Lucido's challenge of Whitmer's nursing home policies under fire

Craig Mauger
The Detroit News

National legal scholars are asking the Michigan panel that oversees attorneys to investigate Macomb County Prosecutor Peter Lucido's handling of an inquiry into Gov. Gretchen Whitmer's nursing home policies.

In a complaint filed Monday, three professors request the Michigan Attorney Grievance Commission review Lucido "for using his newly elected office to pursue a politically motivated investigation" against the Democratic governor "to advance his own partisan political interests."

State Sen Peter Lucido, R-36th District,  is sworn in.

"We have grave concerns about Mr. Lucido’s behavior with respect to the standards governing the legal profession, the prosecutor’s office and the rule of law," the professors wrote. "It appears that Mr. Lucido has a personal, political axe to grind regarding Governor Whitmer."

The Attorney Grievance Commission is the investigative arm of the Michigan Supreme Court for handling allegations of attorney misconduct. The commission enforces ethical standards for the state's lawyers, according to its website.

Lucido countered Monday that everyone is innocent until proven guilty and that investigators could probe all elements of nursing homes' handling of COVID-19 including the facilities themselves, employees and state officials.

Some families had relatives die in nursing homes without being able to communicate with the individuals to find out what was happening, Lucido said. The prosecutor said he is seeking closure, finality and healing.

"What I did as a legislator, I did because I didn’t like the policy," Lucido said. "Again, everybody is presumed innocent until proven guilty.”

Lawrence Dubin, an emeritus professor of law at the University of Detroit Mercy; Claire Finkelstein, director of the Center for Ethics and the Rule of Law at the University of Pennsylvania Carey Law School; and Richard Painter, a professor at the University of Minnesota's law school, signed the complaint against Lucido. Painter previously was associate counsel to former President George W. Bush in the White House counsel’s office, serving as the chief ethics lawyer for the Republican president and White House employees, according to his university biography.

Lucido, a Republican former state senator, has been among the most vocal critics of Whitmer's decisions concerning nursing homes during the COVID-19 pandemic. The decisions have become a focal point of GOP opposition to the governor's leadership over the last year.

Whitmer's policies have centered on caring for elderly individuals with the virus in isolated areas of existing nursing homes, including regional hubs designated by the administration. But lawmakers, like Lucido, have contended that those individuals should have been sent to entirely separate facilities to prevent the spread of COVID-19 among a vulnerable population.

About 35% of Michigan's COVID-19 deaths have been residents of long-term care facilities: 5,557 of 16,026, according to state data.

Lucido won the Macomb County prosecutor job in November and was sworn into office in January. On March 11, he called for the county medical examiner's office to create a committee for reviewing nursing home deaths related to COVID-19 and announced an online form for families to file with law enforcement to investigate fatalities. 

At the time, Lucido said he felt he had "an obligation to review any complaints for possible prosecution." He denied there were political motivations for his actions.

"I'm not going after anyone," he said earlier this month. "I'm simply trying to find out whatever we can about these deaths."

However, the new complaint from the three legal scholars quotes June 19 statements Lucido made on Detroit journalist Charlie LeDuff's podcast. The then-state senator said the governor had "cold-blooded killed the most injured parties that are out there."

Asked if he would prosecute Whitmer over the nursing home deaths if he were elected prosecutor, Lucido answered, “If we have the information that supports a conviction ... you’re damn right she’s going to get charged because she deserves to own up to those deaths in those nursing homes," according to the complaint.

The summary of the interview posted on the podcast's website says, "Sen. Pete Lucido thinks Gov. Whitmer committed a crime."

Lucido's words and actions as prosecutor "suggest that he seeks to vindicate his prior claims, which would be counter to the black letter and spirit of rules of professional conduct that forbid attorneys from client representations where they have a conflict of interest," the new complaint says.

The complaint questions whether Lucido has violated rules against conflicts of interest and against making “extrajudicial statements” that will have the substantial likelihood of materially prejudicing a proceeding.

The prosecutor questioned why the complaint against him by three professors initially surfaced in the media.

"Why would a learned professor of ethics want to share a complaint with the entire media corps?" Lucido said. "And what was his purpose and reasoning in doing it?”

“Doesn’t that seem suspicious and odd?” he asked.

The ethics scholars request the commission investigate Lucido's conduct and determine "an appropriate remedy," including requiring him to recuse himself from participation in the nursing home investigation.

Dubin, the emeritus professor who signed onto the complaint, said it's his responsibility as a lawyer to report wrongdoing if he believes a  colleague has committed misconduct.

On March 15, Attorney General Dana Nessel, a Democrat, said an investigation into Whitmer's nursing home policies wasn't warranted. Nessel's decision drew criticism from Republicans in the GOP-controlled Legislature. Last week, the Michigan Senate approved a bill that would provide state grants to county prosecutors who investigate Whitmer's nursing home policies during the COVID-19 pandemic.