Governor Kathy Hochul's Executive Order No. 64, signed October 1, hands one office the alleged sexual assault at a Cornell University fraternity house: Attorney General Letitia James's. Five of the seven men named in the woman's civil lawsuit now want a judge to take it away.
Four of them joined a co-defendant's court petition on Thursday, November 5, seeking to remove James from the criminal investigation, the Associated Press reported. The judge who heard arguments on the first petition had said there would be no ruling until the court knew whether the other six men backed it, and gave lawyers until Thursday to find out. Four joined, one of whom had already filed his own papers seeking the same thing. The other two have no lawyers and did not respond, the AP reported. All seven deny wrongdoing, and no one has been charged.
What the order actually says
The executive order is short and specific. It cites subdivision 2 of section 63 of the state Executive Law, which lets the governor direct the attorney general to handle a criminal matter. It covers the allegations described in the complaint in Jane Doe v. Cornell University, pending in state Supreme Court in Manhattan, "which is alleged to have occurred on October 19-20, 2024 in Tompkins County."
It does three things. It tells the attorney general to "conduct a full, reasoned, and independent investigation," including evidence gathering and witness interviews. It allows her office to present evidence to a grand jury and prosecute "if warranted." And it removes the local prosecutor from the case. "The Special Prosecutor's jurisdiction will displace and supersede the jurisdiction of the Tompkins County District Attorney," the order says. It stays in force until the governor changes or ends it.
The post at the center of the petition
The petition rests on what James wrote before she had the case. On September 28, she posted on X and Facebook, linking to a news story about the lawsuit. "I'm holding her in my heart and in my prayers. To her, and to all survivors: you're not alone. We stand with you," the post said, according to the AP.
Stuart Bernstein, a lawyer for one of the men, Gillio Lopes, told ABC News that the post and her later assignment "creates a serious appearance of prejudgment." At a debate on October 8, James defended it. "Those comments demonstrate empathy, and what we need now more than ever in our body politic is more empathy," she said. Her office declined to comment on the petition. The state's lawyers have argued in court that the governor has wide latitude to appoint special prosecutors, the AP reported.
On November 4, the day before the four men joined, James named Jacqueline Kelly as outside counsel to lead the investigation. Kelly, a Cornell graduate and a partner at Boies Schiller Flexner, was the first chief of the Civil Rights Unit in the criminal division of the U.S. Attorney's Office in Manhattan, the release says, and ABC reported that she oversaw the prosecution of Sean Combs there. Her team will report to the attorney general's office. Andrew Miltenberg, the lawyer for the man who started the removal effort, said in a court filing that her appointment "changes the face of the investigation" but "does not establish any change in ultimate authority," the AP reported.
The standard a judge will apply
New York sets a high bar for removing a prosecutor. In Matter of Schumer v. Holtzman in 1983, the state's top court said a public prosecutor should generally be removed only to protect a defendant from "actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence." The Court of Appeals repeated that rule in People v. English in 1996.
Our reading of that standard points to two problems for the petitioners, though no court has ruled. First, the test speaks of protecting a defendant, and none of these men is a defendant in a criminal case. They are defendants only in the civil suit. Second, it asks for a demonstrated conflict or a real risk of abuse, which is more than an appearance. The men's lawyers argue the post shows prejudgment, which is the kind of claim a judge would have to measure against that bar. James has said the claims are without merit, ABC reported.
Our timeline, with day counts
October 19 to 20, 2024: The alleged assault at the Chi Phi house, per the executive order.
November 2024: The woman reports to campus police. That year, Tompkins County District Attorney Matthew Van Houten concludes the conduct, while "morally disturbing," was not rape under state law, ABC reported.
September 28, 2026: James posts about the lawsuit, 708 days after the alleged assault.
October 1, 2026: Hochul signs Executive Order No. 64, three days after the post.
October 8, 2026: James defends the post at a debate.
November 4, 2026: James names Kelly, 34 days after the order.
November 5, 2026: Four more men join the petition to remove James.
November 9, 2026: 750 days since the alleged assault, 39 days since the order. No charges have been filed, and the attorney general's office says Kelly has no deadline.
What to watch
The next step is the judge's ruling on the joined petition, which had not been reported as of Monday. If the petition fails, the investigation stays with James and Kelly, and the next public sign of progress would be a grand jury. Our earlier story explains how the civil case works and why it differs from a criminal prosecution, and our look back at the Duke lacrosse case shows what happened in 2007 when North Carolina's attorney general took over another campus case after the local prosecutor's public statements about it.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
