The cover-up may be worse than the crime, Dr. Joel Zinberg, a medical doctor, professor, and contributor to the Manhattan Institute’s City Journal, says of New York Gov. Andrew Cuomo’s inaccurate reporting of COVID-19 deaths in nursing homes in his state. 

Zinberg, also a senior fellow at the Competitive Enterprise Institute and former member of the Trump administration, joins “The Daily Signal Podcast” to explain what is known about Cuomo’s mismanagement of nursing homes during the pandemic and whether he sees Cuomo’s actions as an impeachable offense. 

We also cover these stories:

  • The Senate holds confirmation hearings for Merrick Garland, President Joe Biden’s nominee for attorney general.
  • The Supreme Court announces it will not shield former President Donald Trump from having to turn over his tax returns to a New York grand jury.
  • The high court also says it won’t look at lawsuits by Pennsylvania Republicans regarding the state’s vote-by-mail policy. 

Listen to the podcast below or read the lightly edited transcript.

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Virginia Allen: I am joined by Joel Zinberg, a medical doctor, contributor to the Manhattan Institute’s City Journal, a senior fellow at the Competitive Enterprise Institute, a professor, and a former general counsel and senior economist at the White House Council of Economic Advisers under President [Donald] Trump.

Dr. Zinberg, thank you so much for being here.

Dr. Joel Zinberg: Thank you for having me.

Allen: Today we’re talking about New York Gov. Andrew Cuomo, his handling of nursing homes during COVID-19, and what we know about the cover-up, and really that cover-up of the accurate deaths of individuals living in nursing homes and long-term care facilities.

I want to start by going back to spring 2020. Between March 25 and May 11, the New York Department of Health, under Gov. Cuomo’s leadership, they issued an advisory that nursing homes should allow previously hospitalized COVID-19 patients back into those care facilities without first checking to make sure that they were COVID-negative.

Explain the situation a little bit further, if you would, and what we know about why these individuals were actually being delivered back to nursing homes without first being tested.

Zinberg: It wasn’t merely that they could admit them, they were ordered to admit them.

This was not an advisory that was giving them any sort of discretion. They were told in no uncertain terms that they must comply with this and that they were prohibited from barring someone from admission based on a confirmed or suspected diagnosis of COVID-19.

In fact, they were even prohibited from testing any prospective admissions. They were told that they must readmit these patients who had had known COVID infections into the nursing homes.

Even though they subsequently claimed that, oh, they were just following federal guidance or that this was some discretionary action or that nothing happened that was untoward, all of those claims are untrue.

Now, the rationale at the time for this policy was that they were concerned with preserving the number of hospital beds available for COVID infections. And it is reasonable to note that at the time, hospitalizations were rising, utilization of ICU beds were rising, so it was a legitimate concern.

But that did not mean that one should then pour these potentially infected patients back into nursing homes, which everyone knew even at that early stage were breeding grounds for COVID infection and that’s where the vulnerable people, the elderly and the infirm, were living in closed congregate facilities.

Moreover, it’s worth noting that at the time, the Javits Center was opening up. The U.S. Navy ship Comfort had sailed into New York Harbor. These were outlets that were available to the state to place these patients, but instead they insisted that they go back in this very dangerous fashion, right into these nursing facilities.

Allen: Were there not medical professionals telling Gov. Cuomo that this was a bad idea and could ultimately result in the virus doing exactly what it did, spreading rapidly through these elder care facilities and taking the lives of so many?

Zinberg: Large numbers of people looked askance at this and they were concerned that this was a problem. Yet, this was a directive issued by the Department of Health by Gov. Cuomo’s own Department of Health.

We’ll never know, I suppose, ultimately who was responsible. The commissioner, [Howard] Zucker, was involved in the process. He did sign off on this, but we don’t know who exactly within the Department of Health was for or against this policy.

We now know with hindsight that more than nine senior officials in the New York State Department of Health have resigned or taken early retirement, presumably because they’ve disagreed with policies of the Cuomo administration.

Allen: For several months, we’ve really seen Cuomo dodge a lot of different questions about this order and why these patients were allowed back into nursing homes, were ordered back into the nursing homes. There’s been just lots of questions, but Cuomo has really kept from answering a lot of those questions directly.

In January, information began to come out about the actual, accurate numbers of nursing home COVID-19 deaths and that information has continued to surface. By the end of January, Cuomo was reporting that there were 8,500 nursing home deaths, but now we know that that number is at least double.

Walk us through why it has taken so many months for the accurate numbers to actually come to light.

