When former Gov. Andrew M. Cuomo of New York was pressed by congressional investigators whether he had any role in an official report deflecting blame for thousands of Covid-related deaths in state nursing homes, he fell back on one of Washington’s oldest defenses.
“I do not recall reviewing,” Mr. Cuomo said in closed-door testimony this summer, after initially flatly denying that he had seen the report at the time.
This week, a Republican House chairman investigating the matter concluded that those comments had been part of a “conscious, calculated effort” to dodge accountability and urged the Justice Department to prosecute the former governor for lying to Congress. As evidence, the committee cited emails showing that Mr. Cuomo had not only seen the report, but had written parts of early drafts.
The criminal referral could scarcely come at a worse time for Mr. Cuomo politically. It threatens to remind voters of the scandals that plagued the end of his governorship at the very moment he is contemplating a run for mayor of New York City, handing his opponents fresh ammunition.
But former federal prosecutors, congressional investigators and defense lawyers said on Thursday that Mr. Cuomo was unlikely to face prosecution.
The Justice Department has no obligation to take up a case like the one referred by the House Select Subcommittee on the Coronavirus Pandemic on Wednesday. Legally speaking, the referral requests are akin to news releases.
Prosecutors may still be inclined to open a case if the facts presented are new and compelling. But in this instance, legal experts with decades of experience in perjury cases said it would be difficult to convince a jury beyond a reasonable doubt that Mr. Cuomo had lied.
“To prove perjury you have to prove intent to lie,” said Carlton Davis, a former prosecutor who has worked as an investigative counsel for Republicans on Capitol Hill.
“How are you going to do that?” he added. “It seems a very challenging and narrow thing to do, though the department has done it before.”
Mr. Cuomo’s lawyers have insisted he was not trying to mislead the committee. On Wednesday, his lawyers went as far as to send their own referral to the Justice Department requesting that the subcommittee itself be investigated for potential abuse of power.
“This is nothing more than MAGA Republicans playing partisan politics with the justice system at taxpayers expense,” said Rich Azzopardi, the former governor’s longtime spokesman. He said that Mr. Cuomo’s lawyers were sending “a point-by-point rebuttal” to the Justice Department.
A spokeswoman for the department declined to comment.
Republicans and Democrats have a long history of using their positions in Congress to make criminal referrals to the Justice Department, sometimes in a bipartisan way. Several have resulted in prosecution, or later been cited by prosecutors, including recent referrals by the bipartisan House committee that investigated the Jan. 6 Capitol riot.
But the practice has also frequently veered into partisanship. In just the last few years, the Justice Department has received formal Republican referrals of Hillary Clinton, Michael D. Cohen, Planned Parenthood, Hunter and James Biden, and several government officials involved with investigations into former President Donald J. Trump’s ties to Russia.
The timing of the coronavirus subcommittee’s action, as Mr. Cuomo mulls a political comeback and just days before a major election, invited questions of partisanship. So did the fact that it was signed only by its Republican chairman, Representative Brad Wenstrup of Ohio, and not his Democratic counterpart.
Dani Walker, a spokeswoman for the subcommittee’s Democrats, called the action a “pre-election stunt.”
However, she did not directly respond to questions about whether the minority party believed there was evidence of perjury. Ms. Walker also said that Democrats on the subcommittee believed the inquiry had “reiterated what was found” in investigations by the New York attorney general and the State Assembly. Both of those earlier inquiries concluded that Mr. Cuomo’s administration had undercounted the number of nursing home residents who died of Covid.
Mr. Cuomo’s critics — Democrats and Republicans — took the subcommittee’s 107-page referral as proof of wrongdoing.
“Andrew Cuomo lied not only to Congress, but also grieving families after sending their loved ones to Covid-filled nursing homes against C.D.C. guidelines,” said Brad Lander, the New York City comptroller and a leading candidate for mayor. “He should face accountability for all of it.”
Mr. Cuomo has not actually declared his candidacy for mayor. But allies say he has been eyeing a possible run for months, and speculation about his future has spiked following the indictment of Mayor Eric Adams on corruption charges in September. State records show that Mr. Cuomo recently changed his voter registration to a Manhattan address from Westchester County.
Mr. Cuomo served as governor for a decade before resigning in 2021 amid a wave of sexual harassment allegations. (He denies them.) At the time, he was also under scrutiny for his administration’s handling of the pandemic, particularly the state’s guidance for nursing homes.
Mr. Cuomo’s legacy on the latter issue is complicated.
He was lauded during the pandemic’s early days for his daily news conferences. But New York quickly came under scrutiny by state and federal investigators, including the Justice Department, over March 2020 guidance by the Department of Health directing nursing homes to readmit people who had tested positive for the coronavirus. None of the investigations ever led to criminal charges.
The Health Department issued a report in July 2020, not long after Mr. Cuomo signed a lucrative book deal about his pandemic response, to try to rebut early criticism of the policy. Top Cuomo aides pushed to exclude the number of deaths in state nursing homes, The New York Times reported in 2021.
Mr. Cuomo has consistently argued that data about coronavirus deaths was unreliable at the time, and his administration did not want to publicize numbers that could be false. When he was summoned by Congress this summer to answer questions about the topic in a private interview, he initially said he had no role in compiling the report but added later in the interview that he did not remember seeing it.
Emails and testimony from other witnesses first reported by The Times in September appear to contradict that statement. Mr. Cuomo’s lawyers subsequently wrote to the subcommittee in October trying to head off an adverse finding. They did not dispute the documents veracity, but said Mr. Cuomo did not remember them.
Republicans remained unpersuaded. In the referral, they called Mr. Cuomo’s lack of recollection about his role in the report “questionable, particularly in light of his memory on other topics,” and argued that it was not exculpatory.
But defense lawyers and former congressional investigators said the Justice Department would likely take a different view.
“First and foremost, it’s very difficult to prove, and they won’t take a case for prosecution unless they think they can prove it,” said David I. Schoen, a lawyer who defended Mr. Trump and Stephen K. Bannon, a former Trump adviser who served prison time for refusing to comply with a subpoena from the House Jan. 6 committee.
Mr. Schoen added that the department under Democratic leadership could also be “politically” motivated to snuff out the case.
Susanne Sachsman Grooms, a longtime lawyer for Democrats on the House Oversight and Accountability Committee now in private practice, said the issue would likely hinge on a question of memory.
“Frankly, I think it’s almost impossible to prove that somebody is intentionally lying about their memory,” she said, “unless you have specific evidence from the right time period that says, ‘I’m about to lie about my memory.’”
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