ANDREW CUOMO’S EXIT: A TALE OF TWO PARTIES – ONE REPUBLICAN, ONE DEMOCRAT - YOU CHOOSE

Two things happened Tuesday, August 10, in which Democrats – and the nation – could take

pride. First, the U.S. Senate passed President Biden’s $1.2 trillion bipartisan infrastructure bill. Second, New York Governor Andrew Cuomo announced his resignation in the wake of a sexual harassment scandal. The infrastructure deal isn’t done. The bill that passed the Senate may not clear the House unless Biden and his allies can pass a companion $3.5 trillion “human infrastructure” bill through budget reconciliation. That means we’ll have opportunities for talking about infrastructure for months.

We want to talk about the Cuomo development now! It showed the fundamental difference in our

two major political parties. Cuomo’s situation provided an apples-to-apples comparison of how Democrats and Republicans handle sexual harassment. Both have faced exams on sexual

harassment charges against one (or more) of their stars. With Cuomo’s announced departure, Democrats, in our view, passed their test. Republicans flunked the same exam numerous times.

The fact of this starkly different result makes even clearer just how much our political system has changed, and not for the better. The parties look like they evolved in separate societies; that they didn’t come from a common tradition in which decency, civility, accountability, and dedication to the rule of law triumph over the imperative of retaining power.

The Cuomo Challenge

Andrew Cuomo hails from a powerful political

family. He’s accomplished a great deal in politics on his own. His father, Mario Cuomo, served three terms as New York governor, perpetually flirting with running for president and delivering eloquent convention speeches in 1984 and 1992 that stirred Democratic hearts nationwide. Andrew Cuomo served as Secretary of Housing and Urban Development in the Clinton administration, New York attorney general, and nearly three terms as New York’s governor. He’s been an immensely effective political operative, to the point of leaving office with an $18 million campaign war chest. He’s, also, been known as someone you don’t cross in New York politics.

Despite the fear Andrew Cuomo once struck, there he was on August 10 announcing he’d  step aside,

effective 14 days later. He left to a chorus of “Amens” from local, state, and national Democrats. Unfinished business remained: (1) post-resignation impeachment proceedings that could permanently bar him from office; (2) criminal investigations; and (3) civil suits brought by his alleged harassment victims. Legislative leaders appeared genuinely divided over the first question. They must consider Cuomo’s potential complicity in a nursing home scandal and ethical

transgressions involving a book deal. They found themselves torn between moving on and a desire for accountability. Some former prosecutors thought the criminal cases might go away. The civil suits, however, will go forward and probably get settled when Cuomo pulls out his checkbook.   

 

Democratic Unity

Democrats forced Cuomo from office. First, fellow Democrat, Attorney General Letitia James,

conducted the investigation and authored the damning report that forced his hand. Second, New York’s political leadership quickly called for Cuomo’s resignation. They’re all Democrats – U.S. Senators Chuck Schumer and Kirsten Gillibrand,  New YorkCity Mayor Bill de Blasio, and strong majorities in the state legislature. After the James report, they all said Cuomo should leave.  Third, President Biden weighed in early, asserting that if the James investigationproved the allegations against Cuomo, he should resign. Biden restated that position once the report came out. It showed credible evidence supporting the allegations of 11 women who charged Cuomo with offensive touching, creation of a hostile work environment in his office, and other transgressions. 

The Democratic unity left Cuomo no running room. Nobody defended him. As legislative impeachment machinery moved into high gear, Cuomo ran out of options. Timing represented the major surprise in the August 10 resignation announcement.  Many expected he’d leave eventually, but most observers thought the combative Cuomo would fight long and hard in an effort to hang on as long as he could.

 

And Republicans?

As suggested, we believe the most important aspect of the Cuomo resignation story resides in the difference between how Democrats reacted to his difficulties versus how Republicans handled similar situations. First, of course, there’s former President Donald Trump. Must we reiterate the facts of the Access Hollywood tape and the Stormy Daniels payoff? Those Trump sins (and others) were arguably worse than Cuomo’s, but Republicans stood by him.  Had Republican leaders abandoned Trump in October 2016 after the Access Hollywood tape emerged, the nation likely would have been spared the disaster that was the Trump presidency.

Then, there are the Republican second stringers like

Florida Congressman Matt Gaetz, accused of sex trafficking in underage girls, and Ohio Congressman Jim Jordan, who allegedly helped cover up sexual abuse allegations in the Ohio State University wrestling program while he coached there. In each instance, Republican members of Congress and other GOP elected officials stood by these bad actors or remained silent, which is as bad (or worse).

We’ve said we think America needs two viable political parties arguing over ideas and policy.  We’ve also said we don’t need this Republican Party because it’s not interested in character ideas or policy, only in keeping power. The Cuomo affair demonstrated that we have one party that will police itself in the name of fidelity to our values and institutions.  The other party, as currently led and configured, won’t do that. It deserves that special place in hell for those who thrash those cherished values and institutions.  