Zinberg: There are, I think, two primary reasons. One is you had on the large part, a very uncurious media.

For the past year, Gov. Cuomo has been lauded by this adoring press as someone who was giving a forthright and accurate response to the COVID-19 pandemic. He was rewarded with a lucrative book contract. He got an Emmy for using TV to provide the public with reliable information.

But the fact is that Cuomo and his associates were making a series of disastrous policy mistakes, not just this nursing home mistake, and the press seemed curiously uninterested in looking at this.

Now, not all the press, because the second reason is that the governor had a concerted effort to cover up and to stonewall any kind of inquiry.

Back early in this process, The Associated Press filed a Freedom of Information [Act] law request, a FOIA request to get information on the nursing home admissions. They were rebuffed.

The Empire Center for Public Policy, which is a think tank in New York state, similarly filed a FOIA request. They were told they were going to have to wait until November. And this was basically six months later.

They filed an action in court to compel the government to respond. Many New York legislators, including Democrats, made multiple inquiries to find out what was going on, but they were all rebuffed. This was a concerted and prolonged cover-up by the Cuomo administration.

As you pointed out, the dam only broke in January when the New York attorney general, Letitia James, released a report that indicated they had, the Department of Health, … undercounted the nursing home deaths by at least 50%.

And everyone knew they were undercounting it because they had changed their policy once people questioned the whole nursing home directive.

They had changed their policy to only count deaths that physically occurred in the nursing home. It didn’t matter if you sent a patient who was sick from COVID out to a hospital where they died two days later, they didn’t count that as a nursing home death.

Everyone knew that there were problems, but the Cuomo administration was not willing to acknowledge them.

Allen: And of course, things really boiled to the surface when earlier this month, a senior aid of Gov. Cuomo’s, a phone call was leaked of her telling other Democrats in the state of New York that, really, the accurate numbers had not been reported in order to protect Cuomo. Your response to this?

Zinberg: I think she, in a candid moment, acknowledged something that everyone at that point already knew.

Because after the attorney general’s report came out, a Supreme Court judge in New York ruled in favor of the Empire Center FOIA request and the state responded by showing that approximately 15,000 nursing facility patients had died. And that’s a 63% increase over what the Department of Health had said.

And there was finally a Department of Health response to The Associated Press FOIA request and where they admitted that 9,000 people had been admitted back to nursing homes from hospitals, which was, again, a 43% increase over what the Department of Health had previously said.

At that point in time, by the time the interview where [Melissa] DeRosa made this admission came out, everyone knew that there was something very rotten in the state of New York and this just confirmed it and it confirmed that the cover-up was done for political reasons.

The Cuomo administration was concerned that federal authorities would point to the poor political policies of the Cuomo administration and therefore made a conscious decision not to share that information either with them or, frankly, with anyone else, including New York state legislators.

Allen: You wrote in a recent City Journal piece that Cuomo’s cover-up of the actual numbers of nursing home deaths, that that might actually be far, far worse than the order itself that sent all those individuals back into the nursing homes. Could you explain that a little bit further and your thoughts on that?

Zinberg: Right. This goes back. Obviously, people talk about what happened in Watergate and the Nixon administration, that the cover-up was worse than the crime.

One might argue, as I mentioned earlier, that this was just a misguided policy in the heat of the moment in the spring—they thought they were doing the right thing by trying to preserve hospital beds, even though there was good reason to believe that they didn’t have to do that.

But putting that aside, now you have a situation where they’ve admitted that they did not respond to federal inquiries. They’ve admitted that they sat on legitimate FOIA requests. They’ve admitted that they rebuffed the New York state Legislature, which, … last time I checked, is a co-equal part of the New York state government.

It’s no surprise now that it’s been announced that the U.S. attorney in the Eastern District of New York is investigating and now they’re investigating for criminal reasons.

The previous investigations have been for civil reasons. And these are now potential criminal investigations for obstruction of justice or false statements or misuse of federal monies. This has become a very serious problem for the Cuomo administration.

Allen: On Feb. 15, Cuomo, he hosted a press conference to address his failure to report the accurate numbers. Let’s take a listen to just a portion of what Cuomo had to say, per Reuters.

Gov. Andrew Cuomo: I take responsibility. We should have provided more information faster. We were too focused on doing the job and addressing the crisis of the moment and we did not do a good enough job in providing information. I take total responsibility for that. The pain in it is it created confusion and cynicism and pain for the families of the loved ones.

