‘It’s a Kill Shot’: How Tish James Holds Cuomo’s Future In Her Hands

‘It’s a Kill Shot’: How Tish James Holds Cuomo’s Future In Her HandsMarch 10, 2021

ALBANY – There was a time not too long ago when Letitia “Tish” James’s tenure as New York attorney general was defined by one thing — the utter certitude with which she vowed to hold Donald Trump accountable for his political, personal and corporate offenses.

Now, the 62-year-old James is known for something else: Her decision to confront her own political patron, New York Gov. Andrew Cuomo, over his handling of nursing-home deaths and then stiff-arm his attempts to maintain control of an investigation into his own behavior in office.

Suddenly, one of the state’s most underestimated politicians may be holding the future of New York politics in her hands, even while she herself gets mentioned as a possible gubernatorial candidate. Meanwhile, Empire State pols are scrambling to reassess a woman who’s a mystery to many outside of her willingness to take on the former president.

“I’m running for attorney general because I will never be afraid to challenge this illegitimate president when our fundamental rights are at stake,” James declared in an eye-catching 2018 campaign video. “He should be charged with obstructing justice. I believe that the president of these United States can be indicted for criminal offenses and we would join with law enforcement and other attorneys general across the nation in removing this president from office.”

At the time, the Brooklyn-born James was New York City’s public advocate, a post she won after a decade navigating Big Apple politics on the City Council. Though New York City elected officials frequently have trouble winning statewide, her anti-Trump message, along with a warm endorsement from the powerful, soon-to-be three-term governor, was enough to make her the first Black person to serve as New York’s top law-enforcement officer.

Fast forward two years to Jan 28, little more than a week after Trump exited the White House. James released a report accusing Cuomo’s administration of undercounting the true death toll from Covid-19 in nursing homes, striking at one of the governor’s most sensitive pressure points over the course of the pandemic.

The nursing-home probe had been ordered by the Cuomo administration itself when Covid-19 cases began to spike, but was all but forgotten as many political insiders regarded it as the kind of investigation in which a sympathetic AG could disguise any bad news amid caveats and contradictory findings. To their surprise — and the governor’s — the 76-page report was frank in its tone and clear in its assessment that the way the Cuomo administration tallied Covid-19 deaths in state nursing homes served to mask the true toll.

Some operatives saw James’s move as a declaration of independence from the party establishment, along with an attempt to revise her anti-Trump image into that of an all-purpose legal crusader.

There is evidence to support that interpretation: In recent months, she has sued the National Rifle Association in an effort to dissolve it entirely and the New York City Police Department, calling its chaotic handling of Black Lives Matter protests against police brutality last summer a civil rights offense.

Those cases, along with her nursing-home report and a wide-ranging probe of Trump and his family for allegedly misstating the values of their properties to obtain tax benefits, were a reminder of the force the New York AG’s office had been under her star-crossed predecessors including Eliot Spitzer, Eric Schneiderman and Cuomo himself.

But it is another predecessor, Robert Abrams, whom James terms her mentor, and credits with advising her to identify with grassroots voters rather than the Albany power elites. James said in an interview that her low profile among the state’s power elites is deliberate.

“It’s a priority of mine to stay close to the ground and to be humble and to identify with people,” James said in an interview with POLITICO shortly before she released the nursing-home report. “I never want to lose that quality — never, ever. So I will not be in my white ivory tower. I will be on the ground with the people always and forever. It’s important that I be reminded about the pain and the struggle of New Yorkers. And that I not be removed from those who elevated me.”

James’s defenders scoff at the idea that she blindsided Cuomo, noting that the governor’s office should have been expecting the nursing home report he himself ordered. But other state officials and labor groups said the attorney general’s office had reached out to them hours or even days in advance to prepare responses to the bombshell she was about to drop.

Cuomo’s forces responded by calling James’s use of the term “undercount” factually inaccurate, while seeking to lower the temperature by stressing their shared agreement with other findings of systemic failures in nursing homes.

That might mask their true feelings — a sense of distrust that takes on greater relevance with James appointing a formidable pair of investigators to probe women’s complaints of sexual harassment by Cuomo.

