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Judge William Whitbeck

Judge William Whitbeck


September 22, 2017

Recently Richard McLellan, my good friend and former law partner, authored a piece in DOME magazine dealing with the Flint water crisis.  He advances two distinct, but interconnected, arguments.  Each is based on a fallacy.  Neither is supported by the facts.  Indeed, together they represent a prolonged attempt to wish those facts away in support of substituting a laundry list of civil, administrative, and regulatory remedies for active criminal prosecutions

First, McLellan says that Attorney General Bill Schuette is relying “almost entirely on criminal prosecutions to address what are essentially bureaucratic failures.” He lifts a buzzword concept much beloved in some circles— “over-criminalization”—and then transfers it from its original context—political and policy differences—in order to apply it to a wholly different context, “governmental administrative decisions.” 

In the process, McLellan, without ever saying so, conflates Michigan with Travis County, Texas.  But he does so without any reference to the facts and circumstances that underlay some of the shameful legal shenanigans that the Travis County prosecutors engaged in over the last 25 years.  However, Bill Schuette is not Ronnie Earle, the former Travis County prosecutor.  And the charges that Republican Attorney General Schuette, in consultation with Democrat Genesee County Prosecutor David Leyton, has brought do not relate in any meaningful way to political or policy disputes.     

Second, McLellan says that the colossal governmental failures in Flint at every level of government were a tapestry of repetitive—but excusable—mistakes.  This is a deadly serious charge.  Essentially, McLellan is saying that Attorney General Schuette and Prosecutor Leyton cannot tell, or have chosen to ignore, the difference between excusable mistakes on the one hand and actual crimes on the other.

This generalized assertion has become the master narrative of the Snyder administration.  Various insiders and fellow travelers operating within the Lansing echo chamber have trotted it out repeatedly over the last several years.  This is an act of reflexive and collective amnesia, coupled with outright denial.  It is also a public relations strategy masquerading as a legal theory.

“How could Michigan have been the scene of so much conspiracy, criminal misconduct, and moral corruption over such an extended period of time?” these apologists ask rhetorically.  Better, they imply, to ignore the extensively documented facts and stitch together a narrative that allows those in power to avert their eyes from what actually happened and to disclaim any direct responsibility for the results.  That way, it is all so perfectly understandable, so comprehensible, and not the least reprehensible, as least in a criminal sense. (See defense attorney Billy Flynn and sycophant reporter Mary Sunshine in Chicago, from whom I unashamedly borrowed this collection of disclaimers.)   

But facts are stubborn things and they cannot be wished away. There is ample probable cause to believe that in the Flint disaster real people committed real crimes. Scores of Flint citizens have suffered from lead poisoning, over a dozen people have died of Legionnaires’ disease, and hundreds of millions of dollars of repair and remediation costs will be paid for by Michigan taxpayers as a result of the Flint water crisis.  The crimes that public officials and employees committed contributed directly and proximately to the public health and environmental catastrophe that is now synonymous with the Flint place-name. 

These public officials and employees do not deserve a pass based on the bland, generalized admission that “mistakes were made.”  The charging documents that the Attorney General filed in the course of his investigation lay out the facts establishing probable cause in great detail.  Remarkably, neither my good friend Richard McLellan nor the other Snyder administration apologists make any reference to the underlying facts that these documents painstakingly set forth.

Travis County, Texas:  The Poster Child for Over-Criminalization

Political wonks, particularly on the conservative side, remember well a series of politically motivated prosecutions that successive Travis County prosecutors brought dating back to the 1990s.  Although Texas has been reliably Republican for decades, Travis County—which includes Austin, the state capitol and the University of Texas—reliably votes Democratic.  Not surprisingly, its elected prosecutors have been rather partisan Democrats.  Also, not surprisingly, the most prominent politicians that these prosecutors targeted and prosecuted were Republicans:

  • The first high profile target was Tom DeLay, then the Republican majority leader in the U.S. House of Representatives. The Travis County prosecutor charged DeLay with money laundering and conspiracy, among other things.  After years of legal maneuvering, appellate courts dismissed the charges on the basis that there was insufficient evidence for a conviction, but not before DeLay lost his job and his reputation. 
  • The second target was Republican U.S. Senator Kay Bailey Hutchinson.  A judge ultimately ordered the dismissal of all charges in that case before trial and Senator Hutchinson retained her Senate seat for a number of years. 
  • The third target was Governor Rick Perry.  After the new Travis County prosecutor, Rosemary Lehmberg, was arrested for drunk driving Governor Perry threatened to veto $7.5 million in funds for the Travis County prosecutor’s office if Lehmberg did not resign.  Lehmberg charged Governor Perry with misuse of public funds and attempted coercion.  The Texas Criminal Court of Appeals dismissed these charges and Governor Perry now serves as U.S. Secretary of Energy.

