For the long-suffering residents of Flint, Michigan, justice has been hard to come by.
In 2014, the city opted to use water from the Flint River, instead of the water treated by the Detroit Water and Sewage Department, as its primary municipal source. The results were disastrous. The city’s aging pipes were corroded by the unsafe river water and failed, leaking highly elevated levels of lead into the system. As a result, tens of thousands of locals, including thousands of children, had long-term exposure to the heavy-metal neurotoxins. The sourcing change also contributed to an outbreak of Legionnaires disease, which infected hundreds and killed at least 12 Flint residents.
This was a man-made disaster, and someone should be held to account for it. Unfortunately for Michiganders, that hasn’t been easy. Four government employees–three state-level officials and one EPA administrator–have resigned or been dismissed. A variety of criminal charges were brought against state and local authorities, but nearly all those cases were dropped, dismissed, or resolved with plea agreements. But prosecutors in Michigan are not satisfied with their failure to impose accountability on the officials who presided over this calamity. So, they’ve now set their sights on the biggest target of all: former two-term Gov. Rick Snyder.
This week, a secretive grand jury composed of a single judge handed down indictments of Snyder and eight others. That itself is unusual, as such secrecy is rarely invoked for a state-level corruption case and is usually reserved for the federal level. The charges against Snyder include the misdemeanor charge of willfully neglecting his duties and failing to properly supervise the officials tasked with resolving the crisis in Flint. Specifically, the former governor is accused of “failing to inquire into the performance, condition, and administration of the public offices and officers that he appointed and was required to supervise” and of declining to “declare a state of emergency and/or disaster when the governor had notice of a threat of a disaster and/or emergency.” If convicted, Snyder could face up to a year in prison.
It behooves observers to await the evidence Michigan prosecutors have assembled in support of these charges. But the indictments do not inspire confidence that there is evidence that Snyder was intentionally engaged in a corrupt and malicious effort to harm the citizens of Flint. That evidence may exist, and prosecutors have told residents to stay tuned for some blockbuster revelations. But if we dispense with the speculation, all the language of this indictment alleges clearly is that the governor failed to micromanage the affairs of state in a way that would have been desirable only in retrospect.
In Michigan, the governor has broad (and overlapping, as there are two relevant laws that provide the executive with emergency powers in the event of a crisis) statutory authority to declare a state of emergency. In the case of Flint, Snyder invoked his emergency powers and formally requested assistance from the Obama administration in January 2016—some time after the crisis became known to public authorities and the press. When should Snyder have invoked emergency powers? The indictment does not say, because that is not a judgment that a prosecutor or a court can render.
Snyder’s response to the crisis might have been contemptibly sluggish, though it must be noted that Lansing began treating this crisis like it was a crisis well before an emergency declaration was issued. Nevertheless, the proper remedy for executive malfeasance of this sort—presuming Snyder’s conduct rises to this level—is the recall provision or impeachment and removal by the legislature. If failing to act in a manner deemed both decisive and timely—two subjective assessments that can only be rendered in an informed manner after the fact—are criminal, it would open the door to the criminalization of virtually all currently lawful conduct by a future governor. If that precedent is established, why would anyone but the most venal pursue a career in public service in the future?
The charges against Snyder are, however, mild when compared to some of the allegations against members of his administration. The former director of the state’s health department, Nick Lyon, is facing nine counts of involuntary manslaughter, as is former Michigan Chief Medical Executive Eden Wells. Snyder aide Richard Baird is charged with perjury, extortion, and obstruction of justice. A number of other Michigan officials must defend themselves against allegations of felony and misdemeanor misconduct.
Again, these are serious charges, and it would be unwise to prejudge them without a full understanding of the evidence prosecutors have collected. The allegations of perjury, in particular, appear substantial and may be proved in a trial (if they are not leveraged to secure a plea bargain). It will, however, be a heavy lift to establish corrupt designs on the part of these officials. And that which is bad is not necessarily prosecutable. Confusing the two in the heated pursuit of retribution has a tendency to backfire on overreaching prosecutors. For evidence of this, look no further than the bungled prosecution of the “Bridgegate” conspirators.
In May, the Supreme Court handed down a unanimous verdict that remanded the convictions of two associates of former New Jersey Gov. Chris Christie who had been found guilty of conspiring to shut down portions of the George Washington Bridge as part of an elaborate payback scheme to punish the stubbornly independent mayor of Fort Lee. Those convictions were overturned not because some new and exculpatory evidence had been uncovered by investigators. The Court simply determined that overzealous prosecutors had overextended their bounds in the pursuit of highly politicized vengeance.
The lane closures that the convicted had implemented, Justice Elana Kagan found, were clearly intended to make life difficult for the residents of Fort Lee. Nevertheless, this episode was also “a quintessential exercise of regulatory power,” and not a scheme “to appropriate the government’s property,” which would be required to prove a violation of the fraud statutes under which both William Baroni and Bridget Anne Kelly were convicted. Existing statutes, Kagan concluded, are tailored so as not to criminalize “all acts of dishonesty by state and local officials.” In the righteous desire to see justice done, federal prosecutors lost sight of the letter of the law. And in the process, they committed their own sins against the conduct of dispassionate and objective justice.
Time will tell whether Michigan’s prosecutors have similarly overplayed their hands. But there can be no doubt that all of Michigan’s public officials are motivated, perhaps even consumed by, a desire to see someone pay for the malfeasance that contributed to the untold suffering of Flint residents. In the pursuit of rectitude, they seem to have erred on the side of revenge. And that’s not justice.