It doesn’t necessarily matter what James’s intentions in releasing the nursing-home report may have been, said several current and former Cuomo aides, having watched the scandal snowball amid demands for a federal probe and threats of a primary challenge to the once-invincible governor.

“It’s a kill shot,” said one person who is now involved in New York City politics. “Or at least that’s how the governor’s people will see it.”

And now James is overseeing a probe that could determine whether Cuomo keeps his job.

Like a fair number of top New York politicians, James keeps a veil over her personal life, preferring to identify with her public role. Unlike most of those politicians, however, schmoozing and self-aggrandizing — especially in Albany — don’t appear to be a preferred pastime.

She still lives close to where she was born in Park Slope, Brooklyn, in 1958, one of eight children to parents who started out as maintenance workers after leaving a life of sharecropping in the South.

“Some of my brothers and sisters made it and some didn’t,” she told Association for a Better New York’s CEO Melva Miller in an interview last year.

Her first memory of the legal system, she said, was watching a court officer rudely dismiss a request by her mother at a hearing for her brother who was wrongly accused of a crime. She and her family remain protective of one another, those close to her say.

Shortly after she became attorney general, her sister, Loretta James, retired from her role as NYPD detective, “to avoid tension” after “some comments were being made,” James told City & State in 2019.

“Her circle is very private,” said Lupe Todd-Medina, a political consultant who has known James for years and considers her a friend. “And I think because of that she’s been able to maneuver the political world and the elected official world, and being around the New York City media market in a very intense way. She’s got very close friends, very close family, and they protect her.”

“I still see her in the neighborhood,” said Todd-Medina, who is also from Brooklyn. “Here in the community, she’s still Tish, and a credit to her that she’s been able to keep that balance that many have not been able to do.”

James attended public schools and graduated from Fort Hamilton High School and Lehman College in the Bronx, before earning her law degree at Howard University. Over the next decade she worked as a public defender for the Legal Aid society, and built a grassroots political network advocating for early childhood education and welfare reform. She briefly led then-attorney general Eliot Spitzer’s Brooklyn office before launching her first bid for city council in 2001.

James lost that race by 14 percentage points to James E. Davis, a 39-year-old former police officer and well-known community activist, but two years later, the seat reopened in a shocking manner: Davis was shot to death by a neighborhood political rival on the floor of City Hall. Davis had escorted the man into the council chamber, intending to recognize him from the balcony during a council debate. In an ensuing shootout, Davis was murdered and the killer ended up dead.

Davis’s brother, Geoffrey, announced plans to run for the seat in memory of the slain councilman. James challenged him as the nominee of the progressive Working Families Party. Geoffrey Davis’s candidacy was tarnished by convictions for soliciting a prostitute and for nonpayment of child support, and James cruised to victory with nearly 77 percent of the vote.

On the city council, she quickly gained a reputation as a tireless advocate for her constituents, particularly when city services were involved.

Stu Loeser, longtime communications guru for former New York City Mayor Mike Bloomberg, remembers James made a habit of “spontaneously” running into him or others on Bloomberg’s top staff on the steps of City Hall.

“I would say, ‘Hello, councilwoman, how are you?’” Loeser recalled. “And she would say, ‘You know, I’m not great. Because there’s a water fountain in Fort Greene Park that’s been broken, and we keep calling but can’t get it fixed. I’m wondering, can you get it fixed? Or do you not have enough juice to get a water fountain fixed?’”

James’s response in January to Loeser’s recollection?: “Yes, I used to have ‘an office’ on the steps to City Hall. It was rather effective.”

She was reelected by large margins, and became one of the most outspoken progressive critics of Bloomberg’s administration, which was known for its grand public-works projects more than its housing or social services.

When Bloomberg, joined by many Brooklyn political leaders, supported the construction of a new arena to attract the New Jersey Nets basketball franchise — exciting local fans and the business community alike by bringing the National Basketball Association to the borough — James objected to the use of eminent domain to take her constituents’ property.

