Statement: AG’s Filing in People v. Agen Continues Pattern of Attempting to Deny Defendants’ Rights

This week, the Attorney General’s office filed a pleading that continues its pattern of persecution intent on denying the constitutional and due process rights of defendants in the Flint Water cases. A statement from Brian Lennon, Gov. Snyder’s legal counsel from Warner Norcross + Judd, is below:

This week’s filing in People v. Agen and the Attorney General’s corresponding press release is absurd and continues a pattern of persecution intent on denying the constitutional and due process rights of defendants in the Flint Water cases. 

The pleading and press release further highlight the lengths Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy will go to keep alive their fatally flawed and politically-motivated prosecution of Governor Rick Snyder and others from his administration. 

The Attorney General’s office has finally acknowledged that the Michigan Supreme Court’s unanimous June 28 decision ordered the dismissal of the indictments against former DHHS Director Nick Lyon and the others. But now, the prosecution asserts that “arrest warrants” issued after and specifically referencing the illegal and unlawfully obtained indictments are the documents upon which prosecutions can proceed. 

This is false, and either shows a lack of understanding of the judicial system or a blatant attempt to undermine it. The unanimous Michigan Supreme Court said absolutely nothing about arrest warrants initiating a criminal proceeding. The prosecution is now asking courts to engage in hocus pocus and magically convert arrest warrants into charging documents, ignoring the clear and unequivocal directive of the unanimous Michigan Supreme Court decision.

First-year law students know that an arrest warrant is not a charging document and that arrest warrants are satisfied when a criminal defendant appears in court pursuant to that warrant. That happened for Governor Snyder, Nick Lyon, and all the other defendants on January 14, 2021, when each was arraigned on unlawful and illegally-obtained indictments. No one has ever been arraigned on an arrest warrant, and the prosecution fails to provide a single instance when anyone, in Michigan or elsewhere, has ever been arraigned and prosecuted on an arrest warrant alone.    

Now, on the eve of the issuance of Judge Elizabeth Kelly’s order on the felony defendants’ motion to dismiss the indictments, SG Hammoud is asking the court to engage in a series of tortured, illegal, and illogical jurisprudential gymnastics to justify a decision clearly contrary to the unanimous Michigan Supreme Court’s decision. 

No other prosecuting entity in the state of Michigan, including the Genesee County Prosecutor and Prosecutor Worthy’s assistant prosecutors in Wayne County, has requested such relief from courts following the Supreme Court’s June 28 decision that a one-judge grand juror cannot issue indictments. Only the AG’s Flint Water Criminal Team has made such an audacious request. 

We should not be surprised that SG Hammoud and Prosecutor Worthy would continue to ignore the Michigan Supreme Court. They have ignored and completely failed to comply with Judge Kelly’s November 2021 order to establish a “taint team” to review, identify, and segregate attorney-client privileged communications, attorney work product, Governor Snyder’s executive privileged documents, and federal court-protected mediation confidential documents from the city of Detroit bankruptcy, commonly known as “the Grand Bargain.” 

It has been well documented that despite numerous warnings about the privileged nature of the documents they seized from their civil-law AG colleagues, the Hammoud-Worthy-led prosecution team completely disregarded each defendant’s constitutional and due process rights by reviewing and producing each defendant’s privileged attorney-client communications and attorney work product to every other defendant. 

The prosecution’s failure to establish a taint team or seek the appointment of a special master is unprecedented and indefensible. And despite being ordered by Judge Kelly months ago to get on with the establishment of a taint team, they instead continued to appeal that order until the Michigan Supreme Court recently dismissed the prosecution’s last application for leave to appeal the November 2021 taint team order. 

While the prosecution team has claimed that its failure to deploy a taint team will cost the Michigan taxpayers tens of millions of dollars and will take several years to complete, AG Nessel has not requested any funds from the legislature in her department’s budget to accomplish this court-required task to move the prosecutions along.  They still have 17 million documents to review and produce. And because of Judge Kelly’s November 2021 taint team order – and a similar ruling from the U.S. Bankruptcy Court regarding the Grand Bargain documents they admittedly produced in violation of that court’s orders – not a single document has been provided to the defense since 2021. 

Neither AG Nessel nor SG Hammoud appears to have any intention of complying with Michigan Supreme Court decisions in these cases, opting instead to keep these fatally flawed cases on life support until they have been completely used up as electioneering fodder.

Statement: Michigan Supreme Court Rejects AG’s Taint Team Appeal

The Michigan Supreme Court today rejected an application from the Flint Water Criminal Team seeking to reverse Judge Kelly’s taint team orders from November 2021. A statement from Gov. Snyder’s legal counsel from Warner Norcross + Judd is below:

Today, the Michigan Supreme Court issued another rebuke against the Flint Water Criminal Team and Michigan Attorney General’s office when it upheld the sanctity of attorney-client privilege for all citizens.

The Supreme Court rejected the Flint Water Criminal Team’s application seeking the reversal of Judge Kelly’s taint team orders from November 2021.

