Inside Dana Nessel’s ‘shit show’ Flint water investigation

Ignored legal warnings, ‘overwhelmed’ prosecutors, and the secret testimony of ex-Governor Snyder’s chief of staff

click to enlarge The prosecution of the Flint water crisis has been mired in setbacks. - Shutterstock
Shutterstock
The prosecution of the Flint water crisis has been mired in setbacks.

As the decade anniversary of the Flint water crisis nears in April, and on the heels of Michigan Attorney General Dana Nessel ending her office’s Flint criminal investigation after the state Supreme Court threw out its criminal charges against ex-Governor Rick Snyder and eight other officials, Metro Times uncovered details of what insiders described as a chaotic four-year investigation doomed by “overwhelmed” prosecutors — and poor decisions by Nessel from the start.

Metro Times also confirmed that Dennis Muchmore, Snyder’s chief of staff during the early 2014-2015 period of the Flint water crisis, testified in front of the secretive one-man grand jury that Nessel’s office chose to use in order to issue indictments against Snyder and eight other state and Flint city officials in 2021.

“It’s against the court order for me to confirm or deny participation in that proceeding,” Muchmore tells Metro Times. “If I responded, which I would like to do, I’d be in violation and could be held in contempt of court.”

Muchmore declined further comment.

Although the nature of his testimony is unknown, legal sources tell Metro Times it’s likely Muchmore’s involvement was as a witness for Nessel’s prosecutors against Snyder and other Snyder administration officials.

Despite Muchmore and other witnesses’ testimony, in a unanimous June 2022 decision, the state Supreme Court ruled that Nessel’s office’s use of a one-man grand jury in the Flint prosecution violated the state constitution, ultimately invalidating all Flint criminal charges filed by Nessel’s office.

Multiple sources described Nessel’s Flint investigation team as being composed of attorneys she knew, and handpicked — including a former business partner and political donors. Soon after assuming office in 2019, Nessel purged the original Flint criminal investigation team assembled in 2016 by her predecessor, Republican Bill Schuette. Schuette had appointed Todd Flood, an independent prosecutor in Wayne County, as special prosecutor leading the Flint probe; Flood tapped Andy Arena, former head of Detroit’s FBI office, as chief investigator. Between 2016 and 2018, Flood scored key legal victories, highlighted by successfully convincing judges to force Nick Lyon, the ex-state health director, and Eden Wells, ex-chief medical executive of Michigan, to face jury trials for involuntary manslaughter charges related to their actions during the water crisis. Moreover, The Guardian reported that Flood was close to filing racketeering charges against several state officials over alleged financial crimes connected to the Karegnondi Water Authority. In April 2014, Flint switched to the Flint River as a temporary source while the KWA pipeline was under construction.

Nonetheless, Nessel fired Flood, Arena, and most of the original Flint team. She replaced Flood with Fadwah Hammoud, a prosecutor in the Wayne County prosecutor’s office who helped her campaign fundraise. Joining Hammoud was Kym Worthy, the longtime Wayne County prosecutor.

“They were essentially just ripping up our work and starting from scratch,” Noah Hall, a Wayne State law professor who served as an assistant attorney general on Flood’s team, tells Metro Times. (Nessel fired Hall along with Flood and Arena.)

The following lays out Nessel’s failed Flint investigation, beginning before she even won election in 2018, through her office’s Flint criminal charges being dismissed in 2022 and 2023.

‘Politically charged show trials’

As a candidate in 2018, Nessel vocally criticized the ongoing Flint investigation as “politically charged show trials” that were moving too slowly. The AG candidate foreshadowed that, if elected, she would overhaul the investigation and fire Flood.

Her criticism was “very unusual,” a legal source familiar with the Flint proceedings says about a candidate for AG — who had no access to confidential documents, legal discovery, or information on impending charges — to publicly criticize an investigation they might take over.

