HH: I start this first hour, it’s a tradition here. We love to bring on people with whom I will not agree on much, but who are smart and experienced, and have great stories to tell. And that is indeed how I describe Steven Cohen, a former federal prosecutor turned white collar criminal defender, who has been for the last many years the senior aide to now-New York Governor, Andrew Cuomo. But before that, when Andrew Cuomo was the state attorney general in New York, he was also the chief of staff there. Steven Cohen is also credited with leading Governor Cuomo’s effort to legalize same sex marriage in New York, as well as his transition in other ways. Steven Cohen, welcome to the Hugh Hewitt Show.
SC: Well, thank you so much for having me on today.
HH: It’s terrific. You were also an AUSA. Did you work with Andy McCarthy in those days?
SC: I sure did. I worked with Andy McCarthy. In fact, there’s a whole illustrious group of former assistant U.S. attorneys who seem to be populating different jobs throughout the country right now.
HH: Well, congratulations You’ve begun a new firm, Zuckerman Spaeder, or actually, you’ve opened the New York office of Zuckerman Spaeder. What are you going to be doing now that you’ve left government there?
SC: You know, the firm has a very long and well-known history of handling complex commercial litigation and some white collar work. And we’re going to try to set up the same in New York. Plus, I am hopefully going to do some strategic advisory work. You know, my view is litigation, although sometimes necessary, often times is the result of failing to get to what you wanted to get. And so the question is how do you avoid litigation, and how do you use litigation as a tool rather than as an end?
HH: Let me ask you, I want to talk primarily about same sex marriage, but if you had a call waiting for you from the chairman of the board of Solyndra, is that the kind of thing you want to do, if they say hey, help us?
SC: Yeah, look, you know, it’s a funny business. And it’s politics, and it’s law, but it’s just about anything. The most interesting things tend to be the most complicated situations. It tends to be the scenario where things have gone wrong, and how do you right them. The truth is, though, the optimum situation, people always use the phrase crisis management. The optimum situation is crisis avoidance. I used to say to people when I was practicing law the first time, when I left the U.S. attorney’s office, that almost by definition when you get the call, it’s too late, because the call says by the way, we just got a subpoena. Yeah, well you should have called me a month ago so we could have avoided the subpoena.
HH: Right. Now…thank you, by the way, for coming to my school, Chapman University School of Law. Katherine Darmer, your old colleague from the United States attorney’s office, facilitated that. I hope you’ve had a great visit at Chapman.
SC: It has been terrific, and you know, just eager, bright, smart people, and just beautiful surroundings.
HH: Yeah, a pretty beautiful weekend here. Ready to go back to Manhattan?
SC: I am always ready to return not just to Manhattan, but to Brooklyn, the borough of my home.
HH: Now are you in way affected by the Occupy New York people?
SC: You know, I used to work across the street, curiously enough. Zuccotti Park, nobody mentions it, happens to be across the street from the New York State attorney general’s office. And I can say I was affected once so far when they marched across the Brooklyn Bridge, and I couldn’t figure out why the police had shut down the bridge. It’s very odd that in the middle of the day, the Brooklyn Bridge would suddenly be shut. And it turned out that there was an action on the Brooklyn Bridge.
HH: Now the Mayor today, I’ve read reports, said they can stay as long as they want. Are you surprised by that?
SC: The reality is the weather is about to turn. And so my guess is that the Mayor is playing a hunch that once the temperatures drop, the crowds may disburse. But it’s a curious thing. You know, you go downtown, and you see them. They’ve almost become part of the fabric of downtown. Now I don’t know what that says about Manhattan, but it really isn’t as if it’s a startling thing that you see.
HH: All right, now Steven Cohen, in the New York Times story about when you left the Governor’s staff, it said that in addition to overseeing Andrew Cuomo’s transition to governor, you also directed the administration, the New York administration’s effort to legalize same sex marriage, which lawmakers approved in June just before you left the administration. What are they referring to, and how/what was your job in that debate?
