April 29, 2016
Below is my column in USA Today on the prosecution of three state and local officials in the Flint, Michigan water scandal. Michigan Attorney General Bill Schuette has promised more (and higher ranking) defendants in the coming weeks. However, as discussed in this column, these cases are not as straightforward as the pictures of bottles of Flint water juxtaposed against clean water. While there are strong elements to some of the charges, the prosecution is not nearly as easily or obvious as has been suggested in the media, in my view.
It was a popular if somewhat chest-thumping moment for Michigan Attorney General Bill Schuette, who is expected to run for governor in 2018. He recently announced criminal charges against three people in the Flint water crisis and then, to the delight of many, pledged that they were “only the beginning” and that “nobody’s ruled out.”
However, history has shown us that there can be a thin line between a public crusade and a show trial. Just as a high level of lead makes for bad water, a high level of politics makes for bad cases.
The Flint case is not nearly as open and shut as suggested by many. Prosecutors have targeted three water officials with an assortment of felony and misdemeanor charges. The most serious allegations concern a 2015 report, “Lead and Copper Report and Consumer Notice of Lead Result.” City and state officials collected 71 lead level samples from homes, well short of the required 100. And two samples were left out of the final report — two that just happened to have “high-lead” readings that would have triggered public notice as showing “action levels” above 15 parts per billion. Other allegations focus on advising residents to run or “pre-flush” their water before taking samples and other actions that allegedly helped reduce lead levels.
The most immediate problem with these cases is that this is a highly complex area of overlapping rules and jurisdictions. The reporting rules are rife with differing administrative interpretations and practices. For example, pre-flushing was permissible under state regulations that existed at the time of the crisis.
Then there is Mike Glasgow, the former laboratory and water quality supervisor who lives in Flint and now serves as the city’s utilities administrator. He faces a felony charge for allegedly tampering with evidence and a misdemeanor on willful neglect of duty. Yet Glasgow is seen by many as the one official who was aware of problems early on and tried to help when the crisis hit. He personally gathered samples in at least one case of a high-risk home and complained about the expedited schedule for switching over to the river water.
Lee Anne Walters, a Flint mother whose home was one of the two samples removed from the final report, said Glasgow left her an urgent voice message that said, “Please don’t drink your water. Please don’t let your kids drink the water. Don’t mix their juice with the water,” In her view, “Mike Glasgow was the only person who was helping us from the city. I really kind of feel like Glasgow was stuck between a rock and a hard place …. Who was he supposed to go to? Who is he supposed to talk to?” Jurors are likely to ask the same questions.
Special counsel Todd Flood dismissed Glasgow’s defense as reminiscent of “Nuremberg and the like.” The problem is that this is not Nuremberg, and people like Glasgow are not little water-based Adolf Eichmanns. Indeed, Glasgow reportedly opposed the switch to the Flint River as a water source and cooperated with investigators, the FBI and congressional committees.
One of the most important pretrial fights is likely to be whether Flood can exclude evidence of the practices and status of drinking water outside Flint. It would take too long to list the states with unsafe levels of lead in their water supply. It is easier to list the nine that do have safe levels: Alabama, Arkansas, Hawaii, Kentucky, Mississippi, Nevada, North Dakota, South Dakota and Tennessee, CNBC reported. The corrosion problems in Flint are common across the country, and politicians do not want to spend the huge amount of money needed to remove the pipes. Sound familiar?
The most serious allegations are directed at Michael Prysby, then an engineer with Michigan’s Department of Environmental Quality, and Stephen Busch, the district supervisor for the Office of Drinking Water. However, both these officials are likely to seek to show that what they did was not out of the norm — like choosing a testing regimen over the use of corrosion chemicals, or the common practice of pre-flushing before sampling in order to avoid artificially high readings due to stagnant or still water flow.
As Schuette fulfills his promise to bring charges further up the ladder of state government, these challenges are likely to become even greater. Officials often rely on subordinates to interpret state and federal rules and practices. A criminal case against Michigan Gov. Rick Snyder, for example, seems exceptionally weak at this point. Unless there’s evidence that Snyder was out to poison the citizens of Flint or knowingly supported the falsification of reports, any liability would be confined to the civil courts or, even more likely, the court of public opinion.
None of this means that criminal charges are improper in the Flint water scandal, but the criminality in such cases may be far murkier than Schuette has suggested.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.