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Brian Lehrer: Brian Lehrer on WNYC. Governor Cuomo is now in the midst of the worst scandal to embroil him in his 10 years in office. We'll talk next to the Queens assemblyman who's become one of the governor's main accusers, Assemblyman Ron Kim. The background, if you haven't been following this, is that the governor had a policy for the first two months of the pandemic of transferring COVID patients living in nursing homes back into those nursing homes after they recovered enough in the hospital, even if they were still COVID positive. That was to free up badly needed hospital beds, but it's also believed to have contributed to the deaths of perhaps thousands more nursing home residents.

Then the governor allegedly tried to minimize and cover up the number of New Yorkers from nursing homes who died by listing some as hospital deaths if that's where they physically died. A staggering total of around 15,000 New York State nursing home residents have died of COVID, but around 6,000 of those were not counted as nursing home deaths until the State Attorney General, Letitia James, issued a report last month charging that there was an undercount.

Last week, the governor's top aide, Melissa DeRosa, admitted that they originally withheld the full accounting from the New York State legislature and the Federal Justice Department.

That drew criticism from among others, Assemblyman Kim, who was one of nine state lawmakers to sign a letter accusing the governor of "intentional obstruction of justice as outlined in Title 18 Chapter 73 of the United States Code". Assemblyman Kim now says the governor called him at home over the weekend, trying to bully him into softening his criticism.

Now, to Assemblyman Kim, for whom this is also personal we should say, he lost his uncle who was living in a nursing home to COVID last spring, and he represents the very hard-hit 40th Assembly District centered in Flushing. Assemblyman, thanks for coming on with us today, and welcome back to WNYC.

Assemblyman Ron Kim: Thank you, Brian. Thank you for having me back on.

Brian Lehrer: Obstruction of justice is a very serious crime. Are you today accusing the governor of that?

Assemblyman Ron Kim: Last Wednesday in a private meeting, his top aide I think accidentally told the truth. She said, and she didn't mince her words, that she, the administration, the governor had information around life and death data because they didn't want that information to be weaponized by the Department of Justice against the administration. It was very clear, they released the transcripts. You can read it for yourself. From that moment on, that private meeting no longer became a private meeting. They've incriminated all of us and roped us in into that coverup.

We have now a moral duty to speak up and say we cannot be part of your lies and coverups. We have a duty to protect the integrity of the Senate and the Assembly, and we have to draw the line and we have to demand that your powers be taken away so we could fully investigate what happened.

The governor is, what he's been doing for the last few days, including the personal threats that he has made me, is he tries to implicate all of us into his coverup. If you don't comply, he threatens your livelihood if you don't lie for him. That's the leadership that he's displaying in public on everyone to see now, so we have to just draw the line.

Especially for someone like me, Brian. I've not only lost a close one, but I've been doing this for 10 months, saying something's not right. I've been on the ground yelling and screaming that there's a coverup going back in April and now this, Speaker Carl Heastie, he's entrusted me as the new Chair of the Aging Committee to do a job, to get to the truth and investigate what really happened.

Brian Lehrer: New Chair of the Aging Committee, the Committee on Aging in the State Assembly. Speaker Heastie yesterday, I saw a clip of him where he was asking both sides, really meaning you and the governor, to cool it and start fighting the pandemic rather than fighting each other within the Democratic party. What's your reaction to that?

Assemblyman Ron Kim: I've had a personal conversation with Speaker Heastie. He is 150% on my side. I didn't see what he wrote but I know that he stands with me. I have endless colleagues issuing statements, calling me, letting me know the same threats that they've experienced. They're all saying enough is enough. We are a co-equal branch of the government and we can't be punished for doing our jobs.

Brian Lehrer: Obstruction of justice would be an impeachable offense or one worthy of calling for the governor's resignation if true. Are you calling on the governor to resign today like some Republicans are?

Assemblyman Ron Kim: Listen, that's something that we can get to as we demand full accountability. The reason why we issued the memo to call for that is because, at that private meeting, I acted in good faith. I said, governor, or to his staff, these are the tangible solutions that you can deliver to right your wrongs. First, a public acknowledgment you made a mistake on March 25th. We all understand people make mistakes. Issue a public apology acknowledging the mistake, repeal the legal immunity, this is something you didn't bring up Brian, but when he said 9,000 COVID positives in nursing homes, these nursing homes were prime, we can't take them.

Half of our staff members are out of COVID because I heard this on the ground. Instead of listening, he issued a legal blanket immunity and snuck that into our budget, giving these facilities essentially, a license to kill. A get-out-of-jail-free card. The AG's report criticized that in her recent report. We need to go back and repeal all that, all the mistakes you've made, correct them.