SC: So in March, the New York budget is a complicated thing. We came into office, there was a $10 billion dollar budget deficit. So the biggest thing going after the election, the Governor gets elected in November of last year, and so the question then becomes what is the legislative agenda? We get the budget passed on time, which was really an extraordinary event for this or any other governor, closed a $10 billion dollar deficit, and then the question is what is the rest of the agenda? And a lot of the agenda items were very operational in nature, and the Governor said he believes in marriage equality, same sex marriage. He announces he is going to push for it in the legislative session, and I am placed in charge of it, which in and of itself was unusual, because in my four and a half years with Andrew Cuomo as a general matter, I never had primary leadership on any particular issue, on the theory that I was hovering above everything, and if something got into trouble, I was available. And he placed me in charge of it, and the direction was figure out how we get it passed, come up with a strategy, and drive it home.
HH: And in terms of the closeness of that, it came down to votes in the Senate on the side of the Republicans. How much in doubt were you at the very last moment that it was going to get done? By the way, I opposed it every step of the way, but you knew that, probably.
SC: Yeah, and look, you know, it is, it’s an issue that people feel strongly about on both sides of it. And you know, it’s an interesting discussion as to what it is and what it means. My role was much more of the practical, get it done and how do you get it done, which is a fascinating problem in New York. And a little bit of the history, in 2009, it was supposed to pass. We were in the AG’s office at the time. David Paterson, who people may or may not have heard of, was the predecessor…
HH: (laughing) We’re on in New York City right now, so I hope they’ve heard of them there at least.
SC: Well, you know something? You blink….
SC: …and things change in New York. So David Paterson was the governor, and there was this expectation that same sex marriage was going to pass. At the time, it was a Democratic majority in the Senate. And by the way, this is only a Senate issue. It has passed repeatedly in the New York State Assembly. So the game was always the Senate. And so in ’09, everybody expected it was going to pass. There were 32 Democrats at the time in the Senate, 30 Republicans. And it ends up being defeated. Yeses were 24, no’s were 38. So that’s the context in which we enter the fray. The numbers had tightened up a little bit because of some elections. But there was a general expectation that we wouldn’t get it done. I always felt we probably could get it done. And as we got closer and closer, except for a few bumps along the way, I felt that we would get it done, although I was never exactly sure how. But I thought that if we stayed the course, it was likely to happen.
HH: Now in terms of just political fallout, do you think it cost the Dems Weiner’s seat in Manhattan?
SC: No, I think that’s a different phenomenon. I think Weiner’s seat was a whole series of bad events for the Democrats. It was Weiner himself was a problem. It was Obama’s favorability rating at the time was a problem. It was the way Weprin, who ran for the seat for the Democrats, was selected, which it had the feel of being imposed in an old-style, back room way. All of those together, I think, led to the defeat of Weprin, and the loss of that seat to the Democrats. But I don’t really think, in fact, very few people have said that there was any kind of backlash from the marriage equality effort that led to the loss of that seat. And in fact if I’m remembering correctly, the polling in that district on marriage, although it wasn’t overwhelming support, it was majority support by probably 5, 6, 7 points in that district.
HH: The Hasidic community was said to be upset by this…
HH: …and turned out against Weprin as a result.
SC: Yeah, but you know, the Hasidic community, which is, if you want to talk about a complex political situation, the Hasidic community was opposed to it. They were represented in Albany at the time, those last two weeks, quite a robust debate in the Capitol. Ulta-orthodox Jewish groups were there, in pretty decent numbers. I met with them privately a number of times, and they were very respectful. They understood that it was likely to pass, and I’m not going to say that they were fine with it and welcomed it, but they understood it was one of many issues that they cared about, and not necessarily the most prominent.
