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It’s a week since Judge Judith Kaye issued her 54-page report exonerating and damning Governor Paterson for his handling of a domestic violence case, and nothing has happened. That’s news.
Clemmie Harris, who admitted to Kaye that he tried to kill the complaint, is still the governor’s closest aide. Deneane Brown, the key witness who took the fifth, got one state raise that could have been withheld. Paterson is saying he was vindicated. And the governor’s running buddy David Johnson remains on the lam, a Fifth Amendment fugitive.
Though the onetime furor over this Halloween horror show is what convinced Paterson to shut down his re-election campaign, he is quoted in the Kaye report as telling the victim, Sherr-una Booker, that it would “blow over.”
In a strange and disturbing way, he was belatedly right.
The media has moved on. When a powerful public official is a lame duck, it’s not supposed to mean that the coverage of him becomes lame. As tepid as Kaye’s conclusions were, her evidence was explosive. If a reader focuses on footnotes and nuance, Kaye implicitly makes the case that the man who is still governor is right now orchestrating a cover-up of his own earlier attempts to cover up a criminal outburst of apartment rage. Paterson wants to use the report to pave the way for a better public exit than he deserves, and no one is demanding that he account for his own missteps, as well as the misconduct of the people around him. Kaye so soft-pedaled every fact she unearthed that it requires a close read to understand that the report is still a quiet call for action.
Let’s start with the fact that the report never says that Johnson and Brown, the only witnesses who talked extensively with Paterson about the case, took the Fifth Amendment. But it does, in footnotes, reveal that they did (it is the only way to decline to testify) and their nosedives made it impossible for Kaye to determine what Paterson knew. That’s why we get a mantra of “there’s no evidence that the governor knew that a Family Court proceeding existed,” etc., etc. If Paterson says he didn’t know and the two people who talked to him about it won’t appear, then “there’s no evidence.”
Reports from inspector generals and the state integrity commission usually say explicitly if a witness refused to testify because his testimony might incriminate him. Kaye didn’t, perhaps believing it’s a prejudicial fact, suggesting that even though she was appointed by Andrew Cuomo to act as a prosecutor for the first time in a storied career, she was still more comfortable in her old robes than she was brandishing her new fist.
Johnson was the governor’s driver, eyes, ears, creation, closest friend, most powerful aide, and decade-long keeper of every dark alley secret. He’s also the guy who thinks Halloween is the night you rip a costume off your girlfriend rather than help her put one on, leaving bruises on her arms. No one knows how this suspended-without-pay indispensable man makes a living or pays his criminal lawyer now, a question that Kaye doesn’t even address, though it could go to the heart of whether the governor looks kindly on Johnson’s stonewall.
All we know, thanks to footnote number 8, is that “Johnson declined to cooperate” with Kaye’s investigation. Well, let’s see, if the only guy who was at Paterson’s side every waking minute and at the center of this domestic violence incident refuses to answer a single question, the governor is free to say anything he wants about his state of knowledge, right? If Johnson and Brown are the people who actually tell him about the incident and they are mum, then Paterson’s claim that he had no idea Booker had obtained a court order of protection is as tough to refute as it is impossible to believe.
Brown is Booker’s friend, and she rushed to the apartment that Saturday night at Johnson’s order (he “directed” her, says Kaye), talked to Johnson and Clemmie Harris from the apartment as the police arrived, and knew all about Booker’s court order of protection. Brown was deputized by Johnson and Clemmie Harris to get Booker to shut the case down from the git-go, and later became Paterson’s confidant and go-between. Paterson had her bring him his lunch at the Governor’s Mansion to talk about Booker, drove her to his state office building talking about Booker, asked her to get Booker to call him on Super Bowl Sunday, and even asked her to convey a fallacious press statement to Booker that Paterson wanted the victim to issue. When Cuomo was doing the probe at first, Brown testified. But when Kaye asked her to return, her lawyer said she’d take the fifth if called.
Brown has spent most of her life on Paterson’s payroll, working for him in the Senate before assuming her current, discretionary, job in the state housing agency. Her father, Willie Walker, is the superintendent of the state office building in Harlem, and served on Mike Bloomberg’s Task Force on Domestic Violence. We don’t have to speculate about Brown’s concerns, or her loyalties. Kaye used one footnote to tell us that Paterson prevailed on Brown to get Booker a proposed press statement of lies about her relationship with Johnson, and that Brown “perceived” this insidious act as an “instruction” from the governor “rather than a choice,” doing it apparently because she “was concerned about maintaining her state employment.”
She was, apparently, not concerned about maintaining her state employment when she refused to cooperate with an investigation that Paterson himself asked Cuomo’s office to conduct. She knew that’s precisely what Paterson wanted her to do, as, no doubt, did Johnson. In fact, Brown got two raises while she gave Kaye the finger. Case law on the firing of state officials for taking the fifth is mixed (you have a constitutional right to assert the fifth but not a right to a job once you’ve done so is one side of the argument), but Paterson has taken no action against her at all, just as he’s done nothing about Harris, the one aide Kaye did nail.