“I don’t remember anything that candidate Dana Nessel said [about the investigation] that struck me as particularly insightful or informed,” Hall tells Metro Times.

Multiple sources questioned the real motivation behind Nessel firing Flood and relaunching the investigation — boiling her decisions down to petty politics and personal animus.

“There was no love lost between Dana Nessel and Todd Flood,” a legal source familiar with the history between the two tells Metro Times about their relationship when they both worked as younger attorneys in the Wayne County prosecutor’s office. “They were not friends. [Nessel] made no bones about it when she was running about all this money they were paying [Flood].” Hall echoes that Nessel’s distaste for Flood, and Schuette, was widely known.

“I feel betrayed. It seems justice for Flint residents is becoming out of reach.”

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Running for AG in the fall of 2018, candidate Nessel’s criticisms of the Flint investigation did more than spark media headlines; it turned criminal defendants who were cooperating with Flood silent.

“There were people beginning to cooperate and then you have Dana Nessel running for office saying I’m gonna shitcan the whole thing,” a source familiar with the investigation says. Another source adds that defendants “clammed up” and became “downright defiant” when Nessel began publicly criticizing the investigation.

Those cooperating defendants-turned-silent included former Flint emergency manager Gerald Ambrose and ex-state drinking water chief Liane Shekter Smith. Ambrose was one of two emergency managers Flood charged with felonies for orchestrating an allegedly fraudulent financial deal that allowed a nearly bankrupt Flint to borrow $100 million dollars to join the new KWA water system. Shekter Smith was originally charged with felonies for her role in helping conceal Flint’s deadly Legionnaires outbreak from the public, but later reached a plea deal in exchange for her cooperation. In October 2014, Shekter Smith placed a worried call to a state health official stating that Snyder’s office “had been involved” in responding to the outbreak — and urged the health department not to notify the public. (Snyder testified to Congress that he didn’t know about the outbreak until January 2016.)

But soon after Ambrose and Shekter Smith began providing prosecutors with information that could help build cases against top officials — including Snyder — Nessel began signaling she might torpedo the existing investigation. Suddenly, their lips were sealed.

Former special prosecutor Todd Flood didn’t respond to our request for comment for this story. In a 2023 interview, he insinuated his removal by Nessel was due to politics.

“We were moving in a normal, white collar crime type case, just as how I was trained, just as the feds would have done it, and we worked in conjunction with a lot of different agencies, and we moved the ball down the field, we were winning, the fact of politics coming into play to have us removed is what it is.”

click to enlarge Col. Kevin Bohnsack, state air surgeon, Michigan Air National Guard, escorts Michigan Attorney General-elect Dana Nessel to the Capitol dais at the inauguration of Gov. Gretchen Whitmer, Lansing, Mich., Jan. 1, 2019. - Conner Flecks / Alamy Stock Photo
Conner Flecks / Alamy Stock Photo
Col. Kevin Bohnsack, state air surgeon, Michigan Air National Guard, escorts Michigan Attorney General-elect Dana Nessel to the Capitol dais at the inauguration of Gov. Gretchen Whitmer, Lansing, Mich., Jan. 1, 2019.

‘Boxes in the basement’

In April 2019, Nessel’s office announced it had suddenly discovered, and seized, nearly two dozen boxes it claimed contained a “trove of documents,” and devices, that had supposedly been hidden in the basement of a state building. Nessel’s office claimed the boxes contained computer hard drives, belonging to state officials, that Flood’s team had failed to search.

Days later, Nessel’s office fired Flood, claiming the boxes showed he failed to “fully and properly” pursue legal discovery over his three-year investigation. Soon after, Nessel stunned Flint residents by dropping criminal charges against eight state and city officials. In a meeting with Flint residents, Hammoud and Worthy claimed the boxes contained potential evidence Flood failed to obtain — leaving them no choice but to drop all criminal charges and restart the investigation.