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HH: This hour on the Monday after the Values Voters Summit in Washington, D.C., in which every single Republican candidate pledged that they would do their best to defend traditional marriage, I’m talking with one of the architects of the breakthrough legislative effort for same sex marriage in the Empire State, New York. I say breakthrough, even though I opposed it, and I pretty much would guess 90% of the audience did, and was done through a legislative process that Steven M. Cohen, as the chief of staff “secretary” to Governor Andrew Cuomo oversaw, and before that, four years with the attorney general when Andrew Cuomo was attorney general. Steven, before we go back to the specifics of this, I’ve known a lot of New Yorkers for a long time – Mark Gearan, Tony Shores, the late Phil Friedman, but I’ve never met your boss or your old boss. And I’m curious, and probably most of this audience doesn’t have much of a fix on him, except my New York audiences. What do they need to know about Andrew Cuomo?
SC: He is a very practical hands-on person. He believes in results. He is somebody who believes almost from his experience in childhood that government is supposed to work. It’s supposed to work for the people, and that when government isn’t working, which is the situation that I think many people have observed was the case in New York, it’s to the detriment of all of us. And so he really is a person who wants to figure out how to get the processes of government back in the firm hands of people who know how, to accomplish things. And first and foremost, I would say you can put aside the ideology, you can put aside the politics, you can put aside the progressive issues he believes in. Fundamentally, he wants government to work for the people. And the first six months was interesting, because I think people were surprised by some of the positions he took. Some people were, I dare say, disappointed in his view of tax increases and reining in government, and his view of public employees unions. But beyond that, I think Andrew Cuomo is fundamentally just a decent person, very little pretensions, and I’m happy that I consider him a friend.
HH: Now I have gone out there, I’ve taken some odds on this bet, but with some pretty senior people, predicting and betting that he will be replacing Joe Biden on the ticket in 2012. What do you think the odds of that are?
SC: I wouldn’t put it high. You’ve got to understand the person we’re dealing with. On the one hand, look, if somebody asked him to take a position of that kind, you know, first and foremost, he believes in this country. And if he’s asked to serve, he has a hard time saying no. But with that aside, he has been governor for now ten and a half months, which is a blink of an eye. I think he feels an obligation to the state of New York, a deep obligation. And remember, we have been through, he is the fourth governor in I think something like three years. And it is destabilizing to keep changing governors, through whatever the reason. So for that reason alone, he would be very reluctant to consider something that would cause him to not devote his full time and attention to the state of New York.
HH: But Steven, if the president of the United States says I’m sending Joe Biden to State to replace Hillary, nice edge aside, because I’m dying out here politically, and I’m going to lose 48 states unless I turn this around, the country needs you, I need you…he’s going to say yet, isn’t he?
SC: I think I began by saying he believes in this country, and he believes that when you’re asked to serve, you have to serve. So if it were to occur in that manner, you may have something.
HH: All right, now let me talk to you about his Catholicism. His father, of course, who I never met, did you ever have a chance to meet Governor Cuomo, the first Governor Cuomo?
SC: I actually worked as a relatively young man for Mario Cuomo. I was an intern in 1984 through 1985, and I came back and worked the first summer I was in law school for Mario Cuomo.
HH: Okay, so he gave the famous Notre Dame speech, and obviously, religion and politics huge right now, and I think I’ll be talking about it the rest of the show after we’re done. But the great address at Notre Dame on a Catholic conscience when it comes to abortion. When this same sex marriage issue came up, the Archbishop, Cardinal Dolan, made a very public demand that this not happen. How did Andrew Cuomo deal with his Catholic constituents who felt, for theological reasons, this was a very dangerous and bad thing for society to do?
SC: I’m glad you asked the question that way, which was a smart and thoughtful way to ask the question. You know, there are many, many Catholics in New York who support the issue, and supported the Governor in his approach to the issue. You know, we live in a pluralistic society. There are people on both sides of this issue. And I think that this is one of those types of issues that many people who happen to be Catholic believe that the Church has a position. It’s the Church’s right to have whatever position it wants, but that when it came to the civil authority, the appropriate thing to do at this point in our history was to support the notion of same sex marriage. And I must say that there really wasn’t that much in terms of pressure from Catholic members of this state. I think you hit it at the beginning. It was, that there were more ultra-orthodox Jewish organizations, and more other religious organizations that were more vocal, putting the Church itself aside, than the Catholic members of our state. And I’m not sure why that is. I certainly don’t pretend to be an expert in this aspect of the issue. But compared to, I think, the days of Mario Cuomo and his view on the death penalty, and his view on abortion, this didn’t really even approach it.
