Cuomo- The Investigative Report

Overview

In February, Cuomo appointed former Federal Judge Barbara Jones as independent investigator of the allegations made against him. After the AG did not accept this choice, he asked that James and Chief Justice Janet DeFiore select jointly independent investigators. However James preferred overseeing the investigation and selecting investigators on her own.

On March 1, 2021, the Executive Chamber made a referral for Attorney General James to select independent lawyers to investigate allegations of sexual harassment allegations made against Governor Cuomo. James appointed Joon H. Kim and Anne L. Clark on March 8, 2021.

According to James and her investigators, they reviewed more than 74,000 documents, emails, texts, and pictures and interviewed 179 individuals. On August 3, 2021, they presented their findings to the public, concluding that Cuomo was guilty of harassing multiple women.

There are numerous problems with this investigation and the report. Details and examples are discussed below.

The investigators and the AG appear to not be independent and free of conflict of interest.
The investigators interviewed only 41 (23%) out of 179 individuals under oath.
James did not release transcripts to Cuomo and his counsel, not even his own.
It appears transcripts don’t even exist for the 138 individuals they interviewed without oath.
Cuomo, the Executive Chamber and their lawyers had no opportunity to review and respond to the report before James released it.
They did not obtain key information and omitted and ignored it for several cases.
The investigators disregarded information mentioned in the report, e.g. threatening of witnesses.
They ignored witnesses contradicting the narrative and conclusion of the report.
On the other hand, the investigators quoted witnesses supporting the narrative and agenda of the report in detail and repetitively.
They barely mention Cuomo’s testimony.
Statements and information contradicting the narrative are buried in footnotes and appendices.
They interpret evidence that supports Cuomo and use it as evidence against him.
They included cases for which workplace related harassment laws don’t apply.
Pages are filled with descriptions of trivial situations that are not harassment nor inappropriate.

General Issues with the Investigation

No opportunity for review and response

James did not give Cuomo and his attorneys the opportunity to review and respond to the findings.
Cuomo’s counsel Rita Glavin stated the AG did not even provide Cuomo with his own transcript.
Arnold & Porter write in their response “you did not even alert us that you were releasing your report today”.
They further point out that it is standard practice of agencies – such as the DOJ-OIG* – to share drafts of their reports, conduct follow-up interviews based on comments, and include comments in the final report. This is done to ensure factual accuracy and objectivity. Cuomo was reading the report at the same time as media and the public, unable to respond, rebut or even raise questions.
*_{U.S. Department of Justice Office of the Inspector General}

Selection of Witnesses and Statements

They disregarded employees who did not witness inappropriate behavior..The report states (p. 121): “A number of former and current Executive Chamber staff, particularly the senior staff, as well as State Troopers on the PSU, denied having witnessed or experienced any conduct by the Governor that could be characterized as sexual or otherwise inappropriate.”
They disregarded employees who have denied the work culture was toxic. The report states (p. 123): Some of the former and current staff members of the Executive Chamber, however, denied that the Executive Chamber had a toxic environment. Certain witnesses acknowledged that the Governor was demanding and could make it clear when he was unhappy, but did not go so far as to describe his behavior as toxic, abusive, or unreasonable.”
They disregarded employees who did not feel “uncomfortable”. The report states (p. 121): “The evidence in our investigation has also shown that the Governor exhibited a close and sometimes physical intimacy with his senior staff” and continues (p. 122): “None of these senior staff reported feeling uncomfortable with this behavior.”
They did not provide information on how many “a number” or “several” employees not supporting the narrative are. What is the ratio of witnesses who have NOT experienced hostile or inappropriate behavior? Why aren’t details of their statements provided regarding their work experience and examples?
The pages are full of stories told by a selected group of individuals. Some of them are the accusers corroborating themselves. This include complaints like “the Governor would become angry at her if he deemed her work less than perfect” or that Cuomo said “Why don’t I do my job and your job, because you obviously cannot do your job?” (p. 123).

