AG v. AG: Flint evidence concealment claims 'not true,' top assistant says

Jonathan Oosting
The Detroit News
Solicitor General Fadwa Hammoud talks about the Flint Water crisis and her opportunity to work with Wayne County Prosecutor Kym L. Worthy.

Lansing — Michigan Solicitor General Fadwa Hammoud’s claim the state may have concealed millions of Flint water crisis documents relevant to a criminal probe in the basement of a government building is "not true," a top assistant in Attorney General Dana Nessel's office argues in a new court filing.

And neither are several other related assertions, Assistant Attorney General Christina Grossi said Thursday in what she acknowledged was a "highly unusual" attempt to address multiple "misstatements" by a colleague on the other side of the department's firewall.

Hammoud last week alerted Genesee County Judge Joseph Farah to the newly discovered “trove of documents” as she requested a six-month delay in the criminal case against former Michigan Department of Health and Human Services Director Nick Lyon. He is headed toward trial for involuntary manslaughter and other charges arising from an investigation of the Flint lead-contaminated water crisis.

The solicitor general also announced Monday she had fired special prosecutor Todd Flood, saying she did so after realizing legal "discovery was not fully and properly pursued from the onset of this investigation."

Nessel in January named Hammoud to lead the ongoing Flint criminal investigation through the Office of Special Counsel within the Department of Attorney General. Grossi leads the department’s State Operations Division, which handles a variety of legal issues for state agencies.

"The strength of our legal system is zealous advocacy on both sides of an issue, and my office is utilizing some of the most talented attorneys in the state to zealously represent their clients’ interests in the Flint matter," Nessel said in a statement. "This is the legal system at its best, and it shows that my Department’s conflict wall works. The State of Michigan is well served on both sides of this important issue."

The dispute within the Attorney General's Office is centered around documents and other material from the Department of Environmental Quality that had been stored in the basement of the Department of Technology, Management and Budget’s Joint Operations Center. 

Hammoud requested additional time to examine the evidence, which could delay the criminal case against Lyon that began in June 2017. Whether the material was “concealed or simply overlooked,” a thorough examination “will serve the interest of justice,” Hammoud and Wayne County Prosecutor Kym Worthy said last week in a filing.

But the material in question had already been reviewed in accordance with procedures that Flood had agreed to, and “responsive” documents related to the Flint investigation had already been produced, Grossi said in a rare intervention notice by the Department of Attorney General. 

Michigan Assistant Attorney General Christina Grossi, left, is defending the Department of Attorney General's handling of recently rediscovered Flint water documents in a state building.

The stored material did not consist of millions of documents, she said. Rather, it was mostly material cleared from the offices of environmental regulators Michael Prysby and Stephen Busch — who pleaded no contest to misdemeanors in 2018 as part of plea deals — after they had been put on leave. Accompanying hard drives likely contain back-up images of computers that had already been searched, Grossi said.

The materials from Busch and Prysby mainly included training manuals, personnel files, DEQ policies and binders containing” metering and agenda notes not relevant to the Flint case, Grossi said.

In her filing last week, Hammoud claimed the evidence included a “list of names ominously titled ‘Phones/Wiped,’ along with data from at least one cell phone that (her team was) told did not exist.”

The Office of Special Counsel never provided the department with the names on that list, so it is unclear whether data from the phones in question had already been duplicated and preserved, Grossi said.

All told, Grossi outlined an extensive document discovery process and said the Department of Attorney General had produced 305,692 documents in the case consisting of more than 1,509,364 pages. Several state agencies hired private attorneys to help them respond to subpoenas and requests for information, she said.

Any “allegations of misconduct against assistant attorney generals” who were involved in the document production “are unsupported,” Grossi wrote.

The Office of Special Counsel declined direct comment on Grossi's filing, but Hammoud and Worthy issued a joint statement saying they "will address all matters relevant to our motion in court."

Private attorney Chip Chamberlain, who is defending Lyon in the criminal case, said Grossi’s filing is “entirely consistent” with his understanding of the discovery process and called Hammoud’s claims to the contrary “deeply troubling.”

In this Aug. 20, 2018, file photo, Nick Lyon, director of the Michigan Department of Health and Human Services, listens to the judge during his preliminary examination at Genesee District Court in Flint, Mich. Lawyers for Lyon are vigorously opposing an effort to put his Flint water criminal case on hold for six months, saying it's a sign of the prosecution team's "dysfunction."

“They appear designed to smear Mr. Lyon together with any number of hard-working public servants who tried to keep politics out of the whole process,” Chamberlain said.

Former Attorney General Bill Schuette, who appointed Flood to lead the investigation into the Flint water crisis, first announced charges against Lyon on June 14, 2017.

Lyon is set to go to trial in Genesee County Circuit Court on two counts of involuntary manslaughter and one count of misconduct in office connected to the Flint region's 2014-15 Legionnaires' disease outbreak that killed 12 people and sickened another 79 people. 

In a Monday filing for Lyon, Chamberlain urged Judge Farah to reject Hammoud’s request to delay the case because of the material that had been stored in the basement of a state government building.

“The stay request is worse than meritless,” he wrote. “The motion invites the court to rescue the prosecution from its own team’s dysfunction, all at the expense of Mr. Lyon, who has been vigorously proclaiming his innocence by diligently seeking relief from the courts.”