HH: Were you surprised by the lack of opposition organization from the bishops? I mean, there are a lot of bishops, a lot of Catholics in New York, obviously. Were you surprised?
SC: I’m not sure if I’m going to use the word surprised, because if you think about it, at the time, my focus, I had a very specific focus, which was managing this operation to try to get this accomplished. So for me, I was prepared for more opposition from all sorts of places. When it didn’t come in, there was a sense of relief. With respect to the Church itself, I think there were issues that they cared very much about that they were very vocal about. I think that we tried to be very careful in crafting a religious exemption that allowed the Church to operate in the religious sphere that was, if not, and I won’t say that it was acceptable to the Church, because they were opposed, but that at least it showed some respect and a recognition of the important work that is done by the Archdiocese in the state of New York. But with that said, across the board, I thought that New York was interesting, because to the extent there was vocal opposition, it didn’t get much traction.
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HH: Mr. Cohen, do you think sexual orientation is a suspect classification?
SC: Well, in New York, it is by law.
HH: Was that part of the legislation?
SC: No, that was a piece of legislation that was passed, if I’m remembering correctly, about six or seven years ago under the Pataki administration.
HH: Okay, in federal law, what do you think? Ought the courts ought to embrace the district court ruling in the California case which is being waged by Ted Olsen?
SC: My personal view, and I’m no Constitutional scholar, but I believe that on this issue, New York has gotten it about as right as you can, which is sexual orientation, you can’t, you should not be discriminating against people based upon their sexual orientation. Now some may disagree with me, but at least in New York, that has been a principle that’s been embraced by law, and has been both workable, and I think led to a society that is more inclusive.
HH: Now even advocates for same sex marriage will sometimes say oh, you know, it’s more like gender, and therefore intermediate scrutiny is necessary, so a balancing can go on. Does that have any appeal to you as an argument?
SC: It is, and I apologize, because I actually, it’s been a while since I actually looked at the way the New York law works in practice. There are always exceptional circumstances when you’re talking about gender, regardless of whether this is about sexual preference, sexual orientation, or gender. But as a general matter, I mean, it has always struck me that discrimination in this area is discrimination, and it should be treated as such.
HH: But that would cause a revolution in law beyond marriage. And there are different issues to me. I think New York legislating same sex marriage is much less of a burden on the society and judicial legitimacy. Justice Breyer was just here three weeks ago, Steven, and spent a couple of hours in the studio with me talking about judicial legitimacy.
SC: On his book, I hear.
HH: Yeah, a great book. Do you think his, that the court cases about same sex marriage as opposed to the legislative process you pursued in New York cause greater stress upon the general political health of the country?
SC: Yeah, you know, there is a long history in this country, good and bad, of the imposition of new rights, of new views of what the social obligations are, in the courts. And the truth is that it’s easier when it’s legislated. It’s easier because it is the will of the people speaking. And it’s much more difficult for people to raise a complaint that somehow, what I think people call the least dangerous branch, but also in many ways, the least democratic branch, the court system, is grappling and resolving these issues. Now with that said, when you look at all sorts of areas involving social justice, the courts, at least in the last century, have been the one place where people were able to look for a sense of justice and equality. And I wouldn’t want to discount that at all. But I think generally speaking, and this was certainly the case in New York on many of these issues, enacting these things legislatively feels a whole lot better to the larger group of people than it does when the court imposes new rulings.
HH: Does the Defense Of Marriage Act, the federal law passed with bipartisan support, signed by Bill Clinton, is that Constitutional, in your view?
