The Select Subcommittee on the Coronavirus Pandemic has referred former New York Governor Andrew Cuomo to the DOJ (Department of Justice) for criminal prosecution. The committee’s X page said, “Evidence suggests Andrew Cuomo knowingly and willfully made materially false statements about New York’s COVID-19 nursing home disaster and the ensuing cover-up.”

The letter signed by Chairman Brad Wenstrup to the US Attorney General Merrick Garland states, “As explained in the attached referral, Mr. Cuomo made multiple criminally false statements, including that he was neither involved in the drafting nor the review of the July 6 Report. Documents establish that statement to be false. Mr. Cuomo also testified that he did not have any discussions about the July 6 Report being peer-reviewed. Documents show that statement to be false. And Mr. Cuomo testified that he did not know whether the July 6 Report was reviewed by persons outside of the NYSDOH. Documents again demonstrate that statement to be false.”

The HighWire reported on Cuomo’s testimony to the subcommittee in September. He was questioned regarding a state policy that required nursing homes to house individuals who tested positive for COVID-19. During that hearing, Rep Elise Stefanik said the policy was responsible for the unnecessary deaths of 15,000 elderly people in New York.

Cuomo allegedly lied about his involvement with a report written by the New York State Department of Health. During a closed-door hearing with the subcommittee, Cuomo said he did not recall reviewing the document. An email from Cuomo’s assistant in June 2020 reveals that the former Governor asked for the report to emphasize that “community spread among employees or possibly visitation by family and friends were relevant factors” that contributed to the nursing home deaths.

Cuomo’s spokesperson, Richard Azzopardi denied the accusation that the former Governor lied to Congress. “The governor said he didn’t recall because he didn’t recall,” Azzopardi said. “The committee lied in their referral just as they have been lying to the public and the press.” 

Cuomo and his legal team also sent a letter to AG Garland to call for an investigation of an alleged misuse of government resources. The letter argues that the subcommittee does not have jurisdiction or authority over a state’s internal regulatory advisory. The letter also accuses Chairman Wenstrup of colluding with other members of the subcommittee with Janice Dean, who appears regularly on Fox News and the show “Fox & Friends.”

Dean’s husband, Sean Newman, is a plaintiff in a lawsuit against Cuomo that alleges the controversial nursing home policy caused the deaths of Newman’s mother and father. Cuomo’s letter to the DOJ shows a picture of Wenstrup hugging Janice Dean following the hearing when the subcommittee questioned Cuomo.

The lawsuit was dismissed on September 30, and Dean posted to X the next day. She said, “Pay attention to what happens next.” Cuomo’s legal team alleges Dean had insider information about what the subcommittee would do next.

The subcommittee countered the claim it doesn’t have the authority to investigate Cuomo’s nursing home policies during the pandemic. The subcommittee claims it can investigate “the efficiency, effectiveness, and transparency of the use of taxpayer funds” and “executive branch policies, deliberations, decisions, activities, and internal and external communications related to the coronavirus pandemic.”

The letter signed by Chairman Wenstrup spans 104 pages, including the alleged evidence that Cuomo lied while speaking to Congress. The document starts by laying out the nature of the investigation and the testimonies of Cuomo in front of the subcommittee.

The document states that Cuomo was aware that making false statements to Congress was a crime. The following section describes how he “knowingly and willfully made materially false statements” during his testimony. The document states that Cuomo’s statements violate 18 USC § 1001. Finally, the document argues that Cuomo has no valid defense for his allegedly false statements in front of Congress.

On March 25, 2020, New York issued the directive “No resident shall be denied re-admission or admission to [a nursing home] solely based on a confirmed or suspected diagnosis of COVID-19. [Nursing homes] are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or re-admission.”

The select subcommittee sent letters to four governors in June 2020 requesting data regarding similar nursing home directives. The letters were sent to New Jersey Governor Phil Murphy, Michigan Governor Gretchen Whitmer, Pennsylvania Governor Tom Wolf, and Governor Cuomo.

The select subcommittee said the governors were not cooperating with the request for information. On X, the subcommittee wrote that state senators in Michigan voted for a resolution to condemn Governor Whitmer’s “deadly nursing home order” but said members of the subcommittee “refuse to investigate it.” 

In August 2020, the DOJ sent out letters to four governors that issued nursing home directives that “may have resulted in the deaths of thousands of elderly nursing home residents.” The DOJ said this data would help the agency determine if a further investigation is necessary for a potential violation of the Civil Rights of Institutionalized Persons Act (CRIPA)

The letters requested data related to nursing homes and COVID-19 to help determine whether the DOJ should initiate an investigation of the Civil Rights of Institutionalized Persons Act (CRIPA). The DOJ never initiated an investigation of the governors for the nursing home directive.

While the latest criminal referral for former Governor Cuomo stems from the investigation into his pandemic-era nursing home policy, the prosecution request is not for implementing the policy itself but for allegedly lying during his testimony to the subcommittee. Other governors who issued similar directives during the pandemic have not been called to testify before the select subcommittee.