Legal Analysis of CBS Interview with Governor Andrew Cuomo’s Accuser and the Resignation of Melissa DeRosa

The New York State Assembly’s Judiciary Committee met behind closed doors today to discuss the recent sexual harassment report from Attorney General Letitia James and to review the next steps in the process of a potential impeachment of Governor Andrew Cuomo.

Following the Judiciary Committee’s meeting, New York Assembly Speaker Carl Heastie and Judiciary Committee Chair Charles Levine held a press conference to discuss the impeachment probe as well as the potential timeline to move forward with impeachment.

WIVB News 4’s coverage of the sexual harassment investigation into New York Governor Andrew Cuomo continued with anchor Jacquie Walker interviewing attorney Barry Covert. In their interview, Mr. Covert weighs in on:

  • the timeline for the state legislature’s investigation into Gov. Andrew Cuomo;
  • the impact of the CBS interview with “Executive Assistant #1”; and
  • the potential impact of Melissa DeRosa’s resignation from the governor’s office.

Continuing reading for portions of Barry Covert’s comments and click the video below to watch the full interview with WIVB’s Jacquie Walker.

Let’s start with the interview that came out over the weekend. I’m sure you’ve heard the interview from “Executive Assistant #1.” So, as an attorney who has handled a number of sexual harassment cases, how did you view the answers coming from Brittany Commisso?

BNC: She was a compelling figure. So, my initial impression is that she comes across very well. She’s very articulate, very well spoken. She has very good reasoning for what she did. When she did it. When she reported it. When she didn’t report it. How the two different events of the day occur, the two different days that the sexual assault occurred.

The one thing though I keep in the back of my mind as a defense lawyer, if Governor Cuomo were my client, is – it was a very friendly interview. So, I have not seen her get anything close to a cross examination yet.

Initially I’d be watching that saying “eh” that’s going to be a good witness against us. But, she has not been tested yet in any way by a critical media event that would be more similar to a cross examination. Because, if they do proceed with charges, she is going to be crossed examined by very good defense lawyers. And what you saw today would be more akin to her direct testimony, not how she performs on cross examination.

As an attorney, you’re watching her speaking. Is it different if you read what she says versus seeing her say it in person?

BNC: It’s always very different. The transcript is never the same as when you see someone in person. And the courts have always recognized that. That’s why judges are loathed to overturn jury verdicts. Because they’re doing so based upon transcripts as opposed to what the jury saw, the demeanor of the witness, the credibility, the body language, the eye contact, the hesitancy to testify. So, in this case, yes, the transcript is always going to be very different. She came across, watching her visually, very well. Very articulate young lady, very sympathetic young lady. But again, because the governor is presumed to be innocent and they have to prove the case beyond a reasonable doubt, we don’t know how she’s going to hold up on cross examination. These are all very friendly questions she’s receiving.

What about the impeachment investigation? Does this interview play any role in the impeachment investigation?

BNC: I would think it would have a very strong role. Because in the impeachment in New York State, as opposed to a federal impeachment of a President, there is no definition at all, there’s no serious crimes and misdemeanors here. So, impeachment can be brought for whatever reason the assembly wants. And when you have a very nice, sympathetic, articulate young lady like her telling a very cogent story, even though she has not been cross examined, that leads to momentum for the Assembly and eventually for the Senate to take action against the governor. Which is really unfair because at that point she has not been cross examined, but there’s going to be a lot of public outcry saying ‘look at this young lady, she comes across so well, she tells a very good story’ and she does. But, she has not been examined critically yet. And that’s really the key from a defense attorney’s point of view, even the lawyers that are defending the governor in the impeachment proceedings is, how is she going to hold up? And the one thing to keep in mind is I want her to keep getting interviewed. Keep getting interview. The more you say, the more chance that you are going to say something that is inconsistent with the prior version you gave. So, keep talking. If I’m an attorney defending Governor Cuomo, I want her to keep talking until the cows come home. Because then I’m going to take every transcript of everything she ever said and hopefully point out that ‘wait a minute, you said this on this date but now you’ve changed it to this version on this date.’ So the more she says the more dangerous it is from the prosecution’s point of view.

The Secretary to the Governor, Melissa DeRosa has resigned? Does it have any influence in this investigation that the Governor’s closest confidant is now out?

BNC: Again, when we’re talking about momentum, both on the criminal prosecution side and the Assembly and what they’re going to do with respect to impeachment, I think it assists the momentum of the prosecution of the governor because it appears as though a head lieutenant, a top person who has been defending him for years and years seems to be stepping away right when Executive #1 came forward and verbally gave her version of what occurred on two different occasions in relation to the governor. I think it’s very harmful to the governor.

Melissa DeRosa is alleged to have carried out retaliation against people who came forward speaking out against the governor. Are there any legal means that she can be punished for that?

BNC: Criminally, it would be very difficult. Civilly, absolutely. Because she is assisting in retaliating against somebody who has come forward now on sexual harassment allegations. So, she is now part of the conspiracy to try to cover it up. And, your civil liability can be very real when it comes to her case. She may well have stepped down to now want to potentially assist in the civil actions against the governor to get herself out of harm’s way. This is pure speculation. We don’t know why she stepped down. But, you can imagine that she is now going back through her mind and looking at every action that she took on behalf of the governor in the last five years. As highlighted by the report from the attorney general’s office and looking at that saying ‘I better get myself away from the governor. If I need to assist the prosecutors I may have to do that not only to clear my name in the public but also to assist myself with respect to any future lawsuit.’

BNC: Every movement or failure to move on any given case can be twisted and interpreted to be pertinent to the legal strategy that the lawyers want to follow or that the person wants to follow. So, you really have to watch every little move.