NEW YORK NOW - While calls for Gov. Andrew Cuomo to either resign or be impeached continue to grow, a third option has emerged among some Democrats that would remove him from power — but allow him to reascend to the office if he’s ultimately cleared of misconduct.
The idea would be for Cuomo to temporarily step aside and cede his power to Lt. Gov. Kathy Hochul — but that may not be legal under the state constitution, experts say.
The idea is supported by a handful of Democrats, including Assembly member John McDonald, who represents a district in the Albany area. In a statement Wednesday evening, McDonald proposed the solution, but he hasn’t been the first.
“I believe it is in the best interest of our State if Lieutenant Governor Kathy Hochul serves as Acting Governor until the Attorney General’s investigations or any other potential inquiries reach a conclusion or a removal determination under the law is made,” McDonald said.
At the federal level, there’s a provision of the U.S. Constitution that allows the Vice President and the cabinet to remove the president — albeit temporarily — if they’re unable to discharge the duties of the office.
Some Democrats in Congress pushed the provision earlier this year in the final weeks of former President Donald Trump's time in office as a way to remove him from power following the insurrection of the U.S. Capitol in January.
That would have resulted in Vice President Mike Pence ascending to the presidency in the final weeks of the administration, effectively removing Trump from office without an impeachment.
But New York, unlike the federal government, doesn’t have such a provision in its state constitution. That’s where things get messy.
For the most part, the transfer of power between a governor and a lieutenant governor is straightforward.
If Cuomo leaves the state, Lt. Gov. Kathy Hochul takes his place until he returns. If Cuomo dies, resigns, or is removed from office by the Legislature, Hochul would also take his place. If Cuomo is incapacitated, or goes missing, Hochul would become governor in the meantime.
But it’s unclear if Cuomo, as some lawmakers have suggested, could voluntarily cede his power to Hochul, and later take it back if he’s cleared of misconduct.
And the state constitution doesn’t give a clear answer, which is where the statute becomes ambiguous.
The relevant part of the state constitution, Article IV §5, reads that Hochul would become the acting governor if Cuomo is “otherwise unable to discharge the powers and duties of the office of governor.”
That sounds simple, but it’s not. The state constitution doesn't clarify how a decision would be made on Cuomo’s ability to discharge “the powers and duties of the office,” meaning neither Hochul, his cabinet, nor the Legislature have the legal authority to make that decision.
“They have no constitutional basis for forcing him,” said Peter Gaile, an expert on the state constitution and professor emeritus of political science at Canisius College. “There are no answers.”
That’s because New York has never been faced with this situation. The last governor that faced calls to step down was Eliot Spitzer, who resigned without an investigation into his conduct. The last, and only, impeachment in New York happened more than a century ago.
Aside from complete incapacitation, it’s possible that an interpretation of whether Cuomo’s able to discharge the duties of his office would have to come from the governor himself. And even in that case, his interpretation may have to be limited, Gaile said.
“That’s never happened,” Gaile said. “That’s a reasonable interpretation of that provision.”
If Cuomo were, to say, announce that he couldn’t continue to serve for health reasons, that would be one thing. But it may not be legal for him to temporarily step aside due to the series of scandals that have engulfed his administration.
“There’s nothing that would specify that the governor could voluntarily step down and grant the powers of running the state to the lieutenant governor,” said Michael Hutter, a professor at Albany Law School and special counsel at the law firm Powers & Santola.
If push comes to shove, it’s possible that Cuomo could make an attempt at stepping aside temporarily, using the state constitution as a shield, but that decision could face a legal challenge, Hutter said.
“It’s simple to say nobody ever envisioned a situation where the governor would want to step aside temporarily,” Hutter said. “You either gun it out or resign.”
It’s possible that a lawsuit against a decision from Cuomo to step aside temporarily could result in his favor, but it’s also not unlikely, experts said, that the state Court of Appeals — New York’s highest court — would interpret that statute differently.
Those are all questions that have never been considered by the state’s highest court, so any decision would set a major precedent for future administrations in New York. That’s all assuming Cuomo doesn’t resign and isn’t impeached.
Cuomo, who’s currently facing scrutiny over multiple claims of sexual harassment, his administration’s handling of nursing homes, and the structural integrity of the Mario M. Cuomo Bridge, has said he’s not planning to resign.
Cuomo has denied that he inappropriately touched anyone while in office, and has vigorously defended the decisions his administration made in regards to nursing homes during the COVID-19 pandemic.
The New York Attorney General’s Office has selected a pair of independent, nonpolitical lawyers to lead an investigation into claims of sexual harassment made against Cuomo in recent weeks, and federal prosecutors are looking into his team’s handling of nursing homes.
The timeline of those investigations is unclear, and some Democrats have called on their colleagues to reserve judgement until the results of either investigation.
Another faction of Democrats has joined Republicans in calling for the Legislature to remove Cuomo through impeachment, but it’s unclear if that plan will move forward, and under what basis. Lawmakers also have to negotiate a $190 billion state budget this month.
That could delay impeachment proceedings, if lawmakers go that route, in favor of budget talks, which usually consume the majority of the Legislature’s time during March.