Some pushing to continue Cuomo impeachment. But is that legal?

ROCHESTER, N.Y. (WHEC) — With New York Gov. Andrew Cuomo resigning, some state lawmakers declared they still needed to push ahead with plans to impeach him in the State Legislature, while others warned of legal gray area when the governor will soon be out of office.

“I picked up the phone in my office,” said Assemblywoman Marjorie Byrnes (R-Caledonia), a member of the Assembly Judiciary Committee, “and a gentleman was just beside himself, screaming at me ‘Why isn’t anyone doing anything? Why is the judiciary committee dropping the ball?’”

After Cuomo’s announcement Tuesday that he plans to resign and leave office in two weeks, Byrnes says new Yorkers have been demanding the committee push ahead with its ongoing work investigating and impeaching him.

On Wednesday, Byrnes and five other Republicans on the Judiciary Committee sent out a statement declaring they want to keep the process going, not just over accusations by 11 women of sexual misconduct by the governor but also questions about Cuomo’s multimillion-dollar deal on a book about his handling of the COVID-19 crisis and especially his handling and transparency over the COVID deaths of thousands of New Yorkers in nursing homes.

“This has had a dramatic toll on so many hundreds of thousands of people in this state,” Byrnes explained. “We need the answers. People need closure.“

Other Assembly Republicans have joined in.

"This is probably the most non-political, and the most bipartisan, thing that I’ve ever seen,” said Assemblyman George Borrello (R-Sunset Bay). “I firmly believe that he has done horribly egregious things that should bar him from ever holding office. But we have to go through that process.”

"I think this governor has resigned to escape responsibility,” agreed Assemblywoman Jen Lunsford (D-Perinton), saying some action should continue.

But Lunsford also warned the language of the state constitution may stymie attempts to push impeachment forward when the public official being impeached is already out.

“The entirety of New York State impeachment law is a few sentences,” she observed. “You could probably fit it into two tweets. And there will be a lot of open questions about what we could or could not do.”

Article VI section 24 of the state constitution says:

“Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any public office”

“In some ways, the language gives the legislature an ‘out,’” explained Buffalo attorney and state constitution scholar Chris Bopst, “to say ‘We’re not sure whether we have the power to impeach him and to try him based on his resignation. So why push that envelope?’”

Bopst says that provision can be read either to say:

1. Only that the legislature can’t punish an official more than by removal from office and keeping him out in the future, or
2. That it simply can’t impeach, at all, someone who’s already out.

“You have a historical precedent in this country,” he added, “that when someone resigns, they’re not impeached. Now that precedent was broke with Donald Trump. But, at the same time, you had a party held the levers of Congress that was different than his political party.”

And with the legislature controlled by Democrats, Bopst says some kind of publication of the allegations against Cuomo, maybe including a public condemnation, seems more likely than a continued impeachment in the assembly and trial in the senate.

“It’s hard to imagine that the Democrats in the Assembly and the Senate are going to want to go through an impeachment and a trial of a member of their own political party after he has chosen to resign,” Bopst said.

A spokesman for the chairman of the Judiciary Committee, Long Island Democrat Charles Lavine says the committee still doesn’t have details on what comes next, but that its next meeting is still on for Monday.

Although Lunsford questions whether a lengthy impeachment process and trial in the State Senate is still appropriate for a governor who’ll be out of office already.

“I don’t know if the process itself is worthwhile,” she said. “But if It could prevent him from holding office again, then maybe that’s something we should consider.”

Lunsford also wonders if New York voters would ever put Cuomo back into public office but does find bipartisan agreement in seeking to prevent him from getting if, if possible and legal.

And, for now, the process is still scheduled to continue.

“I plan on being in Albany first thing Monday morning,” Byrnes said.