There is little question that these charges were politically motivated and that the Travis County prosecutors utilized the justice system to criminalize political and policy differences.  It is a very short step—and McLellan takes that step—to tweak the language and substitute the phrase “governmental administrative decisions” in order to advance an over-criminalization argument, thereby carefully avoiding the thoroughly inaccurate Texas comparison. 

So, using the more directly descriptive language, is Attorney General Bill Schuette attempting to criminalize political and policy differences as the Travis County prosecutors did in Texas?  Of course not.  I do not know the political persuasion of the various defendants that the Attorney General has charged, but to assert that he is prosecuting these unelected bureaucrats because of their politics, generally unknown, is ludicrous on its face. 

And, although several defendants have pleaded guilty to various offenses, no trials have yet been held and there have been no dismissals of any kind.  Therefore, although McLellan and various other apologists for the Snyder administration routinely assert some variant of the “over-criminalization” theme, no court has yet agreed with them and neither should the public.

Simply put, Michigan is not Travis County. Nothing that the Attorney General has done in the course of his investigation of the Flint Water Crisis has moved our state in that direction. There are no discernable political or policy differences between the prosecutors on the one hand and the various defendants on the other that are at issue in this matter.  McLellan’s “over-criminalization” argument is an implausible chimera and a rather transparent one at that. 

“Mistakes Were Made”

The distinction between honest, if spectacularly dumb, mistakes and actual crimes is a critical one.  If the health, safety, and environmental crises that afflicted Flint so drastically was simply the cumulative result of a number of blunders, then the various non-criminal remedies that McLellan outlines in some detail might be appropriate.  But what evidence do we have that this is the case?  McLellan advances none at all.  What is striking about the remedies he sets out is that the Snyder administration has actually used so few of them to hold individuals directly accountable for their “mistakes.”

The fact of the matter is that the Snyder administration has fired exactly one state civil service employee since the outset of the Flint Water Crisis, of the hundreds who were involved.  True, when the Attorney General has brought criminal charges, the defendants have been suspended, but with full pay and benefits.  And, at a cost of millions of dollars of taxpayer funds, the administration has arranged for the payment of the legal fees of each and every one of these defendants, as well as for Governor Snyder’s own criminal defense. 

Those familiar with the arcane world of white-collar crime will recognize this as a common tactic whereby large corporations assume the legal costs of individual employees charged with crimes.  If you believe these corporations engage in this tactic simply out of high-minded altruism, think again.  These corporations are buying the goodwill—and often the silence—of their employees.  I find it remarkable that the State of Michigan has adopted the same approach. 

Overall, the Snyder administration’s failure to act is incomprehensible if its master narrative—that we are dealing only with bureaucratic failures—is correct.  But assume for the moment that it is incorrect.  Assume that we are dealing with crimes.

The gist of McLellan’s argument is essentially definitional.  He says that the Attorney General is using “vague notions of ‘common law’ to punish state and local employees.”  Presumably, McLellan is referring to the felony of misconduct in office and apparently he wants to define it out of existence by calling it “vague,” a word we lawyers just love to use.

But somehow, I doubt that the Michigan Legislature, when in 1931 it adopted the concept that a felony at the common law would be considered a felony under the Michigan criminal code, thought that it was enacting a vague provision that might create collateral consequences.   

And somehow, I doubt that the Michigan Supreme Court intended to give prosecutors a vague and unlimited hunting license when it recognized misconduct in office as just such a common law felony and provided explicit criteria for its use.    That McLellan and others are unfamiliar with this offense, despite its direct relevance and its recent history of use in the Waterstone, Kilpatrick, and Dunnings cases, hardly renders it vague.

