Lansing — An internal state investigation of the Department of Health and Human Services’ role in the Flint water crisis ground to a halt Thursday after Attorney General Bill Schuette said it was interfering with his criminal probe.
U.S. Attorney Barbara McQuade and Schuette have separately raised new concerns that investigations the Snyder administration ordered of Flint’s public health emergency may ultimately hinder their ability to prosecute state workers for wrongdoing.
Schuette and Genesee County Prosecutor David Leyton sent Snyder what amounts to a cease-and-desist letter Wednesday asking the governor to stop the state auditor general and the HHS inspector general’s investigation of the health agency.
McQuade’s office said a Michigan State Police administrative investigation of the Department of Environmental Quality is legally problematic because some DEQ employees were forced to answer questions under the threat of being fired.
“If the statements were in fact compelled, which we understand they may have been, then the dissemination of those statements could have a substantially negative effect on our criminal investigation moving forward,” Assistant U.S. Attorney John Neal wrote in a May 19 letter to Schuette’s office.
Schuette and Leyton also requested Snyder stop the state police from doing any follow-up interviews of DEQ employees, who also were told the investigation’s findings would not be used against them criminally.
“These two investigations have compromised the ongoing criminal investigation ... as will any other investigations of a similar nature,” Schuette and Leyton wrote in the letter to Snyder.
Peter Henning, a former federal prosecutor, said the compelled statements “cast a pall over the government’s investigation” and could be “disastrous” for prosecutors.
“It’s a real wild card,” said Henning, a Wayne State University law professor. “If they wanted to go after someone who had been promised their statement wouldn’t be used against them, then that may make it impossible to prosecute a person.”
The Detroit News obtained a copy of the state police report on Thursday, but compelled statements were redacted.
Schuette and Leyton’s letter prompted Snyder to ask Auditor General Doug Ringler to suspend his investigation of how the health department handled high levels of lead in blood tests of Flint children and the outbreak of Legionnaires’ disease in 2014 and 2015 that killed 12 people in Genesee County.
Elizabeth Clement, chief legal counsel to Snyder, sent the auditors a letter Thursday asking them to temporarily suspend interviews of state employees “in the interest of ensuring a full and complete investigation into this matter.”
Ringler, an appointee of the Legislature, has been conducting a joint investigation of the state health agency with department’s inspector general, Alan Kimichik, since March. Late Thursday, Ringler sent Snyder a reply letter saying his office would cease interviews “until further notice” in response to Schuette’s concerns.
Earlier this month, Ringler and Kimichik told the governor they needed two more months to complete their investigation.
The Republican attorney general and Democratic county prosecutor, who ran against each other in 2010, said the auditors’ investigation was “having a chilling effect” on their criminal probe.
“Although we are sure this is unintended, the result may effectively be an obstruction of justice,” Schuette and Leyton wrote.
Schuette also has said his investigation is looking into why state and local government agencies did not inform the public or physicians of the spike in deadly Legionnaires’ disease that corresponded with Flint’s use of Flint River water. State health officials have not conclusively linked the river water to causing the bacteria outbreak, but they haven’t ruled it out either.
In their letter to Snyder, Schuette and Leyton indicated they were blindsided by the state police’s investigation that the Snyder administration requested in January, just as Schuette was launching a criminal probe of how Flint’s water became tainted with toxic lead.
“We were not informed that any such investigation had been initiated,” Schuette and Leyton wrote. “We must convey to you the problems that this report has engendered. Based upon rulings of the United States Supreme Court, we believe that this report has the potential to complicate, and in fact have already complicated, our ability to conduct the type of thorough and timely criminal investigation that the Flint water crisis demands.”
In a separate letter to Schuette’s office, McQuade said release of the state police’s investigation and report could hurt a federal probe of Flint’s drinking water contamination and asked that it not be widely distributed.
“We understand that MSP investigators interviewed a number of MDEQ employees in connection with this investigation and that certain of the MDEQ employees were advised that their employment could be terminated if they refused to answer the investigators’ questions,” McQuade wrote.
Evidence from the state police investigation could be inadmissible in court, hindering the government’s ability to prosecute wrongdoing, McQuade said.
“We further understand that the MDEQ employees were informed that their statements could be used for administrative purposes, but not in any subsequent criminal investigation,” McQuade wrote.
DEQ Director Keith Creagh requested the Michigan State Police’s assistance in the internal investigation, state police spokeswoman Shanon Banner said.
One investigator from the state police’s professional standards section assisted DEQ human resources officials “with conducting an internal, administrative investigation of DEQ employees for violations of DEQ policies and work rules, Banner said.
The probe was completed March 26 and turned over to the DEQ for review, Banner said.
At an event in Flint last Friday, Snyder said he has not read the report.
“I don’t view I should be part of that process,” Snyder said.