The conclusions are severely biased and not based on facts

In each case, the female accuser is assessed as credible based on “demeanor”, “substance,” “detail” and “consistency” of allegations, no matter how trivial and inconsistent with the evidence their stories are, how questionable the credibility of the accuser based on history and context is, and how often the details in the stories change significantly.
In each case Cuomo’s testimony is assessed as “unpersuasive”, “not credible”, “devoid of detail”, even though evidence corroborates his version, and not remembering details of random interactions with random people often years before is to be expected. Quite the opposite, it is the excessive detail of trivial situations a long time ago in the descriptions of the accusers that raises red flags.
Multiple male witness statements are disregarded while the mantra “we believe the women” was even verbalized in the press conference.
None of the claims that could be considered sexual harassment (of which there are few) or inappropriate is corroborated by evidence or eye witnesses.
The report is full of the accusers’ subjective feelings, perceptions, interpretation of situations and behavior, “mind-reading” as well as hearsay and comments that other people thought and told the accusers. The conclusions are not based on objective facts. Facts were often not checked.

AG and investigators are not free of conflict and bias

The AG has a potential conflict of interest. James has been widely regarded as a potential contender for the 2022 gubernatorial election. So far, she has not ruled the possibility out and leaves the door wide open. By forcing Cuomo to resign, the investigation has removed the biggest obstacle for an aspiring governor and raised her political profile significantly.
Joom Kim has a history with Cuomo. When at the SDNY, Kim investigated Cuomo in the Moreland Commission case (unsuccessfully), and prosecuted his close aid and friend Joseph Percoco. Kim is also close to former US Attorney for the SDNY, Preet Bharara, who has a very negative history with Cuomo. Cuomo called Bharara “unethical” and “press hungry” and was blamed for Bharara being fired. See more in the letter from the external counsel for the Executive Chamber.
Anne Clark is a plaintiff’s laywer. Clark is an employment lawyer with decades of experience representing employees in harassment and discrimination cases. This makes her not only an expert on presenting this matter but also places her in the corner of the accusers with a one-sided angle and focus.

Brittany Commisso Case (Accuser #1)

The report concluded unequivocally that Cuomo groped Commisso on November 16, 2020 at the Executive Mansion. This is false.

Records documenting the activities that day (arrivals and departure times, emails, phone calls) show that this is impossible. Cuomo’s Team provided a detailed timeline of Cuomo’s and Commisso’s activities that day.
Investigators did not inform Cuomo and his counsel about the date the incident allegedly happened and who the complainant was. Therefore, they could not provide evidence showing the claim was false before the report was made public.
After Cuomo’s council provided the timeline, Commisso stated that the AG Report got the date wrong.
Investigators did not ask witnesses who were on site about the events and their observations that day.

The report ignores a potential financial motive.

Commisso told Cuomo in or around November that she was going through a divorce which created financial pressure on her. She asked her supervisors in late 2020 and early 2021 about a raise and more overtime hours on weekends. The raise was denied and no other promises were made. She then started with her allegations on March 3, but only claimed groping on March 6. This was after another assistant received weekend duty overtime hours instead of her. She then obtained a personal injury lawyer instead of filing an official complaint. This would indicate the plan to file a civil lawsuit to obtain money.

The report ignores Commisso’s credibility issues.

It uses this party photo as evidence of sexual harassment and this selfie as evidence of sexual harassment that allegedly happened seconds before. These photos do not support sexual harassment allegations.
The report does not question why she has her hand around Cuomo’s shoulder and snuggles her head against him right after he allegedly harassed her.
The report ignores significant variations of Commisso’s story. In her TU interview on April 7, 2021, she claimed that she was called in to fix a “technical issue with his mobile phone” and that he groped her the moment she entered his office. In her testimony (report p. 24) with the investigators she claimed that her task was to take a photo of a document and that the incident occurred when she was leaving after completing this task. The report acknowledges that her story varies regarding the timing of when he closed the door (before or after groping), but this is buried in a footnote and disregarded.

