzer's resignation in March 2008 after he was caught by federal authorities patronizing a prostitute. The Public Integrity commission last month charged Mr. Dopp and Preston Felton, the former acting superintendent of State Police, with violations of Public Officers Law for their roles in the travel records affair (NYLJ, July 24). Mr. Baum and William Howard, Mr. Spitzer's former liaison with the State Police, were charged with lower-level violations of the law. Messrs. Baum and Howard admitted to the charges and settled with the commission. Messrs. Dopp and Felton are contesting the allegations.
Cuomo 'Very Aggressive'
The testimony released by the commission indicates that Mr. Spitzer's policy director Peter Pope and deputy secretary Sean Patrick Maloney advised Messrs. Dopp and Baum on how to respond to the Cuomo investigation along with the counsel to the governor, David Nocenti. Mr. Nocenti told the commission on Feb. 14 that Mr. Cuomo's office "was being very aggressive in their interviewing of witnesses."
Mr. Nocenti and Mr. Pope both told the commission that they were dismayed when Mr. Howard testified under oath before Mr. Cuomo's investigators without the approval of the Spitzer administration attorneys. Mr. Howard misstated some facts, opening himself up to the possibility of a perjury charge. (See Mr. Pope's testimony.) That experience also weighed against the decision of Mr. Spitzer's office not to produce Messrs. Dopp and Baum for their testimony before Mr. Cuomo, both Mr. Nocenti and Mr. Pope told their commission interviewers, though Mr. Dopp, in particular, was eager to appear. "They [Cuomo investigators] had indicated to us that, you know, any time you have inconsistent testimony, there is always the potential for perjury or a perjury charge, as opposed to just, you know, innocent differences of recollection," Mr. Nocenti testified on Feb. 7. "We were specifically told that the Attorney General's office was not doing a perjury investigation, but I believe there may have been some discussion . . . of, you know, the practical foibles of going in and testifying."
The Spitzer administration attorneys also said the request for the testimony from Mr. Dopp and Mr. Baum came late in Mr. Cuomo's investigation, after the governor's office had been told by Mr. Cuomo's investigators that no criminality would be found. Once Mr. Cuomo's report was nearly complete, Mr. Nocenti testified that the Spitzer camp made it clear that it could not embrace the Cuomo report if it contained any references to Mr. Spitzer's office failing to cooperate with the investigation. Mr. Cuomo's aides, meanwhile, wanted assurances that Mr. Dopp and Mr. Howard would be disciplined internally. Mr. Cuomo's office also wanted former acting State Police Superintendent Preston Felton disciplined, but Mr. Spitzer's office declined, saying he was acting at the direction of Messrs. Dopp and Howard. Mr. Nocenti testified, however, that Mr. Felton's activities effectively doomed any chances he had at being confirmed by the Senate as State Police superintendent on a permanent basis.
Mr. Felton has since retired.
Mr. Cuomo's aides also wanted a statement from Mr. Spitzer accepting Mr. Cuomo's findings and praising the fairness of the investigation, Mr. Nocenti testified. Those discussions between the aides to the governor and the attorney general occurred on July 22, 2007, the day before Mr. Cuomo's report was made public. Mr. Cuomo was chiefly represented in the discussions by Ellen Nachtigall Biben, the special deputy attorney general for public integrity, and special counsel Linda A. Lacewell. "We wanted to know what the report was going to say, sum and substance, including our cooperation," Mr. Nocenti testified. "They wanted us to say positive things about the report, including saying that it was fair and accurate, I guess is the best way to describe it." In that statement, Mr. Spitzer said, "I want to thank the Attorney General's Office and the state Inspector General's Office for their efforts and for issuing an expeditious, thorough, professional and fair report."
Mr. Cuomo's aides last week denied that any deal making with Mr. Spitzer's office altered the content of their report. John Milgrim, Mr. Cuomo's spokesman, said it is standard procedure in the attorney general's office to brief the subjects of an investigative report just before their release "to give the parties a chance to tell us if there are any inaccuracies and to avoid unfair surprise." "Neither Governor Spitzer's staff nor Senator Bruno's staff, both of whom were briefed, indicated that there were any inaccuracies in the report," Mr. Milgrim said. "Indeed, one year later, it is clear that the findings in the Attorney General's report were factually accurate and fair in tone." Mr. Milgrim said it is "not surprising that the governor stated the report was fair and accurate." It was up to the governor what he put in his statement about the investigation, not the attorney general's office, he said.
'Terribly Incomplete' Report
Mr. Cuomo's report was silent on the matter of cooperation that investigators received from Mr. Spitzer's office. In his May 9 testimony to the Public Integrity commission, Mr. Spitzer said he understood Mr. Cuomo's office had made the "misguided" request that the governor would make a statement praising a report that Mr. Spitzer had not seen. "We knew that that report was, at a minimum, terribly incomplete, and based upon an incomplete record," Mr. Spitzer testified. The ex-governor said he knew there were conversations between his aides and Mr. Cuomo's aides about his statement and the attorney general's report prior to its release, but he testified that he did not know about the substance of the discussions. Mr. Dopp was suspended as communications director and never returned to that post. He now works for an Albany lobbying and public relations firm, Patricia Lynch Associates. Mr. Nocenti told the public integrity commission that Mr. Dopp's punishment was ultimately disproportionate to his misconduct. "In the aftermath of all of this, my view became that he ended up with much worse consequences than he merited," Mr. Nocenti said. -Joel.Stashenko@incisivemedia.com