In the last week, Governor Andrew Cuomo has accused at least two people of committing crimes. First, it was a Democratic State Senator on Monday.

“That’s a crime. That’s not raw politics,” he said.

Then, he accused Assemblyman Ron Kim on Wednesday, saying, “I do believe Ron Kim acted unethically, if not illegally.”

What You Need To Know

  • A federal investigation into data on nursing home deaths has put the Cuomo administration on notice

  • Past federal prosecutions in Albany have focused on Honest Services Fraud, but that seems unlikely here

  • Assembly Republicans are calling for the creation of an impeachment commission to investigate

But with news that the U.S. Attorney’s Office for the Eastern District is now probing the administration’s handling of nursing homes and the data regarding recorded deaths, it could result in members of Cuomo’s own administration being on the hot seat.

“I can’t think of a really prominent example that would arise directly out of a perhaps routine government request for information about a broad issue like health care," said defense attorney Joshua Colangelo-Bryan. "But some of these federal laws are very flexible, so it’s the sort of thing that could potentially come within that rubric, given the right facts.”

Speaking on background, several former prosecutors told NY1 that the administration’s filing of a report back in July exonerating the administration for its own policies on nursing homes could warrant a state charge of “offering a false instrument for filing.” 

That’s because the statistics used in that report were not complete, and a prosecutor could try and prove that there was a deliberate attempt to defraud.

But a federal case might prove tricky. The last two major Albany public corruption cases against former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos involved a charge of what’s known as honest services fraud. 

“Given what we have heard so far, which is not very much, which is not particularly extensive, it’s not clear how an honest services fraud theory would work,” added Colangelo-Bryan.

In a statement, a spokesman for Governor Cuomo said, “DOJ has been looking into this for months. We have been cooperating with them and we will continue to do so. We will have no further comment on this matter."

Separately, Assembly Republicans are looking to convene an impeachment commission to conduct an independent investigation, which does not necessarily need to result in a recommendation for impeachment. In that case, both parties would have subpoena power. Such a commission hasn’t been convened since 1913 when then-Governor William Sulzer was removed from office.

“We are happy that law enforcement, it appears that the Eastern District of New York, the U.S. Attorney is investigating, we are happy about that," said Will Barclay (R), Assembly minority leader. "But that doesn’t mean that the legislature needs or just sits on the sidelines waiting for that investigation. And that is why we think this vehicle is the best way to go.”

Assembly Republicans have very little chance of getting their commission off the ground without Democratic support. Republicans in the U.S. Senate are also calling for an independent investigation, but they too are in the minority now.