“We suspect this is the latest Supreme Court mandate the prosecution will ignore, but we can still hope that they finally realize the judicial system in America is strong because it protects people from persecution based on political ideologies,” said Brian Lennon, attorney for Gov. Rick Snyder.

When Solicitor General Hammoud-led prosecution team recklessly seized and reviewed tens of thousands of attorney-client privileged documents and attorney work product from the civil law side of the Attorney General’s office, they failed to establish even the most basic taint team protocols to segregate privileged materials from that which the prosecution can properly review. That fatal flaw in the Flint criminal cases ignored the most sacrosanct privilege in American jurisprudence: every citizen’s right to attorney-client privilege.

“Every citizen understands that prosecutors cannot review the communications between lawyers and their clients, nor can they review an attorney’s notes and work product,” Lennon said. “For some reason, this well-founded principle was ignored by the Flint Water Criminal Team, despite clear warnings from their civil-law AG colleagues in 2019, as well as by counsel for both Director Nick Lyon and the Snyder legal team. These criminal cases need to be dismissed because there is no way to recover from such an unethical and unconscionable violation of constitutional rights.”

Despite clear warnings from numerous legal professionals in the public and private sector, SG Hammoud plowed ahead and began producing Governor Snyder’s privileged documents, as well as court-protected city of Detroit mediation documents, to all nine criminal defendants. 

Since Judge Kelly’s November order instructing the Flint Water Criminal Team to follow proper procedures and establish a taint team, no protocol has been established. Additionally, not a single non-privileged document has been produced for any of the defendants in nearly a year.  Moreover, despite representations to several courts that establishing a taint team now would cost the taxpayers more than $30 million dollars, there is no line item in the AG’s 2023 fiscal year budget to account for this anticipated expenditure. 

SG Hammoud’s position has been to ignore Judge Kelly’s ruling, as well as the Michigan Supreme Court’s unanimous decision in the Peeler, Baird and Lyon cases, ordering the dismissal of unlawfully obtained indictments from the one-judge grand jury.

The Supreme Court today struck another blow today against the Attorney General’s handling of the Flint water cases when it rejected the prosecution’s application for leave seeking reconsideration of Emergency Manager Gerald Ambrose’s demand for a preliminary hearing.  Rather than following the directive of the Supreme Court to dismiss the unlawfully issued indictments in the Flint water cases, the prosecution appealed to the Supreme Court and has asked the county courts to convert improper indictments into a different type of charging document.

“The courts take their rulings very seriously. It’s time for the Attorney General’s Office and SG Hammoud to do the same and dismiss all cases brought by the Flint Water Criminal Team,” Lennon said. “This isn’t a game of chance where you can keep rolling the dice hoping for a better outcome.”

Snyder Legal Team Files Motion Regarding AG’s “Inaccurate and Misleading” Representations to U.S. Bankruptcy Court

The filing details “inaccurate and misleading” representations made by the Michigan Attorney General’s office to the U.S. Bankruptcy Court related to the AG’s so-called “conflict wall” in the Flint Water cases.

Documents recently received through the Freedom of Information Act call into question representations made by the Attorney General’s Office to the U.S. Bankruptcy Court about the AG’s “conflict wall,” which was constructed to separate the Flint Water criminal prosecution team from Attorney General Nessel, her Chief Deputy, and the Assistant Attorneys General who were representing Governor Snyder and the State of Michigan in the Flint Civil cases.  Contrary to representations made by AG Nessel’s Chief Legal Counsel to the U.S. Bankruptcy Court, both in pleadings and during a June 16, 2021, hearing, the so-called “conflict wall” was more like a sieve, with hundreds of meetings between Attorney General Nessel, who was representing Governor Snyder and others in the civil litigation, and Solicitor General Hammoud who was prosecuting Governor Snyder.

Emails recently obtained through FOIA establish that Assistant AGs on both sides of the “conflict wall” communicated substantively about the privileged documents SG Hammoud’s team seized from the custody of her colleagues on the opposite side of the conflict wall. After the June 16, 2021, hearing in U.S. Bankruptcy Court, AG Nessel herself approved of a revised protective order intended to cover the same Federal Court-protected mediation confidential documents at issue in Governor Snyder’s Motion for Sanctions and Limited Discovery. And despite warning SG Hammoud that she needed to correct the record with the U.S. Bankruptcy Court on the misrepresentations of AG Nessel’s Chief Legal Counsel, no one from the Attorney General’s Office has corrected the record regarding the “conflict wall.” Today’s pleading, if accepted by the U.S. Bankruptcy Court, establishes by any burden of proof, that the representations made by the Attorney General’s Office were inaccurate and misleading.