Allen: Dr. Zinberg, your response to Gov. Cuomo saying, “I take responsibility”—sort of, in a way, almost sounding like, “There was just a lot going on so we weren’t able to report accurate numbers”?

Zinberg: Well, look, his high aide, Ms. DeRosa, has given the lie to that. She’s made it very clear that it wasn’t that they were distracted by just doing the job. They made a conscious decision not to provide the information. It’s clearly untrue what he said.

And he said, “I take responsibility,” but he hasn’t taken any responsibility. He’s persisted in blaming others for this misguided policy. He persists in claiming that they only undertook this policy because they were directed by federal guidance.

This was a claim they made at the time. This was a claim they made in a July 2020 report put out by the New York State Department of Health, which sought to respond to concerns about the policy. This was a claim that he makes to this day, but it’s an untrue claim.

The [Centers for Medicare & Medicaid Services] guidance on this issue said that nursing homes can accept patients back from hospitals if they have adequate infection control facilities. They were never told that they must or that they should or that they have to. All of which was language that was in the New York state directive.

The administration has persisted in saying that this was somehow discretionary, that the nursing homes are responsible somehow. Again, if you look at the language of the directive, it was not discretionary at all and they persisted in claiming all along that the policy didn’t harm anyone.

If you look at the report done in July and then you look again at Health Commissioner Zucker’s response to the attorney general’s statement, January report release, you will see that they continued to claim, “Well, COVID was already there in the nursing homes because some staff had it, therefore, that’s how the infection spread.”

They completely discount the possibility that dumping thousands of probably infected people back into the nursing homes could have in any way impacted the death toll. No one has ever claimed that this misguided policy was responsible for all the deaths, but it really is very likely that it contributed to increased unnecessary deaths.

They also make a very technical argument, which most people didn’t bother read their July report, but people like me who did found that it’s a completely silly argument.

They claim that the median length of stay for the nursing home admissions in the hospital was nine days and that the [Centers for Disease Control and Prevention] had actually said that most people aren’t still infectious by that point, so therefore, the people returning to the nursing home couldn’t [have] been a source of infection.

But if you actually look at the CDC statement that they quote, the CDC was saying that people who have mild to moderate symptoms are unlikely to be infectious by 10 days, but that people who have severe symptoms are still infectious up to about 20 days.

And who is it who gets admitted to a hospital? Well, it’s not people with mild to moderate symptoms, it’s people with severe symptoms. Right away you know that they were returning a large number of people who were probably still infectious.

In addition, they make the really ludicrous claim that because the median is nine days, that this couldn’t have been a problem. Well, anyone who knows even a modicum about statistics knows that a median is the midpoint of the distribution, which means that half of the people who returned were in the hospital for less than nine days, making it extremely likely they were still infectious.

On each and every level, the administration has been misleading, both in their July report and in their subsequent releases, and they’ve been obstructionist in failing to respond to legitimate inquiries.

Allen: I think so many New Yorkers are truly frustrated and they’re calling for there to be accountability. We’ve seen that, as you mentioned, both Democrats and Republicans in the state of New York are saying, “Wait a second, there needs to be accountability here.” And many are actually calling for impeachment proceedings to begin.

Do you see Cuomo’s actions as an impeachable offense?

Zinberg: Well, the New York state law is actually even less clear than the U.S. Constitution on what’s impeachable. And there’s only been in history one governor who’s been impeached, and … you have to go back more than 100 years for that.

Nevertheless, you have a lot of enraged legislators, including Democrats. And so at minimum, we have New York legislators calling for curbing the governor’s emergency powers.

They’re looking to repeal a bill that gave him emergency powers to really overturn New York laws. And that’s supposed to run through April and they’re now looking to repeal that or at least in some way curb it.

You’ve also had suggestions from the Republican side of the aisle, which is granted a small minority in New York state, but you’ve had suggestions that impeachment proceedings should begin. And we’ll see whether Democrats are willing to go on board.

But I can tell you, for example, a Democratic assemblyman, Assemblyman [Ron] Kim, has already come out and said that he’s been threatened by the governor himself, that he should go along with the governor’s point of view on this and not do anything to imperil the governor. Otherwise he would be quote-unquote, according to Assemblyman Kim, “destroyed.”

You may find that there are enough Democrats who are so enraged about this policy and then the cover-up that they would go along with an impeachment.

Allen: It’s going to be fascinating to see as information continues to surface, but, Dr. Zinberg, we really appreciate you breaking this down for us. Thank you so much for your time.

Zinberg: You’re very welcome.