CINCINNATI (CN) — Despite providing deposition testimony in the leadup to the bellwether civil trial stemming from the Flint water crisis, former Republican Michigan Governor Rick Snyder argued Thursday before the Sixth Circuit he can invoke his Fifth Amendment rights at trial to avoid self-incrimination.
Snyder, who approved and oversaw the switch of Flint's water supply from Lake Huron to the Flint River in 2014, was charged by Democratic Attorney General Dan Nessel with two misdemeanor counts of willful neglect of duty in January 2021.
The now infamous alteration of the city's water supply poisoned thousands of Flint residents and spawned a multitude of civil lawsuits, many of which were part of a $626 million settlement with the state of Michigan first announced in August 2020.
Claims of professional negligence against Veolia North America LLC and Lockwood, Newman, and Andrews, the two engineering firms hired to provide consulting work during the supply switch, proceeded to trial earlier this year and are now in the hands of a Michigan jury.
Snyder was subpoenaed to testify at the trial, but filed a motion to quash after he was indicted by Nessel for his role in the crisis.
A federal judge denied the motion to quash and ruled that Snyder waived his Fifth Amendment right against self-incrimination when he decided to provide deposition testimony several months before criminal charges were filed against him.
Snyder was granted a request for an interlocutory appeal to the Sixth Circuit, but prior to Thursday's arguments, the Michigan Supreme Court dismissed the criminal charges after it found a judge lacked the authority to issue the indictment against the former governor.
In his brief to the Cincinnati-based appeals court, Snyder claimed U.S. District Judge Judith Levy, an Obama appointee, erred when she "mechanically concluded that a deposition and trial in the same case are the same proceeding, such that a waiver at the deposition carries over to trial."
Snyder claimed being forced to testify at trial would create a "perjury trap," given that many parties involved in the litigation have accused him of lying during his deposition and elsewhere.
The engineering firms disagreed and cited the Sixth Circuit's "longstanding assumption against blanket assertions of privilege" in their brief to the appeals court.
According to the brief, Snyder cannot avoid testifying altogether and must at least show up to court to invoke his Fifth Amendment rights on a question-by-question basis.
The case arrived at Thursday's hearing in a somewhat unique posture, given the dismissal of Snyder's criminal charges and the submission of the bellwether trial to a jury exactly one week ago, absent any testimony from the former governor.
Attorney Charles Quigg argued on behalf of Snyder and was asked by U.S. Circuit Judge Richard Griffin whether the case was mooted by the conclusion of the trial.
Quigg told Griffin, a George W. Bush appointee, the issues presented "are virtually certain to reappear" if the panel refused to issue a ruling.
Griffin moved to the merits of the case and told Quigg, "We have to determine whether discovery depositions are separate proceedings."
The attorney agreed and reiterated such depositions are entirely separate from the subsequent trial.
"The purpose of a discovery deposition is to figure out what the facts are," he said. "At trial, the purpose is quite different."
U.S. Circuit Judge Amul Thapar, an appointee of Donald Trump, asked what would happen if Snyder appeared at trial and was asked the same questions used in his deposition.
Quigg told the panel that was essentially what happened when his client refused to appear, as the trial court played Snyder's deposition for the jury.
Attorney Sarissa Montague argued on behalf of Richard Baird, a former adviser to the governor, and emphasized her client was not a criminal defendant at the time of his deposition.
Montague told the panel "innocent" changes in testimony from a deposition to trial could be pounced upon as perjury, which weighs in favor of allowing a blanket assertion of the Fifth Amendment at trial.
"These are real people, with real lives, and real consequences," she said.
Attorney Minh Nguyen-Dang argued on behalf of Veolia and was questioned about mootness by Thapar, who asked the attorney why his clients didn't seek a stay before the lower court.
"We didn't want to stay a trial that had already started," Nguyen-Dang said.
The attorney allowed for the possibility the case is moot, but pointed out he plans to subpoena Snyder and the other officials for the remaining trials and is "reasonably certain" the same series of events will play out and put him back in front of an appeals court panel.
Nguyen-Dang argued the application of the Fifth Amendment in a civil case requires "granular analysis" by the trial court, which was prepared to do so in this case until Snyder and the others refused to answer subpoenas.
Griffin interjected and told the attorney he considers discovery depositions entirely separate from a trial.
"Discovery is a different animal than a trial," the judge said.
"That reinforces why it was so important to have these defendants at trial," Nguyen-Dang responded.
"You don't want to give the Fifth Amendment as much strength [in a civil trial]," Griffin continued. "You want to water it down."
Attorney Sherman Wittie argued on behalf of Lockwood, Newman, and Andrews, and continued Griffin's analogy.
"That animal has gotten into our barnyard and is affecting the trial," he said. "[The defendants] need to invoke the Fifth Amendment on a question-by-question basis."
In his rebuttal, Quigg urged the panel not to rely on "wooden, formalistic rules" and overturn Levy's decision regarding his client's waiver of immunity.
No timetable has been set for the court's decision.
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