In 2013, when her progressive ally Bill de Blasio ran to succeed Bloomberg as mayor, she contended for his old post as the city’s public advocate, a job notable not so much for its raw political power as the megaphone it provides as one of the city’s three citywide offices.

On the campaign trail, running as a Democrat, she faced early embarrassment when reporters discovered she’d been lying about her age by four years since she began vying for public office. Nonetheless, the political damage proved to be slight. Her victory in the runoff election made her the first Black woman to hold citywide office in New York City.

On the day she was inaugurated, she faced blowback for taking credit for a New York Times series on homelessness, a claim debunked by the Times, which said she’d played no role in the story. A spokesman at the time called her comments “hyperbole.”

Thereafter, however, she managed to steer clear of the kinds of tabloid-worthy scandals that dog many citywide politicians. Serving as public advocate gave her a chance to develop compelling oratory to complement her on-the-ground rapport with advocates.

She used the office to introduce and help pass several pieces of legislation in the City Council, particularly around issues of gender equity. She attempted to flex the office’s litigation abilities, particularly when it came to housing issues, but her authority was limited and results were mixed.

After an overwhelming reelection in 2017, James openly touted a future mayoral run and joined a long list of city politicians expected to spend the ensuing four years prepping to become de Blasio’s successor as mayor.

The following year, however, state politics was upended when then-Attorney General Eric Schneiderman resigned in disgrace after being accused of abusing and threatening four women. His top deputy, solicitor general Barbara Underwood, was chosen by the legislature to fill the post for the remainder of the year, but refused to seek the permanent job.

Underwood thrilled New York liberals by suing Trump’s charitable foundation for an alleged pattern of illegalities, from using its tax-free funds to pay off business debts to buying portraits of himself to providing giveaways at political rallies. In the roughly seven months of Underwood’s authority, Trump agreed to close the foundation and disperse its assets to approved charities.

With Cuomo’s backing, James defeated liberal law professor Zephyr Teachout to claim the Democratic Party’s nomination and went on to win easily in the general election that November, becoming Schneiderman’s permanent successor.

Suddenly, she was a statewide figure, only the second person of color to be elected as such. Former state Comptroller H. Carl McCall was the first, back in 1994. Former acting Gov. David Paterson was elected lieutenant governor on a ticket with Spitzer.

True to her word, she led or joined at least 76 challenges against the Trump administration, on consumer, investor, environmental protection, and immigration issues. James says her office had an 85 percent success rate, and plans to work with the Biden administration to reverse any of the consequences of the 15 percent that didn’t pan out.

New York’s attorney generals have tended to be big personalities with high profiles who relish the power of an office with nearly 700 lawyers and vast prosecutorial powers. They have gone on to greatness or come to shocking ends — sometimes both. Cuomo and Spitzer became governor. Spitzer and Schneiderman crashed in scandal.

Excited by James’s tough-talk about Trump, many New Yorkers anticipated she would eagerly fill the larger-than-life profile.

It didn’t play out quite as they expected.

Supporters who expected her to burst out of the gate in an amplified version of Tish the Public Advocate said they were initially frustrated. Some activists for marginalized communities say they thought her office wasn’t as responsive to their causes as they had hoped. James had already announced she wouldn’t don Spitzer’s moniker as the “Sheriff of Wall Street,” but some liberals expected more in the way of financial oversight.

“I think as a councilperson and as public advocate, she was one of the most aggressive, outspoken people on many of the progressive priorities across the city,” director of New York Communities for Change Jonathan Westin said in August. “And I think we’ve seen her role as AG take a bit of step back from who she was as a councilmember and public advocate.”

“I know there’s some good staff and some good people; I’m just not seeing a lot of movement on taking on the financial influence in New York,” he said at the time.

Former staff members of the AG’s office say they worried that James’s focus on challenging the Trump administration came at the expense of more prosaic, but no less important, matters closer to home. It wasn’t a question of whether the office’s many veteran attorneys were covering the office’s bread and butter duties (decidedly less sexy work like auto insurance fraud and defending the state in regular lawsuits), said Amy Spitalnick, who was a communications director for Schneiderman and continued on in that role and as a senior policy advisor when Underwood took over.

