Snyder may need contempt citation to appeal order to testify in Flint civil trial

Leonard N. Fleming
The Detroit News

A federal judge on Friday set up the possibility that former Gov. Rick Snyder would need to refuse to testify by pleading the right against self-incrimination in a Flint civil lawsuit and get cited for contempt of court so his lawyers could appeal his bid not to testify in the trial.

U.S. District Judge Judith Levy said she would allow attorneys for Snyder and others criminally charged in the Flint water crisis case to make their case in writing for appealing her order to force them to testify in the civil trial underway involving Flint's engineering consultants.

Levy had rejected their motions to quash subpoenas for their testimony, arguing that they had voluntarily testified in depositions in the civil lawsuit without invoking the 5th Amendment right against self-incrimination.

Lawyers for former Gov. Rick Snyder are petitioning U.S. District Judge Judith Levy to let them appeal her order that would force Snyder to testify in the Flint civil lawsuit trial and not exercise the Fifth Amendment right against self-incrimination.

The decision sets up a showdown. If Levy denies their motion to appeal her order compelling testimony, then Snyder, former top aide Rich Baird and others can choose to testify or refuse and end up in contempt of court. The contempt citation would open an avenue so they could petition the U.S. Court of Appeals for the Sixth Circuit to hear their appeal.

Levy and the attorneys all said they would like to avoid this option that one lawyer called the "semi-barbaric" route. But the attorneys for the criminally charged defendants said they cannot have their clients testify given the criminal charges they face and face possible self-incrimination that would lead to more charges.

Levy said she wants to read their appeal before deciding to allow them to send it to the appeals court.

"We understand the court's ruling on Monday, we respect's the court's order. Nonetheless ... our position remains valid. The only path forward here is to play the deposition tape," said Charles Quigg, an attorney who represents Snyder.

The former governor was deposed for two days in the summer of 2020. Snyder, Baird and others would prefer that their deposition tapes be played in court and they be spared any further questions in a trial. 

"Even as to the exact same questions that were asked at the deposition, Gov. Snyder will invoke the Fifth Amendment if called as a witness," Quigg added. "I would go beyond saying I'm suggesting that. I'm telling you that."

Levy said the stance was "problematic" since she had ruled that Snyder had waived the Fifth Amendment right to self-incrimination during the deposition, "and he may not exercise the Fifth.

"His alternative is to go to the Court of Appeals because I'm not going to allow him to come in here and take the Fifth because I've made a decision that it doesn't apply," she said. "He has waived his right to do that. He gave it up."

Ordinarily, lawyers don't get to appeal a decision in a case until the case is over. But when an issue such as this dispute over testimony arises, a trial court can certify what's called an "interlocutory appeal" or an appeal during the case. But the judge must sign off on the appeal request under court rules. 

Levy said the written appeal must be filed by Tuesday and then a response by the attorneys in the civil case by Wednesday. If she grants the motion, the Sixth Circuit judges would still need to accept it for arguments to be heard, Levy said in court.

The judge said the option is "not a good option" and that she's never held anyone in contempt of court in the eight years she's been on the federal bench.

"I don't want to start now," Levy said.

Levy on Monday denied motions to quash subpoenas requiring the Snyder, Baird,  former Flint emergency managers Darnell Earley and Gerald Ambrose, and former city public works director Howard Croft to testify. They all want to avoid testifying in the Flint water civil trial because they could be subjected to questions that overlap with their criminal cases related to Flint's lead-contaminated drinking water and Legionnaires' disease cases. 

Juan Mateo, an attorney for Earley, echoed Snyder's attorney and said he would direct his client not to testify. He said he is worried that when Earley has said or written something, "the two teams of prosecutors in this case have taken those writings and have taken those statements and have twisted them."

"They want to basically have him come before this jury and ask questions that are absolutely central to the three charges he is facing in this indictment," Mateo said. "I just don't see any practical way where we can do that on a question-by-question basis and not violate your order and not put ourselves in a position where you might do what you've never done before. And I certainly have never been held in contempt, and I don't want to start now."

The trial will determine if engineering contractors Veolia North America and Lockwood, Andrews & Newman, known as LAN, bear responsibility for lead-contaminated water in Flint. The engineering firms have made it clear in the opening arguments of the trial they plan to pin the blame on state and Flint government officials motivated by "arrogance," "callousness" and "bureaucratic contempt" toward Flint. 

Michigan Attorney General Dana Nessel's office has charged Snyder with two misdemeanor courts of willful neglect of duty.

One count says Snyder failed to declare a state of emergency or disaster, although he was notified of a threat of an emergency or disaster in Flint. Snyder did eventually declare a state of emergency in January 2016 — three months after he had Flint shift its water source back to Detroit's regional water system.

U.S. District Judge Judith Levy will decide whether to allow five Flint criminal defendants, including former Gov. Rick Snyder, to appeal her order forcing them to testify in the Flint civil lawsuit. She is shown here on  July 13, 2021.

The other count says Snyder failed to inquire into "the performance, condition and administration" of officers whom he appointed and was required to supervise under the state constitution. Legal experts say this likely refers to the state-appointed emergency managers who were in place in Flint and working under Snyder.

Baird was charged with perjury during an investigative subpoena investigation, misconduct in office, obstruction of justice and extortion in relation to the Flint water case. Earley was charged with three counts of misconduct in office, while Ambrose was charged with four counts of misconduct in office.

Croft faces the same charges as Snyder — two counts of willful neglect.