“Harris’s conduct was inappropriate,” concluded Kaye, “especially from a public official with a law enforcement background as a former member of the state police.” Kaye found Harris guilty of “seeking to steer a domestic violence complainant away from the protections available to her by law.” She said the only reason his actions didn’t violate witness tampering statutes is because Harris was so quick on the draw that he tried to silence Booker, using Brown as his conduit, the day before she sought and got her order of protection on November 2.
As contrary to common sense as it may seem, you can tamper away under state law so long as “an action or proceeding” hasn’t been filed yet. Kaye decided that the police complaint Booker filed before Harris applied all his pressure — which he knew all about – – did not “initiate” a proceeding. Of course, the complaint was filed shortly after the incident on Saturday, and no court was opened until Monday. So Harris told Brown to “take Booker out to dinner” and “tell her not to go to court” in five conversations on November 1, all before the application for a court order was filed. The police had already told Booker to file for such an order on Saturday, and her police complaint was a precursor to that order. But Kaye decided, presumably rightly on the law, that only the order itself triggers tampering protection.
That slim reed saved Harris from indictment, and it appears to be good enough for David Paterson, who’s taken no disciplinary action against his old friend. Harris and Paterson talked for 40 minutes on Halloween night, by the way, after Harris learned from Johnson and Brown all there was to know about the incident, and the two agree that Harris never mentioned it. Paterson was in a state car from Albany headed for a Halloween party in the city that he wouldn’t make it to until around 12:15 that night, such a partying guy, so he and Harris supposedly talked about the World Series. He will apparently be around to gab about the next one too.
No editorial board has called for action against Harris or Brown. Paterson has never had to explain if directly or indirectly he had anything to do with this circling of the wagons, though he does still have the reins in his hand.
The report is also replete with Paterson deceptions that will only add to the legend of the Greatest Serial Liar in Gubernatorial History, making it all the more unsettling that Kaye had to rely on Paterson’s version of many events, absent Brown and Johnson’s cooperation. My favorite Paterson specialty is that he told Denise O’Donnell, his criminal justice deputy who told him she was quitting over this debacle, that Booker had called him, not vice versa. This was the day after he’d spun the same yarn at Booker herself and this young hospital worker had the nerve to tell the governor of the state that he was “playing word games,” namely that she’d only called him because he’d had Brown ask her to call him. Kaye says that Paterson conceded that was true when Booker confronted him. Yet, hours later, he was still using the same prevarication to try to convince an honorable woman offended by it all not to quit.
It is impossible to sink any lower. O’Donnell and Paterson’s two top press aides quit in disgust over his manipulation and deceit, after he exhausted them with his feigned innocence and shocking shamelessness.
It’s also impossible to read this report and not want to punch somebody, or at least not wish its special prosecutor/author had ever punched somebody. There’s the nice-old-lady-who-hates-to-hurt-anyone explanation for the distance between Kaye’s fierce facts and serene conclusions. Then there’s an explanation that’s less benign, but still motherly. Paterson did make Kaye’s all-but-adopted son, Jonathan Lippman, New York State’s chief judge, and one mitzvah deserves another. Kaye strongly urged Paterson to name Lippman, who’d been Kaye’s top administrative judge for years, to succeed her.
Motive, though, is always intractable.
What’s clear is that this report cannot be a dead letter. By a simple majority of 76, the Assembly, which claims to care about domestic violence, can impeach Paterson and drive him from office, replaced by Richard Ravitch. If Paterson does nothing about Harris, he has condoned the use of his power to try to cajole Booker into not going to court, by Harris’ own admission. If Paterson does nothing about Brown, he has condoned her repudiation of a legal process Paterson launched.
The Public Integrity Commission has indicated it will review Kaye’s findings but only after the Bronx District Attorney completes its investigation of the domestic violence case itself. That suggests nothing will happen until long after Paterson’s final five months are up.
We once had banner headlines in this city calling on Paterson to resign. We know more now than we did then about why he should. If he prevails in this cynical and clumsy cover-up, the state is the loser.
Research assistance: Gavin Aronsen and Nicole Maffeo
UPDATE: It’s pretty hard to miss the New York Times, but I managed. I wrote that “no editorial board has called for action” against Clemmie Harris or Deneane Brown. I was fifty percent right. The Times, whose reporting on this story is of Pulitzer quality, said that Harris does “not have any right to a government paycheck.” Chock it up to my tabloid fixation. Also, I have two references to Brown’s raises above. The reference is accurate, but may require additional explanation. One of the raises, a “performance advance,” was “discretionary,” says Dennis Tompkins, a spokesman for the state comptroller’s office. The other was an automatic salary adjustment and would have required special action to block.