“There’s so much that office is doing — and I suspect that’s all still happening,” Spitalnick said, also in August. “It’s just a question of whether you’re prioritizing, publicizing and owning it like you do with the Trump stuff.“

James had promised to tackle corruption at the highest levels of state government. But the support she enjoyed from the governor contrasted with the fireworks that marked the Cuomo-Schneiderman relationship, which included repeated attempts at one-upsmanship, accusations of spotlight stealing and even jabs about physical appearances.

“We would make stories, news and press outside of him, which he hated,” a former Schneiderman staffer said last summer of Cuomo. “He was constantly worried about what we were doing. He never has to worry about what this [James] office is doing, and more importantly, it’s a little more of a command and control, at least that’s the perception people have.”

That perspective traveled quietly among Democratic circles during the first two years of her tenure, but James, in her January interview with POLITICO, offered a tantalizing clue that things were about to change. What Albany’s chorus of ex-officials saw as an unshakeable Cuomo alliance, she explained, extended mainly to countering the Trump administration.

“Governor Cuomo and I have had a common enemy in the federal government and its treatment of New Yorkers,” she said. “And I would remind individuals that I am an independently elected official, and I take my job seriously. And the tension between Governor Cuomo and I, if there is any tension, we keep it between the two of us.”

Within days of that interview, the book on James would begin a new chapter, with the release of the nursing-home report. And some of the same people who were skeptical of her now say they admire her independence.

“The word political sleeper comes to mind,” said one Democratic operative within the Cuomo administration who watched James’s trajectory for the past several years. “She will do exactly what she has to do, nothing more, nothing less. Some say she plays checkers not chess, but I don’t think that’s fair. She’s savvy, thoughtful, tough and loyal — all those qualities make for a good attorney general.”

Trump’s departure opened an unpredictable phase in James’s career as AG, removing the common enemy that held New York’s fractious Democrats together and also giving new importance to the role in which her lawsuits might play in Trump’s promises of a comeback.

Political observers across the nation portray her as one of two prosecutors — Manhattan District Attorney Cy Vance is the other — who might have something to say about how, or where, Trump spends his post-presidential years. James is investigating the Trump Organization over allegations that it misrepresented the values of some of the company’s properties to obtain loans and tax breaks.

For Trump critics, the scrutiny is not only fair but overdue — proof that even the richest and most powerful must bow to the law — and catnip to those liberals who watched Trump manipulate banks and investors, and then adapt the same practices to politics.

To Trump’s defenders, the investigation is a politically motivated fraud. Some uneasy legal traditionalists worry that James was signaling the same kind of misuse of prosecutorial discretion that Trump and his attorney general, William Barr, were often accused of: Choosing a target before finding a crime.

At times, critics have asserted James has seemed caught between those complaints and liberals’ demands for quicker action, animated by the fear that Trump’s business dealings with prominent New Yorkers with Democratic ties might shield him from scrutiny.

“We have a crisis of inaction among Democratic elected officials,” said Jed Shugerman, a Fordham law professor, author and co-writer on amicus briefs challenging the Trump administration.

Shugerman has argued that state and federal Democrats have had sufficient tools and strategies to prosecute Trump and his business ventures for years, but have held off for political calculations.

“Everything now should be viewed through the lens of a delay tactic,” he said. “There is no good excuse for why there is still inaction.”

James’s response is to portray her investigation as thorough and fair, regardless of her subject’s title. Speaking in January, while the U.S. House of Representatives was voting on its second impeachment of Trump, James said her probe will continue full bore, and emphasized that Trump’s political status will play no role in its outcome.

“There is no difference,” James said. “President or not, our investigation will continue and if we uncover criminal conduct, that will change the posture of our case. But external factors have no impact on the strategy of our case and its process.”

She declined to speculate whether Trump could be hauled in as a potential witness, but she also didn’t rule out that possibility.

“In the event that the posture of our case changes, and if it involves any conduct as it involves Donald Trump as president and or as a private citizen, he would certainly be called in to testify,” she said.