SC: You know, I haven’t looked at it closely, and I think you alluded to it before. There’s a provision in the Defense Of Marriage Act that deals with the Full Faith and Credit Clause. And I just don’t understand how you square the circle of the relationship between DOMA and the Full Faith and Credit Clause. That, I think, is the one issue that in my mind remains open, and I’m not sure how it gets resolved by a court. But as a general matter, leaving things up to states, especially coming from state government, where I just spent four and a half years, I tend to think that’s not a bad thing. That’s a good thing.
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HH: When we went to break, we were talking about the Full Faith and Credit Clause and the New York statute, Steven Cohen. My, the bottom line question is when this passed, were you aware that you would be legislating, or was it a consideration that New York might be doing much more than changing its own law, it might be changing the law of Georgia, New Mexico and Florida, and everywhere else in the United States?
SC: Well, you know, by the way, let me just inform your listeners, because I, we refer to the New York law. It was actually enacted, not the same sex marriage law, but the Sexual Orientation Non-Discrimination Act, was passed in December, 2002, which changed the human rights law in the state of New York to include in the definition of protected classes sexual orientation. But with that said, the history of New York was interesting. We had court decisions that recognized out of state, and even out of country marriages. So in New York, prior to the passage of the Marriage Equality Act, you already were living with the reality you’ve just described, which is to the extent that somebody had been married, or two people had been married in Massachusetts or Canada, under New York law, those marriages had to be recognized in the state of New York. So I can’t say that I wasn’t aware of the fact that that was a result that may flow from this, although I know some other states have taken a different view than those of the New York courts.
HH: Now I want to get to the phones, but one more question from me, which is if this is reversed next year, if there are legislative setbacks in New York, or there’s, I don’t even know what the initiative process is in New York, but somehow at some point the people of New York say oops, mistake, we want to go back to the way it’s been for 2,500 years in Western civilization, would it be Constitutional in your view, Steven Cohen, to do so?
SC: To now take away the marriages that were entered into? Or…
HH: No, no, no. That’s…
SC: Look, I think that could you repeal the legislation? The New York process is a very different than the California process. If the legislature decided to reverse the action it took last June, I suspect, without having spent much time looking at it, that they would have the right to do that.
HH: Mike in Santa Monica, California, you’re on with Steven Cohen. Go ahead, Michael.
Mike: Hello, Mr. Cohen. I wanted to discuss the social implications of this, which hasn’t been really discussed so far, I don’t think. From what I take it, marriage is an institution that the state has an interest in basically, not every couple is going to have children. Some are infertile, some will get married at a later age, but most people will have children. And I think the implication here is that that is no longer going to be a top consideration, and that producing the next generation under a male/female relationship is best for the society and for the culture. And basically, you’re trampling all over that and saying no, it really doesn’t make any difference.
HH: Thank you, Mike. What do you think, Steven Cohen?
SC: Yeah, look, and I respect Mike’s opinion, but I guess I have two responses to that. One is that there are all sorts of benefits and rights that flow from being married to couples, whether those couples choose to have children or not. And there are many, many couples, a man and a woman, who don’t, can’t, don’t want to have children. Nobody suggests that we should have some kind of test to see whether or not the union that you’re entering into is one in which you have a good faith intention of procreating. But he said something else which was interesting, and which I have always thought was interesting about this issue. You know, you could argue, and I think it’s a valid argument, that the state shouldn’t be involved in marriage at all, except for some limited licensing issues. And therefore, it is purely something that operates in the religious sphere. You want to get married? Literally, God bless you. You go to your rabbi, you go to your priest, you go to whomever it is that is your spiritual leader, and you get married. But the state chose to get involved in this business. And to me, there’s a difference between a religious marriage and a state-sanctioned marriage. And once you’re in the realm of the state-sanctioned marriage, I think you have to make it available, regardless of your sexual orientations or your views of what an appropriate union is.
HH: But that’s a very postmodern view, Steve Cohen. That has not been the view that you have to extend it to people for 2,500 years.