Statement: AG Attempts to Circumvent Michigan Supreme Court Ruling, Continue Political Witch Hunt

On Friday, the Michigan Attorney General’s office filed two motions in an attempt to get around a unanimous Michigan Supreme Court ruling and continue their political witch hunt in the Flint water criminal cases. A statement from Brian Lennon, Gov. Snyder’s legal counsel from Warner Norcross + Judd, is below:

Throughout this prosecution, SG Hammoud has shown a remarkable dexterity for missing the point. First it was her refusal to establish a taint team and her total disregard for the sacrosanct attorney-client privilege of Governor Snyder and all the other defendants. Now it’s a flawed reading of a unanimous decision by Michigan’s highest court. Indeed, a unanimous Supreme Court found that all the indictments she obtained are invalid, and specifically as to Director Lyon’s case, the Justices ordered that it be dismissed. How can the Genesee County courts simply convert invalid and illegally obtained indictments into valid complaints? What part of the word “dismissed” does she and Prosecutor Worthy refuse to understand? We look forward to responding to these ridiculous pleadings.  

And since the prosecution appears to acknowledge the continued jurisdiction of the Genesee County Courts, we will be asking Circuit Judge F. Kay Behm to rule on our Motion to Dismiss for Lack of Jurisdiction and Venue, which has been pending for over a year, and District Judge William Crawford to require affidavits from the prosecution regarding its unsupported claim that the prosecution team never looked at any privileged materials, which we know is false.

This latest frivolous motion by SG Hammoud and Prosecutor Worthy is simply a desperate attempt to keep the prosecution alive past the November election. If this latest filing was sincere, one would have expected to see a large expenditure for a taint team in Attorney General Nessel’s recently-passed budget. The prosecution has told every court – including the Michigan Supreme Court, the Michigan Court of Appeals, Judge Kelly, Judge Crawford, and a U.S. Bankruptcy Court Judge – that a taint team will cost the Michigan taxpayers $30 Million dollars to accomplish. The expenditure for a taint team is nowhere to be found in next years’ budget.

We call on AG Nessel to follow the Supreme Court’s decision. Dismiss the indictments with prejudice, quit wasting taxpayer money, and redirect those resources to the people of Flint.

Statement: Court of Appeals Denies AG’s Motion on Taint Team

A statement from Brian Lennon, Gov. Rick Snyder’s legal counsel from Warner Norcross + Judd.

We applaud the decision of the Michigan Court of Appeals denying the prosecution cover for its breathtaking violation of due process rights of all the Flint Water defendants.

Either stunning incompetence or the blind political motivation to get a conviction by hook or by crook, led the prosecution to completely ignore screening for privileged materials even though members of their own team were raising red flags. Then, when ordered to stop reviewing and disclosing privileged materials, the prosecution had the gall to complain that it will take too much time and cost too much money.

When the prosecution seized thousands of privileged documents from the files of Governor Snyder’s legal counsel and then failed to implement or offer any solution for preventing an invasion of Governor Snyder’s or the other defendants’ legal privileges, it is far from an abuse of discretion for the circuit court to impose a reasonable solution.  As the prosecution itself admitted, once privileged documents are reviewed by the prosecution, “the bell cannot be unrung.”  (People’s Mot for Recons 13.)

The use of an independent taint team ordered by Judge Kelly in November is reasonable, especially when the relevant but privileged documents were already reviewed, identified on privilege logs provided to the Todd Flood-led Office of Special Counsel, and properly protected by Assistant Attorneys General on the opposite side of the Attorney General’s so-called “conflict wall.”  The taxpayers have already paid for this process once.  When SC Hammoud and her team chose to execute search warrants on the other side of the conflict wall and seized Governor Snyder’s attorney-client privileged communications with his lawyers and his lawyers’ work product, among other records they should never have reviewed, they were obligated to employ some type of screening method.

The prosecution complains that the relief ordered by Judge Kelly is unprecedented, but the only thing unprecedented is the prosecution’s obstinate refusal to take even the most basic step to protect the legal and constitutional rights of defendants. This politically motivated philosophy of winning a  case by any means and at any cost should send chills down the spines of every resident of Michigan, and particularly government employees.

Taint teams are so well-recognized as an essential method for protecting a defendants’ privilege that the U.S. Department of Justice treats it as standard practice when privileges are at risk.  Legions of courts have recognized this as a valid method of protecting privilege, and some have even questioned whether it is protective enough.

The prosecution’s other argument—that the review process will be too burdensome—has no basis in reality.  To start, the actual orders entered by the Circuit Court do not dictate how many of the documents in the prosecution’s possession must be reviewed or how—it says nothing about what the review process would be.  Because the prosecution has refused to comply with Judge Kelly’s November order, the decisions of what documents would need review and how exactly to screen them have yet to be made.  This is stunning, particularly when the prosecution has hired an experienced outside e-discovery vendor to assist with this process.

Moreover, the prosecution’s speculations about what the review would entail presumes a process that ignores basic e-discovery methods and technology and conjures an astronomical project cost that defies simple math.  This tactic of over-inflating their burden in an effort to avoid necessary discovery tasks has been roundly condemned by other courts.

SG Hammoud and her team need to hire a taint team to get on with this privilege review forthwith.  They have delayed even identifying a taint team or creating a review protocol for far too long.  Alternatively, and to save the taxpayers tens of millions of dollars on this fatally flawed prosecution, she should dismiss the charges against Governor Snyder and all the defendants whose due process rights and constitutional protections have been violated.