Instead of doing that, he came out in a press conference and started, again, to try to implicate the Senate, the Assembly, trying to rope all of us in into his lies, and that's why we have to stand up and say, no, we will not be a partner in your corruption and your bad behavior. We will stand up and do the right thing and protect the integrity of the Senate and the Assembly

Brian Lehrer: Listeners, we can take some phone calls for Assembly Ron Kim. Is Governor Cuomo, guilty of obstruction of justice in your opinion? Listeners, from what you know of this story, and it is a complicated story, I didn't even put the immunity for nursing homes part in the intro and Assemblyman Kim brought it up. We'll continue to discuss that piece a little bit.

I know it's complicated, but listeners, have you concluded for yourself that Governor Cuomo is guilty of obstruction of justice? Should the governor resign as some Republicans are calling for, and Assemblyman Kim just said he's not up to that, but maybe they will get there or be impeached? 646-435-7280, 646-435-7280. It's Cuomo's biggest political scandal for sure, with this combination of fatal policy choices, apparently trying to hide the full outcome of those choices, and now, allegedly, trying to smear people, Assemblyman Kim, who are critical of him.

Are you done with Andrew Cuomo, listeners, even if you voted for him, or do you think he's doing a very tough job under very tough circumstances and his political opponents are taking advantage of that or something in the middle or anything you want to ask Assemblyman Ron Kim from Flushing today? 646-435-7280 or tweet @Brian Lehrer.

Assemblyman, the governor's office yesterday denied your claim that he threatened to destroy you in that phone call to you over the weekend and accused you of lying about that, but the governor also spent a long time in his news conference yesterday trying to do what looked like just that, to discredit your reputation by citing a bill from five years ago to protect nail salon owners. Here's a little bit of that.

Governor Cuomo: I do believe Ron Kim acted unethically if not illegally. I do believe he has a continuing racket where he raises money from the owners of the salons who opposed the salon bill. I believed that.

Brian Lehrer: To defend himself from charges of bullying you, he said, if he's attacked, he will defend himself with raising things like that and that you started it. Here's that.

Governor Cuomo: I never said anything about Assemblyman Ron Kim. He attacked me. He attacked me and said that I obstructed justice in a letter today. He said today that the Immunity bill was because of my political contributors. Those are very harsh accusations, Dan.

Brian Lehrer: Assemblyman, your reaction to those clips?

Assemblyman Ron Kim: Listen, every day, Governor Cuomo and his team defends many different versions of the truth, while lawmakers like the, again, as the Chair of the Aging Committee, we are in constant pursuit of a singular truth behind what happened in our nursing homes. The truth is this, Brian, Governor Cuomo allowed his top donors, the lobbyists, to give him $1.25 million to write- and from the hospital associations, to write business-friendly policies like the legal immunity for nursing homes. They even bragged about writing it, it's under the press release, and he ordered the state government to cover up life and death information and took away our ability to legislate and change the outcomes of this pandemic.

That is why this is such a tragic policy because he took away our ability to actually change course, to repeal the legal immunity. If we had the entire data in real-time, we would have been able to have different policies and outcomes.

Brian Lehrer: You're accusing the governor of getting legal immunity for nursing homeowners into a piece of legislation last year because they are donors of his. He's accusing you of wanting immunity for nail salon owners five years ago because they are donors of yours. On this piece of it, should the public conclude that there's just too much pay to play politics and already in general, and you and the governor are both guilty of it and that needs serious structural reform?

Assemblyman Ron Kim: I think distracting this discussion, that's what he's trying to do by talking about nail salons from five years ago. It is the total distraction. Right now we're dealing with a pandemic, right now we're talking about saving lives. This is not, again, overall, even not about him, not about me. This is about the 15,000 families who lost loved ones in these facilities, and the thousands of other older adults who survived COVID dealing with extra health care costs. Unless we can get to the truth and give them justice and figure out how to take care of these older adults, more people will unnecessarily die. That is what we're talking about.

Brian Lehrer: You didn't answer that question. Yes or no? Do we need structural reform so it's not as easy for any special interests to pay to play in politics in New York State?

Assemblyman Ron Kim: I think yes, absolutely. I think out of this, we need a lot more transparent reforms, we need campaign finance. This is something that my colleagues and I supported a few years ago with the Working Families Party. We try to decouple legislation where we can actually have standalone public finance in our system, and you need to get money out of politics. Yes, we absolutely need that 100%.

