Editorial: Michigan’s Banana Republic Prosecution

Originally featured in The Wall Street Journal on June 30, 2022.

The prosecution of political opponents is a feature of banana republics that increasingly infects the U.S. A case in point is the prosecution of former GOP Gov. Rick Snyder in the Flint water case, which a unanimous state Supreme Court declared invalid this week.

Democrats claimed the former Governor and his staff ignored Flint’s problem with lead-tainted water, never mind that the Obama Environmental Protection Agency knew about it and did nothing. Democratic Attorney General Dana Nessel ordered Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy to investigate the Flint fiasco.

In January 2021, Ms. Hammoud brought two misdemeanor charges against Mr. Snyder for willful neglect of duty, each punishable by up to a year in prison. Eight other public officials were indicted. All pleaded not guilty.

We’ve previously reported that Ms. Hammoud seized documents from the state AG’s office related to a civil lawsuit in the Flint case that were protected by attorney-client privilege. When caught, she resisted hiring a “taint team” to exclude privileged documents. She also failed to follow legal conventions that protect defendants’ due process, as the state Supreme Court explains.

Prosecutors relied on a one-man “grand jury” that “considered the evidence not in a public courtroom but in secret, a Star Chamber comeback,” Chief Justice Bridget Mary McCormack writes. “The one-man grand jury then issued charges. To this day, the defendants do not know what evidence the prosecution presented to convince the grand jury (i.e., juror) to charge them.”

State law allows for one-person grand juries in select cases involving public corruption but requires procedural safeguards. Ms. Hammoud’s one-man grand jury—a Genesee County judge—didn’t follow these rules. Mr. Snyder’s team is filing a motion to dismiss the charges based on the ruling.

Yet Ms. Hammoud is unapologetic. “The Citizens of Flint should know that these cases are not over,” she said in response to the legal rebuke. Her Moby Dick pursuit of Mr. Snyder for what was a government failure, not a criminal act, has set an awful precedent that may come back to haunt Democrats when Republicans next take power.