SC: Well, but for 2,500 years, it has been sporadic that the state has been involved. This, for a long part of that time, was really a religious institution. And look, it is, it’s an interesting thing. You look at the history of how marriage has developed, and how and why it became a civil institution as opposed to a religious institution, and I hear you on the point that there is a long history here, but I think that that point doesn’t really carry the day given that there have been all sorts of areas in which there’s a long and often times troubled history of legal recognitions available for one set of people and not for another, which we look back on and say this was wrong.
HH: It clearly doesn’t carry the day against a legislated vote. It carries the day against suspect classification/fundamental rights analysis, at least with some of us.
SC: And again, you and I don’t disagree, I think. I’m much more accepting and respectful of a court decision which imposes these types of things. I happen to believe in them, so it’s easier for me to get my arm around them. But I think we both agree that the best case scenario is a legislative scenario.
HH: Steve in Portland, what do you think about that?
Steve: Morning glory, Hugh.
HH: Evening grace, sir.
Steve: Thanks for having such thoughtful guests as Mr. Cohen on. Mr. Cohen, I just heard you earlier to say that the people spoke, and that went through back in your state of New York. I’m out here in Oregon, and I just wanted to get your perspective on the fact that back in 2004, we had Ballot Measure 36, which passed overwhelmingly, 57-43%, amending our Oregon Constitution, defining marriage as one man-one woman. And now, here we are, fast forward seven years later, and the Oregon, the Basic Rights Education Fund, a non-profit organization, is trying to get it resurrected, even though we have now have it enshrined in our constitution here, sending out flyers, running promotions that, you know, promoting civil marriage for gay couples. What’s your perspective on the fact that our citizenry here has spoken on it? Do you think they have the right to try to circumvent the will of the people?
HH: Okay, he has to wait until after the break.
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HH: I want to make sure in this short segment that I thank my guest, Steven Cohen, for spending an hour with me talking about this in a great conversation. But I also want to make sure you get a chance to answer Steve in Portland’s question, Steve Cohen. The will of the people in Portland expressed overwhelmingly. Ought there to be some rest period? And what about their will of their people over being overturned by New York’s via the Full Faith and Credit Clause?
SC: Look, I think the Full Faith and Credit Clause is a more complicated issue. And you either believe that you have a union of states where each is going to recognize the decisions of the others or you don’t. And that sometimes leads to results you may not like. Sometimes, frankly, it leads to anomalous results. As for Oregon and the decision to, or the effort to revisit a decision, California similarly has these types of scenarios where things get on the ballot, there are initiatives, there are recalls. It’s not something that happens very often in New York. But it has always struck me that if that’s the way the law is set up, that’s the way the law is set up. And more often than not, how you feel about it depends upon what your perspective is on the issue that’s being challenged, reopened or reconsidered. And I don’t disagree that a period of repose is sometimes a good thing. You’ve got to build it into the law, though.
HH: Last question for you, because I don’t want to let an experienced federal prosecutor from the Southern District of New York walk away without asking this. Should the Gitmo prisoners be tried in Manhattan like Khalid Sheikh Mohammed?
SC: You know, I have looked at this issue since it first came up. I live in Brooklyn, New York. My, our apartment looks out on what once was the World Trade Center. I think that the notion of having these trials in New York City is not a great idea. And I think that we have to be very careful about deciding which cases do even belong in civil courts in the United States. And that’s something that I don’t lends itself to quick, easy answers. I understand that there’s a tendency to want to use the civil justice system. And in many cases, and maybe even most cases, that’s appropriate. But I don’t believe that’s appropriate in every case. And my view is you need to take a long, hard look at those things. But the notion of trying those cases, especially in Lower Manhattan, I just don’t think it makes any sense both practically, but also in terms of the emotional realities of what the city has been through. I’m not saying they shouldn’t be tried, not saying it shouldn’t be handled, not saying that’s the case with many cases, that they can be properly handled in the Southern District, in the courthouse downtown. But there are some that I just think you’re better off not having them there.
HH: Steven Cohen, great to have you on. Next conversation, I hope we’ll continue that conversation about where and when to try the terrorists that are at Gitmo. Thanks for spending the time, thanks for coming to Chapman Law School.
End of interview.