“We were told at some point that we already had this information,” Worthy told a crowd of frustrated Flint residents. “We found out that it was not anything that we already had.” In totality, the duo claimed there were millions of Flint-related documents that Flood’s team hadn’t searched.

But most of what they told residents wasn’t true, according to multiple sources familiar with the Flint investigation. “It wasn’t quite the media splash it was made out to be,” a source familiar with Nessel’s investigation says.

“It wasn’t a treasure trove worth of stuff,” the source adds. The boxes contained “some” new stuff that the AG’s office’s civil division hadn’t handed over to Flood, the source explains, but contrary to Nessel’s office’s claims, the boxes primarily held duplicates, and backups, of documents and devices Flood’s team had already obtained.

The source’s account is consistent with a February 2019 email sent by Eric Jamison, an Assistant Attorney General in Nessel’s office. After speaking with two state officials familiar with the boxes, Jamison emailed attorneys in the AG’s office explaining that the boxes contained external hard drives with “back-up copies of forensic images of computers” belonging to state environmental officials “involved with Flint.” He added that the “original images” were housed in the environmental and technology departments — and that the external hard drives were “simply a back-up copy.” Jamison also said that the boxes contained “non-Flint water related documents” taken from the offices of two environmental officials who’d been criminally charged over the water crisis. In a sworn 2019 affidavit, Jamison revealed that an attorney from Nessel’s office’s Flint criminal team had reviewed the boxes and found they held “copies of materials that have already been provided” to Flood.

The misleading portrayal provided by Nessel’s office to Flint residents was par for the course, Hall tells Metro Times. “My hunch is not much of what [Nessel] said is going to review well with the facts looking at it now in 2023.”

‘Shit show’

After firing Flood in April 2019, Nessel appointed Hammoud, a prosecutor in the Wayne County prosecutor’s office, to lead the Flint prosecution. The move was a head-scratcher for many in the Michigan legal community.

Arthur Busch, the former Genesee County prosecutor, tells Metro Times that in Michigan’s legal circles, criminal lawyers generally know who the “higher level players are in this business.” But Busch, who criticized Nessel’s decision to fire Flood, says he had never heard of Hammoud. “I don’t think she had any big reputation.”

Another legal source familiar with the Flint criminal proceedings is more blunt: “[Hammoud] never even tried a case [before a jury], so what in the world was she doing replacing Todd Flood, who was an accomplished trial attorney?”

Alongside Hammoud, Nessel hired veteran prosecutor Kym Worthy to lead the prosecution. But according to multiple sources, Worthy was semi-removed from the investigation and involved in name only — with her day-to-day responsibilities as chief prosecutor in the county Detroit sits taking up most of her time.

“It was a shit show,” a source with knowledge of what transpired internally in Nessel’s office’s Flint investigation tells Metro Times. “They weren’t prepared for what was coming. If you place amateurs in there to play in the big leagues, they’re probably gonna get their asses kicked.”

Missteps began early into the revamped investigation when Hammoud and her team decided to deploy a secretive one-man grand jury in order to issue indictments. The process consists of prosecutors submitting evidence, and witnesses, to a judge behind closed doors; the judge then decides whether or not there’s enough evidence to issue indictments. Upon deciding to use the one-man grand jury, Hammoud was cautioned to prepare for attorneys representing Snyder, and other defendants, who would file motions to, among other things, challenge the legality of the one-man jury.

“They didn’t do it well,” the source says, adding that Hammoud and other prosecutors were simply “overwhelmed” by the multitude of high-priced attorneys representing Snyder and other defendants — and the gauntlet of legal motions they filed to delay criminal proceedings, and ultimately, dismiss the charges.

Another failure by Nessel’s office revolved around a decision not to use a legal taint team as part of their discovery process. A taint team is composed of attorneys who sort through discovery materials to remove anything that might be protected by attorney-client privilege.

“[Flood] flat out told them before he was out the door that they needed to use a taint team,” a source familiar with Nessel’s investigation tells Metro Times. “They were well aware.”

