Andrew Cuomo and Donald Trump have more in common than boyhood homes in Queens. Like Trump, Cuomo could still face impeachment and an impeachment trial despite a promise to resign as Governor later this month.

Federal Impeachment

The Trump impeachment took place days before President Biden’s scheduled inauguration. The House voted to impeach Trump on January 13, just days before Trump left office, and the Senate acquitted him in February after he had left the White House for Mar-a-Lago. Prior to Trump’s acquittal, every Democrat senator and and six Republican senators voted yes on whether the impeachment of a former President is constitutional.

Nays argued the trial was unconstitutional because the federal Constitution limited impeachment proceedings to current officeholders. Section 4 of Article II states, the President “… shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The argument for limiting impeachment focused on removal. Congress could not remove Trump from an office he no longer held.

Yeas pointed to Section 3 of Article I, where an impeachment judgment “shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” The argument for impeaching Trump after he left office focused on disqualification. It follows from the language that the Senate has two tasks–to determine whether to remove an officeholder and then to decide whether to disqualify that person from future office.

New York Impeachment

The choices in New York are similar. Under the state Constitution, an impeachment conviction “shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any public office of honor, trust, or profit under this state.” The Judiciary Law clarifies that the impeachment court has two choices upon conviction–removal or removal and disqualification.

Can they or can’t they?

It’s obvious that a person who resigns or whose elected term has ended cannot be removed from office. Can that person still stand trial to be disqualified from future office? Congress answered yes last winter. But there, the House impeached Trump before he left office. Here, Cuomo resigned before the Assembly voted on impeachment. Can Cuomo evade impeachment and an impeachment trial by resigning?

Congress answered that question at the federal level in 1876. Secretary of War William Belknap resigned minutes before a House committee was meeting to draw up articles of impeachment. Citing English precedent, the House voted to impeach Belknap, even though he had resigned. The Senate voted to hold an impeachment trial despite Belknap’s resignation. Belknap was acquitted when the guilty votes did not meet the two-thirds required, with many senators in the minority voting “not guilty for want of jurisdiction.”

Despite their loss, the house managers felt they had met the purpose of impeachment by conducting the trial. The decision to impeach a former officeholder “will be a constant warning that impeachable offenses, though not discovered for years, may result in impeachment, conviction, and public disgrace.” They added “To settle this principle, so vitally important in securing the rectitude of the class of officers referred to, is worth infinitely more than all the time, labor, and expense of the protracted trial closed by the verdict of yesterday.”

Nearly a century later, President Richard Nixon resigned after the Judiciary Committee delivered articles of impeachment to the House. The House did not vote on the articles. Instead, it passed a resolution 412-3 acknowledging Nixon’s resignation and accepting the committee’s report.

Nixon resigned more than a year after a Senate select committee began investigating Watergate, through over 50 broadcast days of hearings, and days after the release of audiotape transcripts, including the “smoking gun” tying Nixon to the Watergate cover-up. A presidential resignation was unprecedented in the United States. And history shows the public disgrace of the Watergate scandal irreparably harmed Nixon’s ability to hold any public office again. An impeachment trial had nothing more to accomplish.

Cuomo, on the other hand, resigned while the Judiciary Committee’s investigation remains open. The Attorney General’s report on sexual harassment allegations is one of several areas of inquiry for the committee. The committee’s counsel has 500,000 pages of records relating to nursing home deaths alone. It has thousands more regarding Cuomo’s $5 million book deal and priority Covid testing for family and friends. Compared with Nixon, the public investigative record is far from complete.

If the Assembly determines it’s no longer interested in investigating, Lieutenant Governor Hochul will need to make good on her promises of transparency and accountability and order an independent commission to complete the investigations already begun.

Anything less would be, well, criminal.