Elkan Abramowitz of Morvillo Abramowitz
Elkan Abramowitz of Morvillo Abramowitz ()

ALBANY – Gov. Andrew Cuomo’s chief counsel is a likely witness in an ongoing federal probe into the administration’s handling of the Moreland Commission, according to an attorney hired by the governor’s re-election campaign to represent the executive branch in the investigation.

White collar criminal defense expert Elkan Abramowitz said Friday he was brought into the case because Mylan Denerstein, counsel to the governor, will be a witness in the investigation being conducted by Southern District U.S. Attorney Preet Bharara, who is apparently looking into the formation, functioning and disbanding of the panel that Cuomo created last year to root out public corruption.

“I have not been retained by the governor, but by the executive chamber to substitute for Mylan Denerstein as counsel to supervise the Moreland Commission investigation,” Abramowitz said in an interview. “[Denerstein] is involved in the investigation. She will be a witness. My role is to help coordinate a response to the U.S. attorney’s investigation. I don’t represent any individual. I represent the entity.”

Although Denerstein is involved in virtually all high-level legal matters in the administration, it is unclear precisely what role she played with regard to the Moreland Commission.

In a statement, Cuomo said he would have no further comment on the commission or investigation.

“As I believe the U.S. Attorney has made it clear that ongoing public dialogue is not helpful to his investigation, we will have no additional comment on the matter,” Cuomo said in the statement.

Abramowitz, a partner at Morvillo Abramowitz Grand Iason & Anello, contributed $11,000 to Cuomo’s re-election campaign, according to records on file at the state Board of Elections.

Abramowitz will be paid an undisclosed sum out of the governor’s political funds, according to Morris Peters, a spokesman for the Division of the Budget.

“Although the chamber could have procured counsel at state expense, the governor’s campaign will pay for the lawyer acting as chamber counsel to avoid any cost to taxpayers,” Peters said.

It is not clear why Cuomo’s campaign is paying Abramowitz since he is representing the executive branch rather than the governor. Abramowitz would not reveal his fee.

Cuomo created the Commission to Investigate Public Correction through Executive Order No. 106 on July 2, 2013, following through on a threat to investigate the Legislature unless it adopted his ethics reform package.

The extraordinary order utilized two separate subdivisions of the Executive Law to vest the panel with the power to probe both the executive and legislative branches. Under Section 6 of the Executive Law, the governor empaneled the “Moreland Commission,” an entity with jurisdiction to investigate the executive branch and its agencies, such as the Board of Elections.

But Cuomo expanded the scope of the panel by invoking another provision, Section 63 (8) of the Executive Law. Under that provision, the 23 lawyers on the 25-member panel were deputized as assistant attorneys general, with the approval of Attorney General Eric Schneiderman.

With that, the commission had the authority to examine the workings of the Legislature and legislators with subpoenas.

The three commission chairs— Nassau County District Attorney Kathleen Rice, Milton Williams Jr. of Vladeck, Waldman, Elias & Engelhard and Onondaga County District Attorney William Fitzpatrick—had veto power over subpoenas. According to the executive order, their unanimous consent was required before any subpoena could be issued.

The formation of the commission immediately brought the executive and legislative branches to loggerheads, with lawmakers complaining that the governor had violated the separation of powers doctrine.

Ultimately, after the panel issued subpoenas demanding that law firms employing lawmakers disclose detailed client information, the Legislature passed a portion of the governor’s proposed ethics reforms. In return, Cuomo defunded the panel. However, the executive order creating the commission has not been withdrawn, and its status as a supposedly independent legal entity remains blurry, observers say.

Bharara criticized the dismantling of the commission and mounted his own investigation several months ago. It is unclear what Bharara has found through subpoenas he has issued.

More recently, an article in The New York Times that expanded on other media reports indicated that the executive chamber meddled in the affairs of what was initially billed as an independent panel and attempted to control the Moreland Commission’s investigations.

The Cuomo administration has denied interfering with the commission’s work, but the governor has stated that he had a right to direct the panel’s inquiries since he created the commission.

In May, the Moreland Commission hired a prominent Albany white collar criminal defense attorney, Michael Koenig, a partner at Hinckley, Allen & Snyder, to represent it in the Bharara investigation.

According to Jennifer Freeman, spokeswoman for the comptroller, the office just received the attorney general’s sign-off on Koenig’s hiring on Thursday. Koenig declined comment on Friday.