Brian Lehrer: Did you vote for the bill that included immunity for the nursing homes?

Assemblyman Ron Kim: I did not. We actually almost did not pass that bill by one vote. This is language, again, it was snuck in by the executive. Most of the members were not even briefed because it was such a last-minute language that was put in. Just for background, Brian, they've had what they call a good samaritan law, which is something that he did it in the form of a mandate in March 23rd.

From March 23rd to April 2nd, the budget passed, they put in language in the budget to make it into law that broadened the immunity to not just the workers, which I'm okay with, to the executives of nursing homes, the shareholders, the trustees, to corporations and the businesses that are behind these facilities. That's why these facilities no longer felt like they had an incentive to invest anymore.

We issued a number of reports back then because the top 76% of fatalities at that time came from states that gave some legal immunity to nursing homes in New York led the way with the gold standard language to a point where Mitch McConnell took the language that Governor Cuomo passed and tried to implement it in Washington and failed.

Brian Lehrer: We"ll continue in a minute with Assemblyman Ron Kim. We'll take your phone calls, we'll hear more about the meeting that he was in with not a lot of people with the governor's top aide Melissa DeRosa in which she admitted what's now being described as a cover-up. Stay with us.

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Brian Lehrer on WNYC with Queens Assemblyman Ron Kim accusing Governor Cuomo of obstruction of justice in covering up the number of nursing home deaths during the early parts of the COVID pandemic, and then of bullying him, Assemblyman Kim, in a call to his home over the weekend, to try to soften the criticism. Let's take a phone call. Here's Jessica, a physician in Jersey City, Jessica, you're on WNYC. Hello.

Jessica: Hi, Brian. Thanks for having me. Basically, I just want to say I don't know all of the details about the bullying and the covering up of the numbers, but I think a piece of people are forgetting-- I'm sorry, that's my car, I'm driving into work and my snow thing is going off. Basically, that the hospitals were full, you know what I mean? The hospitals at this time were overwhelmed. They were full, there were a lot of nursing home patients in the hospitals. When those patients were well enough to be moved back, they had to go somewhere.

I know that sounds callous maybe but the truth is the hospitals, me a physician, we were working, we had to make room for the more sick people who were incoming. I do think part of it, of returning the patients back to the nursing home was because of acute care rehab facilities did not want to accept the patients. We couldn't send them there. That was a way around it.

It was a way-- maybe the nursing homes-- I would imagine a lot of them maybe didn't even want them back necessarily because they knew there was some risk, but where were we going to put the patients? If the families couldn't take them, the rehab facilities would not accept them, then where were they going to go? Once they were well enough to leave the hospital, we had to make room for more patients. It was crazy. We needed the room for more sick people.

Brian Lehrer: Jessica, thank you.

Jessica: On the side of the immunity thing--

Brian Lehrer: Real quick.

Jessica: I just think part of the immunity- sorry, it was maybe to help the nursing home deal with receiving them back.

Brian Lehrer: Jessica, thank you very much. Since the snow alarm went off in your car, be careful of the black ice out there, but that is the dilemma that the governor was facing back last spring as she describes it. Right, Assemblyman?

Assemblyman Ron Kim: Yes, and Jessica, thank you for that call, and thank you for your work and your service. I know it must be very stressful. Thank you for all that you do. Jessica is correct. At that time, there was [unintelligible 00:17:27], no one knew what they were doing, and the governor made a choice to, if you remember, focus on ventilators, making as much space in the hospitals, what the data started to show that there was space in the hospitals and we had other options to move the patients, not direct not to nursing homes, but other facilities outside of nursing homes, but he made a choice to put in that mandate, the March 25th mandate, to require nursing homes to take non-tested COVID patients for almost two months.

Other states that also have similar policies automatically rescinded and went the opposite direction. They actually banned COVID positives coming back to nursing homes. He made a different choice. He didn't model it out. He wasn't flexible because the data and trends were showing something else and he wasn't able to actually adapt in the moment and go in a different direction. As far as the immunity, I think the doctors--

Brian Lehrer: Let me follow up on that piece first then we'll get back to the immunity. Why do you think he did that? He certainly wasn't trying to kill people.

Assemblyman Ron Kim: No, of course not. I don't think he was-- of course, I would never accuse the governor of doing such a thing. I think he was listening to the wrong advice. I think the business groups that were next to him were advising him on these policies. He was not talking to the workers. He wasn't talking to the families, the residents, and the patients. He was listening to the advice of the top lobbyists and the business people who primarily cared about the bottom line of these industries.