But Nessel’s office didn’t do so, resulting in a judge ordering them to set up a taint team. By Nessel’s office’s estimates, the judge’s order would cause a two-year delay in criminal proceedings at a cost of an additional $37 million dollars to Michigan taxpayers.

click to enlarge Former Governor Rick Snyder. - Michigan Municipal League via Flickr
Michigan Municipal League via Flickr
Former Governor Rick Snyder.

Muchmore testified

For prosecutors, Muchmore, a top official close to Snyder during the water crisis, was a key official capable of providing evidence of what — and when — the governor knew about Flint’s toxic water.

Such a high-value witness would have to be protected, says Busch, the former Genesee County prosecutor. “The main reason you use a one-man grand jury is to protect your witnesses,” says Busch, who criticized Nessel’s decision to fire Flood and relaunch the investigation. Busch explains that the point of using a one-man grand jury for top government witnesses is so criminal defendants can’t learn their identity before a trial and “bend their arms” or “kill them” before they testify.

The Intercept reported that, prior to Nessel’s investigation, Flood and his team concluded Snyder knew about the deadly Legionnaires outbreak as early as October 2014 — 16 months earlier than he notified the public — due to an unusual two-day flurry of phone calls between Muchmore, Snyder, and ex-MDHHS Director Lyon. The avalanche of calls between Snyder and his lieutenants occurred at the same time state health and environmental officials were trading worried calls and emails about the outbreak in Flint. PBS reported that the waterborne disease may have been responsible for the death of over 100 Flint residents, but many Flint activists believe many more residents died as a result of misdiagnosed, or undiagnosed, Legionnaires.

“If you exhumed the bodies [of people who died of pneumonia in 2014-2016], you’d find hundreds of people who died of Legionnaires,” a source familiar with the Flint investigation tells Metro Times.

With Muchmore’s testimony, the one-man grand jury indicted Snyder on two counts of willful neglect of duty, a misdemeanor with a penalty of one-year in prison and a $1,000 fine. But The Intercept reported that before his firing, Flood’s team was prepared to charge Snyder with misconduct in office — and working on building a case against Snyder for involuntary manslaughter for his failure to notify Flint residents sooner about the Legionnaires outbreak.

‘Travesty for the people of Flint’

Nearly a decade later, Flint residents are still struggling with water-related illnesses, and processing the likelihood that no government official will ever face a jury, or be convicted, for their role in poisoning Flint.

“I feel betrayed,” Nayyirah Shariff, a Flint activist who founded the grassroots group Flint Rising, tells Metro Times. “It seems justice for Flint residents is becoming out of reach.”

On Nessel torpedoing the original Flint investigation, only to ultimately lead it to being tossed out of court, Hall is uncertain what the driving force behind Nessel’s decisions were.

“Almost none of their decisions worked out,” Hall says. “It certainly looks like either they didn’t make very good decisions, with good intentions, or they didn’t have good intentions. The result is the result.”

Peter Hammer, a Wayne State law professor who authored a report that found systemic racism at the root of the Flint water crisis, condemned Nessel’s actions.

“The Attorney General's treatment of the criminal case is an absolute travesty for the people of Flint,” Hammer tells Metro Times. “She took an advanced criminal investigation that was headed in the right direction and started all over, almost from scratch. The resulting failure to bring any effective criminal charges is inexcusable. It is a tragedy for the people of Flint. It also means that important parts of the story behind the Flint Water Crisis will never be publicly known.”

Nessel’s office did not respond to requests for comment for this story.

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Jordan Chariton

Jordan Chariton is an independent journalist and CEO of Status Coup News. He’s reported in Flint nearly 20 times since 2016. His first book, ‘We The Poisoned: Exposing the Flint Water Crisis Cover Up and the Poisoning of 100,000 Americans,’ will be published in summer 2024...
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