                     

SEXUAL HARASSMENT AND DUE PROCESS: From Easy Cases to Hard Ones

A little while ago we started exploring sexual harassment.  We acknowledged the discussion must begin from a premise of intolerance. To repeat: No woman

(or man) should have to endure unwanted sexual advances to get a part in a film, work in a bakery or congressional office, pursue educational opportunities, or serve in the military.  We recognized, though, that’s not the end of the inquiry.  After discussing definitions and recent high profile cases, we noted one of the difficult questions surrounding sexual harassment – balancing due process and fairness concerns with the need to encourage victims to come forward.

 

Rob Porter, Rob Porter, Rob Porter

For a while, the case of White House Staff Secretary Rob Porter

gripped Washington.  Porter resigned, or was fired, depending on the correct interpretation of statements by Chief of Staff John Kelly, after reports surfaced that Porter physically abused his two former wives and, therefore, couldn’t get a permanent security clearance.  The FBI investigated Porter and apparently told the White House during the summer of 2017 what it found.  Porter, who denies the abuse charges, obtained temporary

clearances and remained on the job until a British newspaper published the domestic violence allegations.  The FBI investigation likely turned up a restraining order one of the women obtained against Porter and a photograph showing one with a black eye.  Amazingly, reports surfaced this week that the White House is considering rehiring Porter.

Kelly first claimed not to have known about Porter’s issues and defended him as “a man of true integrity and honor.” Kelly reportedly urged Porter to ride out the storm.  After the photo surfaced, however, Kelly asserted Porter “was gone forty minutes later.” This account conflicted with FBI Director Christopher Wray’s congressional testimony that the Bureau updated the White House on its findings about Porter three times in 2017.  Sources said the July 2017 report detailed the spousal abuse allegations, meaning Kelly probably knew about Porter’s alleged transgressions long before the British newspaper report. 

 

President Trump lauded Porter’s work. “He did a very good job when he was in the White House,” Trump told reporters.  Journalists and critics noted the President said nothing about the victims of Porter’s alleged conduct.

No Entitlement 

Because no one has a constitutional right to work in the White House or any other agency requiring a security clearance, we have no trouble concluding Porter was treated fair and, therefore, received what we’ll call due process.  The FBI investigated the claims against him and reported them to the agency involved – the Executive Office of the President.  Leaving aside the question of when it acted, having received that information, the White House properly dismissed Porter (or accepted his resignation).  Porter’s alleged actions made him unfit to handle sensitive, sometimes classified, information.  Abuse charges, aside from the immorality and deficient character they potentially demonstrated, left Porter susceptible to blackmail, not to mention criminal and civil process.  We have no difficulty in saying (1) he had to go and (2) he was treated fairly.

What, you ask, about his denials?  Porter retains his presumed innocence in any criminal proceeding and he can require that his accusers prove his culpability by a preponderance of the evidence in civil cases they might bring.  The information developed in the FBI probe likely would become part of those proceedings and the fact finders would consider all the evidence. But that’s different than whether he gets to work at the White House.  Neither Porter, nor anyone else, is entitled to a White House job.  We believe Porter got what amounted to due process and coming to that conclusion wasn’t especially difficult. 

Donald Trump, Donald Trump, Donald Trump 

If Porter’s alleged transgressions cost him appointment to a White House job, partly because of the risk of someone blackmailing him, what of credible claims of sexual harassment against President Trump?  Aren’t the claims against him just as credible as those against Porter?  Isn’t the President as vulnerable to blackmail as Porter?  Should the fact of Trump’s election as President put the allegations against him in our political rear view mirror?  Must Trump’s fate await the outcome of the Mueller investigation?  We’ll have more to say about these important questions later, but for now, we close the book on Porter.

There are other kinds of cases  

Porter’s case differs from others the country has seen or will see in the #MeToo era.  Many people charged with sexual harassment don’t have to undergo FBI background checks.  The facts never get developed in the same way.  What’s appropriate in those situations?  Many sexual harassment incidents occur in the private sector, in jobs that don’t involve the public trust.  Do the standards applicable to government positions apply the same way there?  What’s the difference, if any, between big corporations and small businesses?  Does the same regime apply to the corner mom and pop grocery story as to IBM?  What about conduct occurring outside the work place that still impacts employment?   What process is due when a man (or woman) allegedly misbehaves toward another person in a social setting, but an employer or business contact must decide a response?

Some cases mostly concern how the public views the alleged abuser/harasser. What happens to the service station attendant, plumber, teacher, or other professional who aggressively pursues sexual conquests?   What constitutes due process or fairness in those situations?  Such instances, we think, present harder cases than the Porter affair.  Please give us your thoughts as we tackle those issues.