64% of New York's nursing homes are for-profits. They have a fiduciary duty to produce profits every quarter to the shareholders. When you give them a get-out-of-jail-free card, they are not going to invest in PPE and hire more staff to take the patients', the residents back in, they're going to protect the bottom line.

Brian Lehrer: That's the immunity part. Immunity from lawsuits is what you're calling a get-out-of-jail-free card that you're saying enabled the nursing homes to continue to cut corners and keep elderly residents even during COVID in close quarters for the sake of increasing their profits.

Assemblyman Ron Kim: Right, and it's not just for liability, it's also criminal liability where they got--That's why I call it a get-out-of-jail-free card as well.

Brian Lehrer: Let's take another phone call. Jim in Brick, you're on WNYC with Assemblyman Ron Kim. Hi, Jim.

Jim: Hi. I think the weaponizing of this is illustrated by the going to the New York Post. They have obviously an in for Cuomo and the assemblymen were more looking to avoid that charge. You could've gone to The Times or the Daily News. I hate to be cynical, but it sounds like he's just got a thing for Cuomo.

Brian Lehrer: Assemblyman, why did you go to the Post? They originally broke this story of the meeting that you were in.

Assemblyman Ron Kim: Well, Jim, I appreciate that but the reporter who broke the story, Bernadette, has the highest level of integrity. I've known her for years and I'd defend her integrity with anyone. I know that she's honest and truthful and they broke the story, they had all the information and they wanted to get a quote from me about what happened in that meeting. The truth is the truth, the transcript is the transcript. New York Times immediately picked up the story and validated it in their own article as well. I don't think it's about who reported it at this point. There's only one truth and it came out, and we should be focused on how do we actually find solutions based on what we discovered.

Brian Lehrer: Jim's question though does imply a certain aspect of the politics around this I think. That the most outspoken critics of the governor in the legislature have been lawmakers like yourself from the most progressive wing, Senator Ramos, Senator Salazar, others who were already critical of him for being too conservative on taxing the rich and other ongoing issues. Now there seems to be a strange bedfellow's anti-Cuomo coalition led by the most progressive Democrats and the Republican party. Do you acknowledge that's a real thing?

Assemblyman Ron Kim: Well, let me just, I can't speak on behalf of other colleagues and their attacks or criticism, but it's our job to criticize. It is the check and balance. I was empowered by the Speaker to investigate and get to the truth, and if something's not right, it's my job to call it out. I actually sponsored the bill last year in March when the governor and the commissioner came to us, the Democrats, and asked for extra powers and a $40 million emergency fund to get ahead of the curve.

Many of my progressive colleagues said, "Don't do it." Closest friends said, "Don't do it. You can't trust the governor. He's just power-hungry, please don't give it to him." I sponsored that bill and got up and defended the governor and said my constituents are scared, but that Washington is not doing anything. They need answers. This is the moment. Whether you like him or dislike him, I think he has what it takes to be impactful, effective, efficient. He was built to thrive in this environment. I even said those words to my colleagues. Let's give him a chance. Let's get behind the governor.

That's why I passed it but within a couple of weeks when he passed the March 25th and my constituents started calling me about the nursing home situation, I realized there was a disconnect, they're not reporting the information.

April 16th, I was at a nursing home and there were under-reporting already going on at the facility and people were being kept out. Imagine being a daughter who has a loved one inside and you know that COVID is transmitting inside and you can't get access and no one will tell you anything. That is the situation that I walked into. Within a matter of weeks, while I'm fighting for my constituents, my uncle passed away at a local nursing home. I've experienced this pain and trauma from a personal point of view, as well as defending my constituents and trying to get to the truth of why there was such a disconnect in dealing with the nursing homes at the peak of this pandemic.

Brian Lehrer: We're talking about Cuomo and the nursing homes like so much of the media is today. Are you also proposing a bill, or is anybody in the legislature, to remove for-profit status from the nursing home industry? Many of our listeners may not know but you may not be a for-profit hospital in New York State, but you may be a for-profit nursing home with these extra incentives to cut corners that presumably for-profit institutions have, and two-thirds of the nursing homes from the stats that I've seen in New York State are for-0profit. Is that the reform that you should be focusing on? Is that a reform that you're at least also focusing on with active legislation?

Assemblyman Ron Kim: Yes, 100%. Chairman Dick Gottfried and I are working on a bill along with 1199 to change how much these for-profits must invest in direct care. Right now it's at such a low rate in terms of if they give them Medicaid, Medicare, they can walk away with 40%, 50%, 60% of that for their own profit margins. We're working on a bill to change that, to mandate them, to make sure that 70%, 75% goes into direct care.

