At yesterday’s New York City Marathon, Albert Korir won the men’s division in 2:08:22, while Peres Jepchirchir won the women’s division in 2:22:39 after also winning at the Tokyo Games. Korir’s time is the equivalent of running 73-minute quarter miles over the course of 26.2 miles. To put this in perspective, 60 seconds is considered a good high school boy’s time for running a single quarter mile event. To run an average 73 second quarter miles for 26.2 miles is beyond my comprehension.
The blame game in the Benton Harbor water crisis has hit new levels with the latest series of emails released to the public last week. State officials are saying that they went above and beyond in their efforts to get the problem addressed through the local Benton Harbor commissioner. While Benton Harbor has consistently said they cannot address the issue if they do not have funds to fix the problem. In the meantime, communication with the citizens of BH was very limited and the citizens of BH continued to drink water containing lead for over a year. This feels like Deju Vu all over again. I wonder how many more communities are going to be going through this same thing. I also wonder if Attorney General Nessel is going to be filing criminal charges in this case like she has done in the Flint case? I hope not.
Last night I received an email from Nick Lyon, the former DHHS director, who is being charged with 9 counts of manslaughter because of the Flint water crisis. The email contained an article published in the Washington Examiner titled “The Shameful Prosecution of Michigan’s Former Governor”. The following is the complete article.
NOVEMBER 07, 2021 12:00 AM
BY STEVEN D. GORDON AND MICHAEL I. KRAUSS
In Pakistan, the arrival of a new president is often accompanied by the criminal prosecution of his or her predecessor. But not here, you think? Let us introduce you to Michigan.
In January, the Wolverine State’s former governor, Rick Snyder, was indicted on two counts of willful neglect of duty in connection with the Flint drinking water debacle. No former governor in the state’s 184-year history has ever been charged with crimes related to their time in office. The prosecution of Snyder is a gross abuse of power that hasn’t received the scrutiny and condemnation it deserves.
Michigan Attorney General Dana Nessel, a Democrat, spearheaded this prosecution. Her prosecutors seek to convict the Republican ex-governor for not taking two actions they claim he was required by law to take during the Flint water crisis. First, Snyder allegedly failed to supervise subordinate officials closely enough. Second, he declined to invoke the state’s Emergency Management Act. Anyone can (and everyone does) second-guess politicians, but according to the prosecutors, these two “failures” amount to crimes.
The charges are astonishing. We hold elected officials accountable through elections. We don’t prosecute and jail them because we disagree with the way they performed their duties. Common law crimes (bribery, extortion, embezzlement, etc.) should rightly result in prosecution. But discretionary nonfeasance and allegedly poor performance are matters left to the sound judgment of voters at the ballot box.
Federal and state law doctrines of official immunity soundly recognize that public officials must perform discretionary functions free from the threat of personal liability. Indeed, the doctrine of separation of powers itself is inimical to judicial second-guessing of executive policy decisions. If officials can be held criminally liable for policy decisions, often tough ones, wise people will be deterred from serving in public office, or alternatively, they might make wasteful CYA expenditures of public funds. We want officials to focus on the public good. We don’t want them to worry about later having to defend each decision before a judge and jury in a county that may have voted for their opponent.
True, Michigan, like other states, does hold officials criminally responsible for intentional failure to take ministerial actions, which involve no discretion. For example, a deputy sheriff was convicted for deliberately not reporting an assault against a prisoner, as was required by law — the prisoner was subsequently beaten and raped by the same fellow inmate. But there are very few ministerial duties imposed on elected officials, especially senior officers. Almost all their actions involve discretion and are outside the reach of criminal law.
Neither of Snyder’s alleged offenses involved a ministerial duty. Michigan’s Constitution provides that the “governor shall have power and it shall be his duty to inquire into the condition and administration of any public office and the acts of any public officer.” That broad grant of supervisory authority doesn’t require the governor to take any particular action. Similarly, the state’s Emergency Management Act permits, but does not require, the governor to declare a state of disaster/emergency under certain conditions. Whether and how the governor exercises these grants of authority are judgment calls, the wisdom of which is a matter for voters alone.
Were we to permit criminal prosecutions of public officials based on decisions made while in office, where would the merry-go-round stop? Should former New York Gov. Andrew Cuomo be indicted for requiring nursing homes to accept COVID-19 infected? Should President Joe Biden be criminally charged for allegedly botching the withdrawal from Afghanistan? Indeed, should current Michigan Gov. Gretchen Whitmer, a Democrat, be prosecuted for her inaction during the current water crisis in the city of Benton Harbor ?
It is supremely ironic that Nessel recently tweeted , “It’s hard to believe that the democracy that we know and love has quickly deteriorated to the point where a political opponent will threaten to prosecute you, and anyone like you, for not supporting the candidate of their choice, but here we are.” Let Nessel practice what she preaches and instruct her minions to drop the disgraceful charges against Snyder.
Steven Gordon is a partner at Holland & Knight LLP. Michael Krauss is a professor emeritus at the Antonin Scalia Law School of George Mason University.
Nick Lyon, Governor Snyder and others should not have criminal charges filed against them. The case against them has no business in our criminal courts. The State has already settled this case in civil court for $640 million dollars. In the civil settlement AG Nessel’s own legal team indicated in the court documents there was no wrongdoing by Nick Lyon.
Stay safe. Wash your hands regularly. Schedule your vaccine and booster. Wear your mask. Social distance.
Orchid of the Day: Eastern Michigan University football team whose 7-3 record which is its best start since the 1989 season.
Onion of the Day: A 56-year-old Petoskey man who was arrested over the weekend for allegedly attacking another man with a machete following an argument.
Quote of the Day: “The film doesn’t lie, you know,” Michigan football coach Jim Harbaugh after the B1G head of officiating informed Harbaugh that the officials made a mistake on the call in which they reversed a touchdown by Michigan’s Aiden Hutchinson.
Tom, Lol Regarding your quote of the day. Maybe the guy should stop whining and instead work on his defense to prevent a guy from scoring five touchdowns.
Ron,
Harbaugh leaves a lot to be desired. His ability to adjust after halftime is sad.