Originally featured in The Wall Street Journal on December 27, 2021.
Some politicians seem to want to lock up their opponents more than they do criminals. Consider the tainted prosecution of former Michigan GOP Gov. Rick Snyder and his associates over the city of Flint’s lead-water contamination.
A state judge last month ordered state Solicitor General Fadwa Hammoud to establish an independent “taint team” to review some 21 million documents her office seized to investigate Mr. Snyder and eight other public officials involving Flint. Many documents are protected by attorney-client privilege, so prosecutors and the grand jury should never have laid eyes on them.
Now Ms. Hammoud and assistant attorney general Christopher Kessel are protesting the judge’s order. They say hiring outside attorneys to exclude documents protected by attorney-client privilege would cost the state $48 million and take three years.
To rewind the tape, a change in Flint’s water source and chemical treatment in 2014 resulted in high lead levels in drinking water. Virginia Tech researchers exposed the story. But questions brewed over when federal, state and local officials were first aware of it and why they didn’t seek to correct the problem.
Flint became a backdrop in Democrats’ campaign to take the White House in 2016 and the governor’s mansion two years later. Barack Obama attributed Flint’s lead-contaminated water to the “mindset” that “believes that less government is the highest good no matter what.” Democrats accused Republicans in Lansing of racism.
In 2016 then AG Bill Schuette (the GOP gubernatorial candidate in 2018) appointed a special prosecutor to investigate if criminal charges were warranted. The investigation resulted in 15 indictments. But Democrats groused that Mr. Snyder wasn’t indicted and that the charges against the others were too lenient. So shortly after winning election in 2018, Attorney General Dana Nessel put Ms. Hammoud and Wayne County Prosecutor Kym Worthy on the case.
They fired the prosecution team and rebooted the investigations. “We’re supposed to have everything, look at it, and make a decision,” Ms. Hammoud said. Her office sought a search warrant to seize tens of millions of documents stored in the state AG’s office, including many pertaining to the defense of Mr. Snyder and state officials in civil litigation by private plaintiffs.
In January Ms. Hammoud brought charges against nine individuals, including nine counts of involuntary manslaughter against Mr. Snyder’s top health official Nick Lyon. Mr. Snyder was indicted on two misdemeanors for willful neglect of duty, each punishable by up to a year in prison. They have all pleaded not guilty.
The indictment alleges that Mr. Snyder violated his duties as Governor by failing “to inquire into the performance, condition and administration” of the officers “that he appointed and was required to supervise” and by failing to declare a state of emergency when he had “notice of a threat” in Flint.
If Mr. Snyder is guilty of these crimes, so is Democratic Gov. Gretchen Whitmer, who failed to take action for more than two years after alerts of high lead water levels in Benton Harbor. Ms. Whitmer could also be culpable for failing to protect nursing home residents during the pandemic, among other derelictions.
Government officials often make poor decisions or fail to take appropriate action when they should. Neither is a crime, and the remedy is the ballot box. Prosecutorial missteps in the case are also troubling.
Some documents seized by Ms. Hammoud’s team included communications regarding Mr. Snyder’s legal strategy in the civil litigation, and were explicitly labeled as subject to attorney-client privilege. Mr. Snyder’s defense team notes in a court filing that an assistant attorney general had alerted Ms. Hammoud to this.
Ms. Hammoud says none of these documents were included in materials submitted to the grand jury. At the same time she claims that hiring an outside “taint team” to exclude privileged documents from the investigation would be too cumbersome and expensive. Why does she fear a “taint team”?
The state is obligated to pay Mr. Snyder’s legal costs, which his defense team tells us will likely total $6 million to $8 million before the case goes to trial. Add $45 million for an outside taint team. All of this could pay for replacing Benton Harbor’s aging water pipes—or hiring hundreds of more police to curb the surging violence on Flint’s streets. The Democratic Flint prosecutions look on all the evidence like a political prosecution that deserves to be bounced out of court.