There are other things that- there's like a whole menu of bills that we've been working on with the Chair of the Health Committee, Dick Gottfried, and I do look forward to having those discussions, but I do want to credit the governor on Monday, he did mention the problems are for-profits and I'm glad that he did so, and I hope that despite what's going on, we can still go back and work on those solutions.

Brian Lehrer: This is WNYC-FM HD and AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are a New York and New Jersey public radio. With just a few minutes left with Queens State Assemblyman Ron Kim accusing Governor Cuomo of obstruction of justice for covering up the number of nursing home deaths in New York State at the beginning of the pandemic.

Before you go, Assemblyman, to come back around to that, I gather you were personally on the conference call last week in which the governor's top deputy, Melissa DeRosa, said they did withhold the real numbers because Trump would use it against Cuomo. If they acceded to the request from the federal Justice Department, Trump would use it against Cuomo like he was using things against Gavin Newsom, governor of California, Gretchen Whitmer, governor of Michigan, and other Democratic governors. Can you confirm that? Was she wrong about that and were they wrong to try to avoid Trump twisting it into disinformation, which I imagine you agree he would have done?

Assemblyman Ron Kim: I think some of the conservative Trumpian critiques were definitely real. It was part of that environment that we all lived in, but the Department of Justice had a separate inquiry that went into the administration. We've asked for the data before of any of this inquiries.

Brian Lehrer: You, the Democrats, and the state legislature.

Assemblyman Ron Kim: Right, legislature. We've been asking for that way before this. The timeline doesn't really add up but what she was saying is if that data is out, if we released that to the state even, the administration was afraid that the Department of Justice would find something that could be troubling for the governor's office, whether it be political damage or something illegal, doesn't matter. Like you can't deny Department of Justice, their right to this information that around life and death when it was requested. At the core, that is the problem that we must address. Did they do something illegal, unethical, and if so, how are we going to address it and move forward?

Brian Lehrer: About the governor's phone call to you, Mayor de Blasio said this, this morning.

Mayor de Blasio: That's classic Andrew Cuomo. A lot of people in New York State have received those phone calls. The bullying is nothing new.

Brian Lehrer: Do you call it bullying?

Assemblyman Ron Kim: I called it a threat. It wasn't just the bullying. He threatened my political career, my livelihood in front of my family, my wife was shaking for two hours that night, she couldn't go to sleep. I was in the middle of trying to bathe my kids. It was intimidating and it was scary. The yelling part, I think I could deal with, right. If you want to yell, berate me, fine, but I think the moment that he asked me to issue a statement to essentially cover up the other coverup, what Melissa said, to belittle me and say asking me, "Are you a lawyer?" "I'm not."

"Well, then you obviously didn't understand. This is what she said, this is what happened, and this is what you wrote, right? This is what you will put out tonight, not tomorrow do it tonight." That was the moment when I realized there was a clear ethical- something was very unethical and I could not keep it to myself and I had to make sure that I'm protected and especially because he tried to call again many times following that conversation to a point where now I had to retain an attorney so they can talk to our lawyer moving forward regarding anything around nursing homes.

Brian Lehrer: Last question, if you've already concluded and eight of your other colleagues who signed that letter have concluded that the governor is guilty of obstruction of justice, which would be an impeachable offense, are you and your colleagues in the legislature going to launch formal impeachment proceedings?

Assemblyman Ron Kim: I believe our Democratic Conference needs to build consensus. We have well over 100 plus Democrats in our conference. Part of that memo was to start that discussion. It will and I believe in a democratic process and I believe Carl E. Heastie and his leadership to facilitate those discussions moving forward. Unlike the Senate, the Senate I think has 30 plus Democrats. We have a lot more Democrats in our conference and it will take some time, but hopefully, we can start having those discussions as soon as possible.

Brian Lehrer: Is that to say you want to get to that point and build enough consensus among your colleagues?

Assemblyman Ron Kim: Listen, I personally do not make this one to be about me or Andrew Cuomo or even Melissa. I want to get to solutions but there has to be accountability and there is a process to get to that point and I entrust my colleagues in the Democratic Conference and the institutions behind the assembly and Senate to lead that way. I will be there with them as they take the next steps

Brian Lehrer: Assemblyman Ron Kim, thank you very much for joining us. Best of luck to you and your family and all your constituents. I grew up just outside your district. Thank you very much for coming on today.

Assemblyman Ron Kim: Thank you so much, Brian. Bye-bye.

 

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