So was she watching the impeachment vote? “No,” she said. “There are other matters going on in New York.”

People who knew James before her time as attorney general — amounting to more than two dozen friends, critics and political observers — said that her low-key posture is more a matter of style than substance. It’s partly the result of being the only woman of color in a statewide political elite dominated by white males, said Todd-Medina.

“If she were to act like them and be that aggressive, then she’d be a ‘bitch’ right?” Todd-Medina said. “So she’s not doing that and she’s soft? She’s damned if she do and she’s damned if she don’t. But what I will say: She’s always been driven, and I haven’t seen much difference from her [since becoming attorney general].”

It’s also reflected in her resistance to glad-handing and grandstanding. Even before Covid-19, she was an unusually rare presence in the state capital and often seemed cautious — even shy — at events in Albany.

She showed a decidedly different side at a Rochester news conference following the death of a mentally ill Black man, Daniel Prude, while in police custody. She promised protesters in an emotional address to change the narrative for communities where it’s easier “to get a gun than a piece of fruit.”

“It was important for me to be there to talk to individuals, to talk to the family, and to relate to them,” she said during the January interview. “Particularly as an African American, who has been to a fair share of funerals, I understand that pain.”

The results of her office’s probe — which prompted a grand jury that last month cleared the seven officers involved — left her “extremely disappointed,” she said, while promising the community again she would be “unshakeable” in a fight for a more just legal system.

Many observers see James’s style as a corrective to the braggadocious behavior seen on the state and national level in recent years. After Spitzer, Cuomo and Schneiderman, a dose of circumspection might be just what the AG’s office needs, said Loeser, the longtime Bloomberg aide.

“She’s gone up against the most powerful person in the world, and from what we know he hasn’t won a single round in court or a round on Twitter against her,” Loeser said. “And we have not seen a single story of a dumb thing that has come out of the attorney general’s office or a hypocrisy where someone’s dropped a dime on her.”

James now enters a somewhat fresh phase of her tenure — with a lot on her plate and a bold claim that she’ll do it in her own way. It’s energizing skeptics who had worried she was blowing smoke when she promised that the establishment Democrats who backed her would not escape her purview, if warranted.

The nursing-home report that so riled Cuomo followed another direct big move just weeks earlier: James sued New York City Police department for its response to the George Floyd protests in the summer of 2020. She publicly criticized de Blasio and police leadership while recommending federal oversight of the department.

It may or may not be the prescription for true change within the NYPD, said Neal Kwatra, a political consultant and former Schneiderman aide who has also advised both de Blasio and Cuomo, remarked at the time. But it was a “vitally important signal about the profound need for reform within the NYPD and hopefully heralds a new aggressiveness from her office on critical challenges,” he said in January.

She also gained national attention for her move to dissolve the National Rifle Association, a legal case that is still moving forward despite the NRA declaring bankruptcy, James said. Conceptually, at least, it follows a similar structure to the Trump Foundation takedown that Underwood executed.

James sued Amazon last month for its treatment of workers during the pandemic, is co-leading an antitrust suit against Facebook and part of similar action against Google. Antitrust is a space where New York could lead, she said, but has not yet been at the forefront of the state’s agenda.

While all these cases have garnered attention, James has yet to signal a specific priority with the urgency with which she vowed to counter Trump during her first two years in office. Her immediate predecessors each emphasized favorite issues or causes — student loans, Wall Street, foreclosure policies — reflecting their own priorities or what was trending in the news cycle at the time.

“At some point in time, as [Trump] becomes a more distant occupant of the White House, and new and more current issues make themselves evident, the Trump focus will wane, and the resources of the office that have been employed against Trump will have to be redirected,” said Dennis Vacco, the state’s last Republican attorney general, who was in office from 1995 to 1998 under Gov. George Pataki. “But how are they redirected? I’ll say one thing for sure, I don’t believe that they’re going to be redirected at the Biden administration.”

“The AG only has so much bandwidth,” countered one official who was part of Cuomo’s tenure as AG. “If your big marquee cases are something like the Trump charity case, it’s hard to even say ‘I’m also going to do a big case on the internet or consumer fraud or predatory lending.’ You’re probably working on them. But you’re not going to be out front on them.”