The report ignores and omits witness statements.

It ignores a witness statement, saying Commisso and McGrath were the ones who wanted the party picture taken and were proud of these photos. This is buried in a footnote.
On page 24 the report states: “we learned during our interviews that Governor Cuomo had asked two other women in the Executive Chamber, on separate occasions, to take a selfie with him and then instructed each woman to send the selfie to a different woman in the Executive Chamber.” It omits any further information as evidence , not even a quote, regarding this matter.
On the same page, the report describes an incident during which Cuomo compared heights with her and put his head on hers, then making a comment to “everyone in their room” that he was taller. “Everybody in the room” are not specified and nothing indicates that they testified as witnesses or asked to testify.
The report ignores witnesses questioning Commisso’s claims of unwelcome behavior and corroborating Cuomo’s version.

Charlotte Bennett Case (Accuser #3)

The report does not mention Bennett’s history of making false allegations.

Bennett is listed as a participant of coordinated false sexual assault claims in a lawsuit filed by a former Hamilton College student in 2017. She only withdrew her fabricated complaint after the College removed the student from Campus and denied him graduation.
It is unclear if the investigators did not investigate Bennett’s background and past behavior so were not aware of it or if they chose to ignore this information, which is absolutely crucial for the assessment of her credibility.

The report omits Cuomo’s testimony about his experience with sexual assault in his family.

Cuomo has a very close family member who is about the same age as Bennett and is also a victim of sexual assault. This traumatic personal experience provides crucial context to understand his conversations with Bennett, after she told him unsolicited about her sexual assault experience.
Cuomo’s counsel stated that he testified in detail about this. However, his testimony was not included in the report. It only mentions briefly “that at one point, the Governor asked her if she knew what a “cone of silence” was and discussed with her that someone close to him had also been sexually assaulted.”
Knowing this information changes the perceived nature of the interactions between Cuomo and Bennett significantly. Not only did the investigators barely mention it (effectively sweeping it under the rug), they also clearly ignored it as nothing makes it more clear where Cuomo was coming from, and that there was never any sexual interest in Bennett.

The report ignores red flags regarding reasonability.

Misunderstanding/misrepresenting/sexualizing concepts. Equating “hanging out with” with “sleeping with”, associating hands with genitals, calling being raped “losing my virginity”.
Sharing intimate information with her boss whom she barely knows. Telling him about being sexually assaulted when asked for simple chat and then about getting a tattoo to change the subject.
Displaying uncommon behavior. Coming to work in leggings and sweatshirt (sleepwear/pajamas as she said earlier) and jean shorts. When Cuomo asked her why she had her hair in a bun, “she became angry and yelled “you don’t like my bun?!” and yelled to the other assistants, “he doesn’t like my bun.””

Lindsey Boylan Case (Accuser #4)

The report ignores Boylan threatened witness Howard Zemsky.

The report mentions (p. 71) that Boylan threatened Zemksy into changing his story to support hers. It completely ignored this witness tampering. Apparently investigators did not see an issue with it.
The 3 other witnesses do NOT corroborate Boylan’s claim, saying “they never heard the Governor make any comment about “strip poker”. Still, Zemksy’s testimony after he was threatened is used against Cuomo in the conclusion.
On page 76 the report states: “While the Governor vehemently denied, and others did not recall, the “strip poker” comment, Mr. Zemsky testified under oath that he recalls the Governor making such a comment, independently corroborating Ms. Boylan.” This contradicts what is said only 5 pages earlier – the other 3 witnesses said “they never heard” him say it, not “did not recall”. Zemksy did not “independently” corroborate Boylan when she threatened him to change his story.

The report ignores Boylan threatened former colleagues.

