by Beth LeBlanc,
The Detroit News
March 19, 2019
Behind the scenes, Snyder’s attorneys continue to defend the Ann Arbor Republican from civil litigation and allegations by special prosecutors, but declined to discuss the matter publicly.
On Feb. 7, Snyder’s attorney chided former Special Assistant Attorney General Noah Hall for implying in a radio interview that the former governor be held “accountable” for his testimony on the city’s lead-contamination crisis before Congress and demanded a retraction.
And Snyder’s successor, Democratic Gov. Gretchen Whitmer, is considering ending state aid for the private attorneys of Flint defendants and litigation targets, including her predecessor, when the money runs out at year’s end.
There remains the possibility that Attorney General Dana Nessel’s office may file charges against the former Gateway computer executive as Wayne County Prosecutor Kym Worthy reviews the Flint water investigation and remaining criminal cases for Solicitor General Fadwa Hammoud.
Special Assistant Attorney General Todd Flood raised questions about Snyder as a special prosecutor in the involuntary manslaughter preliminary exam of former state Health and Human Services Director Nick Lyon.
Then urban affairs initiatives director Harvey Hollins testified in October 2017 that he informed Snyder about the 2014-15 Flint area Legionnaires’ disease outbreak in December 2015, contradicting Snyder’s testimony to Congress that he first learned of it in mid-January 2016.
“There are still people out there that believe the trail led right up to Snyder much earlier than he has contended,” said Bill Ballenger, a Flint region resident, political analyst and former Republican lawmaker. “I think this is going to go on for a considerable amount of time.”
Letter prompts action
Two days before he was fired last month, Hall received a letter from Snyder’s attorney berating him for his statements about the former Republican governor in a radio interview. The letter asked Hall to contact the radio station to correct his statement.
Hall’s references to Snyder in the Jan. 8 Michigan Radio interview “improperly impugn” the former governor’s character and violated professional conduct rules for lawyers, attorney Brian Lennon said in the Feb. 5 letter on which he copied Nessel, Hammoud and Flood.
“Your comment was clearly intended to influence listeners that ‘folks in government much higher up,’ presumably including our client, are criminally culpable, or at the very least subjects or targets of your investigation,” Lennon wrote.
Lennon’s firm, Warner, Norcross & Judd, which has represented Snyder since 2016, told The News it stood by the letter to Hall and had nothing to add.
On Feb. 7, Hammoud fired Hall. Nessel replaced him with in-house prosecutors, drawing criticism for a potential conflict in the appointment and lingering questions regarding the reason for Hall’s termination.
The radio interview referenced in Lennon’s letter was “one factor of many” why Hall was fired, Nessel’s office said, but the decision also reflected Nessel’s desire to appoint in-house “career prosecutors” to the cases.
“We are doing everything in our power to provide justice to those harmed in Flint and ensure all public comments on these cases come from our communications division,” Nessel spokesman Dan Olsen said. “Noah Hall was never authorized to speak to the press.”
The attorney general’s office did not say whether the letter by Snyder’s attorneys influenced the decision to terminate Hall.
Lennon alleged Hall’s Jan. 8 comments showed “a pattern of complete disregard” for the Michigan Rules of Professional Conduct, a pattern that included a history of “extrajudicial statements” by Hall and Flood.
In the radio interview, Hall had said there might be “folks in government much higher up” who should be held accountable. He also noted the inconsistencies between Snyder’s testimony before Congress and Hollins’ testimony in 67th District Court.
“This presents at least the strong possibility that Gov. Snyder’s testimony before Congress was a lie, that Gov. Snyder was not honest in his testimony before Congress, he was not honest when he said he knew about Legionnaire’s disease,” Hall said.
Lennon countered that Hall’s representation that Snyder had learned about Legionnaires’ concerns “months” before January 2016 was incorrect.
“Even if Mr. Hollins did in fact notify Mr. Snyder of the uptick in Legionnaires’ disease in Genesee County, a Christmas Eve 2015 notification is not ‘months’ before a mid-January 2016 press conference,” Lennon wrote.
Hall defends interview
Hall conceded to The News that he’d misspoken regarding the “months”-long interval, but stood by the rest of his statements in the interview.
The letter from Snyder’s lawyer was not the first the special counsel team had received that disagreed with various aspects of the Flint investigation, Hall said.
“I was focused on investigating bond fraud with the (Karegnondi Water Authority) and failures by the Department of Environmental Quality and all of the unlawful activity that went into covering up the decisions,” he said.
“Gov. Snyder and his attorneys in no way scared me off or would have pushed me off from continuing my work.”
Nessel made reference to Lennon’s letter on Michigan Radio March 6 while noting Hall’s comments on an ongoing investigation could jeopardize that process.
She said Lennon had threatened to file a grievance against Hall. But Nessel spokesman Olsen later clarified to The News that the “tone and tenor” of the letter implied a grievance would be the next step.
“The problem is, as attorney general of the state, all these special assistant attorneys general report to me and I’m directly liable for anything they do,” Nessel told Michigan Radio.
Who will pay the bills?
Warner Norcross & Judd has billed the state for roughly $4.3 million in work related to the Flint water crisis through the end of the calendar year, according to state records. The state has spent more than $30 million in total to pay for the legal costs for state prosecution, civil litigation and defense lawyers for state employees charged by the state.
Warner, Norcross & Judd has not yet submitted a bill for work done in 2019. It’s not clear yet whether those invoices would be paid.
In January, Whitmer said she would ensure “taxpayers are protected and are getting their money’s worth and that people of Flint get the justice they deserve.” She continues to review “the best way forward” for Flint and for the state, her spokesman Tiffany Brown said.
“There is no easy solution,” Brown said in a statement. “This administration has to make some tough decisions and deal with lawsuits and legal bills for actions that were not on Gov. Whitmer’s watch.”
Lawyers for Nick Lyon and ex-Chief Medical Executive Eden Wells — who are both facing involuntary manslaughter and other charges related to the Flint region Legionnaires’ outbreak that killed 12 and sickened 79 others — have argued that the state is obligated to pay for the defense of public servants because the charges are related to the jobs they performed for the state.
The future of the complex payment arrangement in the Flint water litigation has been a close second to the overriding concern regarding whether Snyder is criminally culpable in the Flint water crisis, Ballenger said.
“Who pays the bill?” he said. “That’s still an open question.”
Whitmer has pledged that she will do better than Snyder in defending state workers overall. But if the state stopped paying legal bills for former and current state employees in the Flint cases, it could have a “chilling effect” on those public-sector servants, Ballenger said.
“It’s very injurious to public employment,” he said.