Nessel: New evidence, political plea deals prompt restart of Flint probe

Beth LeBlanc
The Detroit News
Attorney General Dana Nessel

Attorney General Dana Nessel cited new evidence, drawn-out preliminary examinations, plush plea deals and the political timing of charges in the Flint water crisis investigation for prompting a new review that required the dismissal of all criminal cases.

In a Friday interview with WDET, Nessel said she was suspicious of the criminal charges prior to taking office in January and wanted her team to ensure no one was made “political scapegoats” in Republican former Attorney General Bill Schuette’s failed bid for governor last year.

“How strong were these cases in the first place and were they only charged to help Bill Schuette become governor?” the Plymouth Democrat told WDET.

The accusations have been rebutted by Schuette and a former FBI agent as Nessel's office prepares for a June 28 town hall with Flint residents, many of whom expressed their outrage over the dismissal of criminal charges against eight defendants.

Nessel expressed some of the same doubts about political motivation on the 2018 campaign trail. But she noted several times during the Friday radio interview that she is not privy to the criminal cases being handled behind a conflict wall by Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy. Nessel instead is handling the state’s civil cases related to Flint.

On Thursday, Hammoud and Worthy made the stunning announcement that the state would dismiss without prejudice all criminal charges related to the Flint water crisis and start the investigation over. The prosecutors said they needed time to explore new evidence, new persons of interest and an expanded net of potential criminal culpability related to all victims of a 2014-15 Legionnaire’s Disease outbreak in the Flint region believed to be linked to the water scandal.

Nessel emphasized that all of the charges dismissed Thursday could be refiled, but noted prosecutors are working against statutes of limitations within which they must file charges. The attorney general reiterated earlier criticisms of Schuette’s decision to appoint Todd Flood, a private attorney, to lead the prosecution team citing costs and lengthy prosecution timelines.

Genesee County judges sent former Michigan Department of Health and Human Services Director Nick Lyon and former Chief Medical Executive Eden Wells to trial on involuntary manslaughter and other charges. Lyon's preliminary examination lasted 11 months while Wells' took 14 months. 

After the November election, Flood pleaded down several felonies to 90-day misdemeanors, Nessel said, which also raised concerns.

Roughly $9.5 million had been spent on the Flint criminal prosecution up until March 31, much of that going directly to Flood’s law firm, according to the Attorney General’s office. The state also paid for the legal defense of its charged employees. Nessel said she expects future prosecutorial efforts to cost much less and proceed more quickly.

“That’s what happens when you’re not paying people hourly,” Nessel said. “They don’t stretch things out unnecessarily.”

Hammoud and Worthy on Thursday said search warrants they issued had netted millions of documents and dozens of devices that were in need of review before charges could be refiled or new defendants added.

Former Detroit FBI agent Andy Arena has defended the integrity of the Schuette investigative team.

"If someone wanted to question what we did, I certainly would debate them publicly," he told The Detroit News on Thursday.

Arena bristled at the idea he would let politics affect the Flint investigation, noting he has been involved in complicated probes before.

“I told Bill Schuette from Day 1 that this not about politics, this is about justice for the people of Flint,” he said. “...Whether he was the next governor of the state of Michigan or not was no concern of mine.

"...And I will say this: Bill Schuette never told us to do or not to do anything in that case. Never. And it was a pretty good team of investigators and prosecutors. There was no way in hell I’d let politics play a role in what we were doing.”

For his part, Schuette said in a Thursday email that his experienced prosecution team was ready to go to trial against Lyon and Wells, implying that Hammoud's team was ill prepared to do so after letting go of the special prosecutor, another lawyer and Arena. 

The special prosecutor "was fully prepared to try both cases," Schuette said. "We had an experienced, aggressive and hard-driving team."

Not all evidence was pursued and Flood wrongly allowed private law firms representing former Republican Gov. Rick Snyder and other defendants to have "a role in deciding what information would be turned over to law enforcement," Hammoud and Worthy said.

The attorney general’s office issued search warrants in May to seize from state storage areas old state-owned cell phones, iPads and laptops of more than five dozen state officials, including items that had been used by Snyder. Some of the items had already been obtained by Flood but appeared to be swept up again in the blanket warrants.

“Former Gov. Snyder’s attorneys have already commented on this issue," spokesman Bill Nowling said Friday. 

Earlier this month, Snyder pushed back on the characterization of the seizure, maintaining he had already turned over his cell phone and other devices to the attorney general as he left office.

Several times since January, Snyder's attorneys "have reached out to Solicitor General Hammoud offering to explain the history of the document production and the agreements reached with former Special Assistant Attorney General Todd Flood.  We have not received any response to those offers," attorney Brian Lennon said in a June 4 statement.

But Nessel said the special prosecution team botched how it pursued documents from Snyder.

“You don’t have people who are suspects in a crime decide what they want to turn over," the attorney general told WJR's Paul W. Smith on Friday. "And really that’s how it had been done before.”

Court documents show Flood and Snyder’s attorneys had argued about evidence as recently as September 2018, when the Office of Special Counsel alleged Snyder had failed to adequately respond to an investigative subpoena issued in June 2016.

Attorney Charles Ash Jr., part of Snyder’s defense team at the Warner Norcross and Judd law firm, called the claims false and argued that Flood’s updated request could “only be characterized as grossly overbroad, ambiguous in many places and far beyond the bounds of the investigative subpoena statute.”

Snyder objected to the subpoena because it would have resulted “in the complete waste of untold amounts of tax dollars and state resources,” Ash wrote.  But rather that just object, the governor had instructed his legal team to “work cooperatively” with investigators and the attorney general’s office to “pare down” the subpoena and devise an efficient process to get you the information you need,” he said.

“That process spanned several months, and we managed to work through everything. You accepted the documents and other information we provided without objection. Now, two years later, you are attempting to disavow our prior cooperation and agreements. This is deeply troubling.”

In the September 2018 letter to the Office of Special Counsel, Ash said the governor’s office turned 38,667 documents totaling 224,77 pages to investigators between October 2016 and September 2017 as part of an agreement.  

Flood later challenged that document production and requested additional documents, including emails from Snyder’s children, personal email accounts for employees in Snyder’s office, additional cell phones, electronic devices and  a deeper search of the governor’s iPad, which he used to annotate and send .pdf files using a application called GoodReader.

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