After making her allegations, Boylan asked former female colleagues from the Executive Chamber to corroborate her story about the toxic work environment and sexual harassment. She threatened these women after they did not comply with her request. (AG report p. 76, Screenshot). No information is provided on when, whom and what she threatened.
After the Governor shortened the petition period for ALL primary election candidates in March 2020 to reduce the spread of the virus, Boylan sent text messages threating retaliation to senior Executive Chamber employees. “I will find a way to respond. Life is long. And so is my memory. And so are my resources” and “The future is coming after assholes”.

The report ignores Boylan’s credibility issues.

Boylan was dishonest with regards to her departure from ESD. She pretended she left because the work environment was toxic. In fact she was reported by employees for being abusive, hostile and a bully. When she was held accountable, she quit her job and wasn’t allowed to come back when she asked to return a few days later. She tried to contact Cuomo to get her job back but he did not answer her request.
Boylan posted numerous tweets – highly positive, almost idolizing – about Cuomo during and after the time she was allegedly working in the highly toxic work environment and sexually harassed by Cuomo.

Trooper#1 Case (Accuser #2)

The report misrepresents the circumstances of her transfer

The report insinuates that Trooper#1 was selected by Cuomo to work close to him in the PSU and claims this is substantiated by the Sr. Investigator who was involved in her transfer (p. 43, Screenshot). This is incorrect. It was the PSU Sr. Investigator with whom she drove to Randall’s Island which led to her first interaction with Cuomo (p. 33 Screenshot), It was also this Senior Investigator who suggested to Cuomo to hire her. (p. 34 Screenshot).
The report also insinuates that that special accommodations were made to transfer the trooper because she had not met the required minimum service time of 3 years. She was hired on March 2, 2015 and transferred on January 25, 2018, based on performance, at the same time as another trooper with the same amount of experience. This is clearly stated in internal State Police emails. Furthermore the trooper was only missing 5 weeks to fulfil the 3 year requirement. It is common practice to waive such a negligible time requirement to fill vacant positions.
The report does not question why a reporter from the Times Union requested information about the troopers transfer on December 18, 2020 (5 days after Boylan made her allegation).

The report ignores witness statements and buries them in footnotes

The trooper claims Cuomo asked her about her attire when she was driving him to an event. She said that the Detail Commander, who was in the car, texted her later “stays in the truck” (which she assumed meant not to talk about). The Detail Commander did not corroborate this story. This is not mentioned in the body of the report but in a footnote on the bottom. (p. 36, fn#257).
The trooper claims Cuomo ran his finger down her spine and said “hey you” when she was in the elevator in front of him. The Senior Investigator who was also in the elevator, did not corroborate this story. This is also only mentioned in a footnote (p. 39, fn#287).

The report provides no context and obscures details on the only severe claim

The trooper claims Cuomo touched her stomach when she held a door open for him. This is corroborated by one Senior Investigator “who was walking behind the Governor” and saw him “touch Trooper#1 in the stomach”.
They did not provide details regarding the context of the event, what kind of door, how many other witnesses were around, how narrow the space was. They also did not include details of the Senior Investigator’s statement.
We reviewed Cuomo’s Flickr account. Photos show that the event took place at the construction site for the Belmont Park Arena. Based on the scenery it would appear that the door she held open was a car door.
The context of the event setting and details of the situation are essential to evaluate this claim. It would not be uncommon and problematic that a person who is getting into a car accidentally touches another person (who is standing next to the door). Not providing any of these details to clarify and assess this situation is a red flag.
In a footnote the report mentions a PSU member who stated he “heard that the Governor asked Trooper#1 when he put his hand on her stomach if she was pregnant, which Trooper#1 denied”. Who told him that? The trooper? When? If so, did she change her story?