“I think that’s now going to shift,” the official added. “If I’m hearing Tish right, they’ll begin to alter that agenda, and what she does is position herself more as the people’s AG, and she is going to do a lot of those cases that go to the issue of systemic inequality.”

James herself puts it this way: “I am my own person and I have my own personality. So, you know, as I said during the campaign when people criticized me because I said I don’t want to be the ‘cop on Wall Street’ — I forget what that term was — all I am is what I have been and what I will be. And it’s quite different from my predecessors. And I don’t make any apologies for that.”

For now, however, James’s long-term goals for her office, and her effort to give clearer definition to her priorities, is taking a back seat to her role in policing Cuomo. The velocity with which the governor has gone from being among the most respected and invulnerable figures in national politics to fighting for his career has shocked much of Albany.

James’s nursing-home report started the reassessment of Cuomo, but her office’s investigation into allegations of harassment and inappropriate behavior will be the basis on which many of the state’s top Democrats say they’ll make a judgment about whether he should stay or go.

During the last weekend of February, after two women came forward alleging inappropriate behavior — soon to be joined by four more — Cuomo acknowledged that an investigation into his conduct was warranted, even as he maneuvered to avoid having James oversee the probe.

First, he floated the idea of his appointing a retired judge, who was a former law partner to one of his close advisers, to look into the matter. Then, after much blowback, he offered a plan to have James and Chief Judge Janet DiFiore of the New York Court of Appeals, a Cuomo appointee, jointly oversee a probe. But James refused to go along with it. Finally, Cuomo capitulated, sending a letter giving James full authority to handle the investigation.

On Monday, she appointed two heavy-hitters to probe the governor’s office conduct, including former federal prosecutor Joon Kim, who has previously investigated ethics complaints in Cuomo’s office and inner circle.

“We are committed to an independent and thorough investigation of the facts,” she said. “There is no question that they both have the knowledge and background necessary to lead this investigation and provide New Yorkers with the answers they deserve.”

Just a little more than a month earlier, there would have been doubts about whether James would really go hard at Cuomo. Her investigation has now put her in the spotlight for better or worse, said Hank Sheinkopf, a longtime Democratic political consultant.

“Now she is on notice, too,” he said. “There can be no politics in that report. The man being investigated is now someone who has made public contrition, said he is doing his best to move the state forward and has apologized for improper action. When someone does that, you don’t take them out with a machine gun.”

In theory, the investigation shouldn’t take long, former U.S. attorney Preet Bharara told CNN last week. But Bharara, who has quite a bit of experience investigating the Cuomo administration, said probing someone as accustomed to wielding the levers of power as Cuomo presents a unique challenge.

“One fact is always true, that if the person who is powerful who is being investigated has used their power or wants to use their power to intimidate witnesses or cause people to believe that there will be retribution and retaliation if they cross the person, in this case Andrew Cuomo, then that can cause people not to want to come forward,” Bharara said. “That can cause contemporaneous witnesses who may have information that some of these women have provided and to their credibility — to be afraid, particularly if they’re state employees.”

Back in 2018, Zephyr Teachout based her campaign against James in part on her closeness to the establishment — which meant Cuomo. Now, Teachout says, she has more confidence that James can be an independent arbiter.

“I think that the nursing home report was a really powerful moment showing that James was willing to stand up to Cuomo,” Teachout said in an interview, contrasting James’s conduct with Schneiderman’s decision in 2014 to allow Cuomo to disband the Moreland Commission, an anti-corruption body that sought to probe people close to the governor.

“And at a key moment, Schneiderman failed to exercise that independence,” Teachout said. “And at a key moment, James exercised that independence. So I think [James’s move] was a really good moment for New York, because we’ve had such centralized power. The report is really distressing. But it shows an example of what an AG can do. … And I will say, on the record, that I frankly was concerned about James’s closeness with the governor, and I was very impressed that she stood up to him there. That was a really powerful moment. And a good one for New York.”

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