Garland promises Andrew Cuomo nursing homes investigation won't be led by someone with conflict of interest

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President Biden’s pick for attorney general largely avoided weighing in on the Justice Department’s investigation into New York Gov. Andrew Cuomo’s handling of nursing homes during the coronavirus pandemic, though he promised that no one with a conflict of interest would lead such an inquiry.

Judge Merrick Garland was pressed by Republican Sen. Ted Cruz during his confirmation hearing on Monday about the FBI and the Brooklyn federal prosecutor’s office investigation into Cuomo’s nursing home orders and reports of a possible cover-up of nursing home death data during the coronavirus pandemic.

“Nine senators wrote a letter to Chairman Durbin asking this committee to investigate Gov. Andrew Cuomo’s policies concerning COVID and sending COVID-positive individuals into nursing homes. A senior aide of his admitted to a cover-up to hide information from the Department of Justice,” Cruz said. “You’ve committed to a number of investigations here at this hearing today — will you commit to investigating the extent to which the government of New York broke laws or covered up their policies concerning COVID-positive patients in nursing homes?”

“With all these investigations, the Justice Department is open to evidence of fraud, false statements, violations of the law,” Garland replied. “They normally begin in the appropriate way in the relevant U.S. attorney’s office. And that is the way that something like this, without commenting on this in particular because I don’t know the facts, that’s the way it should go.”

Cuomo, a Democrat who wrote a book touting his handling of the health crisis, has come under heightened scrutiny in recent weeks, boosted by a New York attorney general investigation finding the governor’s administration obscured key data and issued directives that may have led to an increase in nursing home deaths. In addition, multiple media investigations have concluded that New York undercounted the number of coronavirus patients sent into nursing homes in New York, fueling calls by Republicans and an increasing number of Democrats for transparency and accountability.

Cuomo aide Melissa DeRosa told New York state legislators during a Zoom call this month that the Cuomo administration “froze” when the Justice Department and New York lawmakers both pressed for information last year “because then we were in a position where we weren’t sure if what we were going to give to the Department of Justice or what we give to you guys and what we start saying was going to be used against us, and we weren’t sure if there was going to be an investigation.”

“In this instance,” Cruz said, “the acting U.S. attorney is the mother-in-law of the senior official in the Cuomo administration that admitted to the cover-up.” He asked if Garland would “at least” commit not to have the Cuomo investigation led by someone who had a conflict of interest.

“Of course,” Garland said. “I don’t know any of the facts, but I can guarantee you that somebody with a conflict of interest will not be the person running an investigation of any kind.”

Multiple reports indicate that it is the U.S. Attorney’s Office for the Eastern District of New York currently handling the investigation, possibly because Audrey Strauss, the U.S. Attorney for the Southern District of New York, is DeRosa’s mother-in-law and would likely have to recuse herself from such an investigation into the Cuomo administration.

The Justice Department, then under President Donald Trump, announced in August it was seeking COVID-19 data “from the governors of states that issued orders which may have resulted in the deaths of thousands of elderly nursing home residents” with a focus on New York, New Jersey, Pennsylvania, and Michigan. That DOJ inquiry expanded in October.

“As we publicly said, DOJ has been looking into this for months,” Cuomo senior adviser Rich Azzopardi told the Washington Examiner last week. “We have been cooperating with them and we will continue to.”

The governor said during a press conference last week that his administration gave the DOJ requests “precedence.” He said his administration fully “replied to” the Justice Department’s request in August and to its October request by “voluntarily producing information for that on a rolling basis.”

The Justice Department declined to answer the Washington Examiner’s questions last week about the status of its Cuomo nursing home investigation and whether Cuomo’s claims were accurate.

The controversy stems from a March order from the New York Health Department.

“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 readmission,” the order from March 25 said. It was rescinded on May 10.

New York Attorney General Letitia James, a Democrat, issued a report in January that concluded, “Nursing home implementation of some guidance may have led to an increased risk of fatalities in some facilities and may have obscured data reported by nursing homes.” She said that “4,000 nursing home deaths occurred after the issuance of the March 25 guidance.”

Republicans on the Senate Judiciary Committee said last week that Garland should prioritize this investigation.

“We will also ask him whether he has the resources he needs to fully pursue an investigation, not only into the deaths that occurred in New York but the deaths that occurred in other states that adopted similar directives leading to the admission of COVID-19 infected persons into elder care facilities,” they said.

Garland was not asked that question during Monday’s hearing.

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