State Employee#1 Case (Accuser #9)

According to the report, Cuomo “double tapped” her butt area with his hand and than grabbed it. She documented this contemporaneously in an email to herself.
This email deviates significantly from what is claimed in the report. She does not mention that he grabbed her butt in this email. The report does not quote from the email contradicting the narrative. It was buried in hundreds of pages of evidence in the 3 separate appendices.
The report does not provide crucial context regarding the context of this event. This includes the fact that Cuomo’s daughter was not only with him but next to him. The report also obscured the nature and date of the event, making it hard to identify and evaluate the claim.
Photos were not included in the report although (according to Rita Glavin) about 190 photos were taken (some available on Flickr) and cameras and video cameras documented Cuomo’s movements not showing any inappropriate behavior.

Virgina Limmiatis Case (Accuser #10)

Limmiatis is not a state employee. The law doesn’t apply to her case, but additionally her case shows how the investigation was conducted.
Limmiatis claims she was in a rope line at an event, and when Cuomo passed, he slid the fingers of his right hand on the company name across her chest and leaned in so that their cheeks were touching.
Evidence shows Limmiatis’ claims are false (Photos). There is no rope line, he is not touching her, the name is above, not on her chest, his right hand is far away, she has her hand on his shoulder, she is staying in the area taking pictures of him.
These photos disproving the claim are not included in the report.

Complaints included that are not sexual harassment

Complainants who were not employees

Sexual harassment law is a workplace related law, therefore complainants who are not employees who claim they experienced unwanted attention are not covered by this law. They do not belong in the investigative report.
Accuser #11, Anna Ruch was a guest at a wedding, she did not work for Cuomo or the State.
Accuser #10 Virginia Limmiatis is a National Grid employee and met Cuomo at an event.
The inclusion of the cases indicates that the investigators wanted to increase the number of allegations, even though they have no legal standing. As the cases are weak, they padded them by quantity over quality.

Complaints about trivial encounters and behaviors

The allegations of the accusers below are not sexual harassment by any reasonable standard and should not be in this report. The only logical explanation for these complaints being added is an attempt to increase the number of accusers.

Accuser #5, Alyssa McGrath: Claims Cuomo called her and Commisso “mingle mamas”, asked her about divorce and child custody arrangements / child support, looked at and commented on her necklace.
Accuser #6, Ana Liss: Claims Cuomo called her sweetheart/darling, said she’s lovely, kissed her hand and cheek, asked if she had a boyfriend, had his arm around her when taking a photo.
Accuser #7, Kaitlin: Claims Cuomo told her to soak up knowledge like a sponge and called her sponge, told her she looks like a lumberjack when she wore a lumberjack-style shirt, asking her if she didn’t get ready to work when she did not wear makeup, was behind her when she wore skirt and heels.
Accuser #8, Elizabeth Dufort: Claims Cuomo said jokingly “gentle but accurate, I heard that before” when she told him that she would be gentle, but accurate. He also said to her “Doctor, you make that gown look good” live in front of millions of witnesses during a press conference where she performed a live Covid test on him.

The majority of the 165 pages of the report are filled with lengthy descriptions of trivial stories which are repeated at least 3 times – in the executive summary, the case description, and the conclusion.

Boylan received a rose (among other female staff members) from the Governor’s office for Valentines Day.
During an event Cuomo and his then-girlfriend walked towards Boylan and her husband and shook hands. Boylan complained that this was sexual harassment. When he first met her, he also shook hands in a “creepy, weird” way.
A senior staff member for Cuomo emailed her boss asking about Boylan’s attendance at an upcoming event.
He asked Trooper#1 (allegedly) why she did not wear a dress and wore dark colors when driving him to an event.
He asked Bennett (allegedly) why she wore a bun in her hair and called her Daisy Dukes when she came to work in Jean shorts (!).
He put his hand around the waists of people and touched their back during photo shoots. As do most people when they are taking pictures. Where else should the hand go?
He asked several complainants about their personal lives including if they were married or dating. This is something managers and leaders are supposed to do to show interest in employees as human beings.