McLellan’s final argument is a disconcerting non-sequitur.  He points out that the Public Health Code immunizes Department of Health and Human Services employees from personal liability for damages sustained in the performance of departmental functions except for wanton and willful misconduct.  This is a codification of the common law doctrine of sovereign immunity, under which the King, and his minions, can do no wrong and therefore cannot be held personally responsible for damages. 

But sovereign immunity is a defense only in civil cases against governmental entities and employees.  It has no relevance whatsoever to criminal prosecutions.  Presumably, DOME readers can spot a red herring when it floats limply to the surface at the end of an otherwise sophisticated legal/political argument.

Conclusion:  “The Chickens**t Club”

In his new book, The Chickens**t Club (the ellipsis is mine), Jesse Eisinger decries the increasing reluctance of the U.S. Department of Justice to bring criminal charges against corporate executives who may have committed white collar crimes.  While this reluctance has grown over recent years, the most striking example was the almost complete lack of criminal prosecutions against the high-level, highly paid individuals at the heart of the financial crisis that led to the Great Recession and that came perilously close to causing an international financial meltdown.    

There are a number of reasons for this reluctance, including the complexity of financial crimes, the risk of “collateral consequences,” the power of the highly compensated white-collar defense bar and the parallel power of the Washington “Iron Triangle” of lobbyists, lawmakers, and bureaucrats, and the availability of alternative civil and quasi-civil remedies that do not require the time and expense of criminal prosecutions.  But whatever the reasons, the hard fact is that the Obama administration chose, or drifted into, a no-prosecution posture and the Trump administration shows no signs of reversing that posture.

As a result—while the occasional odd journalist and the occasional oddball populist politician may rail against the great vampire squids of Wall Street—not one of the high-level wizards who engineered the marvelously complex and marvelously fraudulent transactions that led to the financial crisis has served one day of prison time, or even faced a single criminal charge.  On balance, the worst crime of all may be that there has been no punishment. . . . and no justice. 

Eisinger sets this situation out in great detail.  He derives his title from a speech that James Comey (yes, that James Comey) gave after he became the U.S. Attorney in the Southern District of New York in 2002.  Comey was addressing his criminal prosecutors and bluntly asked, “Who here has never had an acquittal or a hung jury?”  A number of the prosecutors raised their hands, expecting words of praise.

“Me and my friends have a name for you guys,” Comey said.  “You are members of what we like to call the ‘Chickens**t Club’.”  He then made his point explicit.  “If it’s a good case and the evidence supports it, you must bring it,” he said.

Comey was exactly right.  High-profile, high-risk criminal cases may be hideously complex, with hundreds of potential witnesses and thousands of documents.  The process of getting to trial may be lengthy and fraught with a myriad of legal, political, and budgetary complications.  There may be excellent lawyers, powerful politicians, and public officials on the other side, all perfectly willing to run to the media with their tactic of admitting mistakes while denying crimes. And yes, there may be collateral consequences such as the fear, risk aversion and morale issues to which McLellan refers.

On balance, while these things may inform prosecutorial discretion, they do not and cannot dictate the final decision.  First, last, and always, the prosecutors’ job is to do justice, not only for the direct victims of crimes but for the society as a whole.  And, I contend, it is the prosecutors’ job to bring that justice hard and fast, without compromise and with perhaps a touch of Old Testament passion. 

If there is a good case to be made—if there is probable cause to believe that crimes have been committed and that the proposed defendants committed those crimes—then prosecutors must bring that case before a judge and a jury.  To do otherwise is to become a member of the, “Chickens**t Club.”  It is a club that I doubt Attorney General Schuette and Prosecutor Leyton will be joining any time soon.

William C. Whitbeck is a graduate of Northwestern University’s Medill School of Journalism and the University of Michigan Law School. During his long career, he has served on the direct staff of three Michigan governors, George Romney, William Milliken, and John Engler. In 1997, Governor Engler appointed him to the Michigan Court of Appeals where he served as a judge for almost 17 years, with six years as Chief Judge. Over the past year, he served as a Special Assistant Attorney General, advising Attorney General Bill Schuette on the Flint water crisis. Whitbeck is also the author of a legal mystery entitled, “To Account for Murder,” and is currently working on a second one. 

Judge Whitbeck and Richard McLellan were partners, first at McLellan, Schlaybaugh, and Whitbeck and then Dykema Gossett. Over the years, they have disagreed repeatedly, but have remained the best of friends.

September 21, 2017 · Filed under Judge William Whitbeck



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