FLINT, MI — In a column two weeks ago, I wrote about the sad end of the attempt to bring to justice those responsible for the Flint water crisis, in which negligence exposed thousands of children to dangerous levels of lead poisoning.
Two state attorneys general pursued criminal charges against officials of Gov. Rick Snyder’s administration. The state spent more than $60 million, including paying defense attorney fees.
But not a single case ever came to trial, and they were all dismissed last month, which left the people of Flint, and many taxpayers, understandably angry and bitter. My column quoted a federal judge as faulting Michigan Attorney General Dana Nessel.
That judge, who is now deceased, told me nearly two years ago that the indictments were faulty, that the one-man grand jury system that issued them was improper, and predicted they would all be thrown out, as indeed they eventually were.
But Dana Nessel thought my column unfairly put blame on her for the failure, and I thought it was only fair to allow her to explain. “I didn’t handle the criminal cases. I (had to choose between) either the criminal or the civil cases, due to the conflict that would arise from both prosecuting and defending state officials,” she told me.
“I chose the civil cases, and successfully negotiated the biggest settlement in state history.”
That was indeed true; Michigan agreed to pay a record $600 million to compensate victims, who also got another $26 million from the city of Flint, an engineering firm and a hospital chain, though some were disgruntled that judges approved setting aside more than $47 million of that for various lawyers.
The attorney general, a Democrat, also rightly noted that she got the legislature to approve that settlement last year, when it still had a Republican majority who were none too eager to spend the money on Flint, or to call further attention to a scandal which was clearly caused by appointees of a Republican governor.
But she said she had nothing to do with the failure of the criminal cases, or indeed of those cases themselves, beyond appointing two special prosecutors, Chief Deputy Attorney General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy.
Once she had, Nessel said she recused herself from those cases entirely. “I didn’t even know they were using a one-man grand jury. I wasn’t permitted to know, since it’s a secret proceeding and I was barred from any decisions or information about the case.”
“You can certainly blame me for my choice of the prosecutors I selected, but not for their prosecutorial decisions,” she told me.
“That’s how a special prosecutor works. They don’t work for you. They work independently from you.” This whole saga all began in 2014, when emergency managers appointed to run the impoverished city of Flint switched the source of their drinking water to save money, a move that caused pipes to corrode and thousands of people to be exposed to lead poisoning.
At least a dozen more died from a possibly related outbreak of Legionnaires’ disease. Gov. Rick Snyder and his administration were slow to recognize or admit what had happened.
The Michigan Attorney General in office at the time, Bill Schuette, filed criminal charges against numerous state officials and appointed a special prosecutor, Todd Flood. But he was fired and all those charges were dropped after Dana Nessel took office in 2019.
Her special prosecutors then filed new charges.
Though most accounts, including mine, indicated that was her decision, the attorney general said it wasn’t. “I didn’t dismiss those cases. I just appointed my own people as the lead prosecutors. They fired Todd, not me,” though she added that she had her own reasons not to trust him, and that he was overpaid.
“But once I appointed the special prosecutors, I was not permitted to know anything or make any decisions on the case due to the conflict of interest,” between the civil and criminal cases.
What is clear is that the decisions her prosecutors made ended in failure. They relied on Genesee County Circuit Judge David Newblatt to issue indictments as a one-man grand jury, after which they filed charges against nine officials, including the former governor. But the Michigan Supreme Court, which often divides along partisan lines, unanimously ruled that was illegal.
With the statute of limitations running out, the special prosecutors then dropped all the cases. They said “our hearts break for the people of Flint.”
Asked about all this, Attorney General Nessel said “If I could have been involved, I might have made different decisions; who knows? But I was legally barred from doing so.”
Looking back, the attorney general was right to fault my earlier column for not mentioning that she had no direct part in the failed prosecutions. But my column was not meant to attack her, but to note that this was an enormous and expensive failure on the part of the state and attorney general’s office.
And in any organization, as Harry Truman once said, “the buck stops here,” on the desk of the person at the top.
There are no winners here, and the biggest losers are those who live in the once-mighty industrial city of Flint, and will have to live with the consequences of bad government decisions for a lifetime.
-30-
(A version of this column appeared in the Toledo Blade)
