Gov. Jennifer Granholm has designed the removal hearing she ordered for next week against Detroit Mayor Kwame Kilpatrick in a way that makes it difficult for Kilpatrick to survive in office, legal experts say.
“It’s a clear message to Kwame that he’s going to lose,” said Maurice Kelman, a retired Wayne State University law professor. “There’s no way she can exonerate him.”
Granholm’s decision, reached Tuesday, sets up a historic Sept. 3 hearing at the Cadillac Place Building in Detroit in which the mayor will have to convince the governor that his handling of police whistle-blower settlements did not amount to official misconduct.
Her decision to proceed also puts pressure on Kilpatrick to reach a plea deal quickly in his perjury and assault cases or risk losing what leverage he still holds with prosecutors: his willingness to leave office.
“The mayor has to understand with the hearing going forward, his biggest bargaining chip — his resignation — could disappear at any time, especially if the hearing is not going in his favor,” said Peter Henning, a Wayne State University law professor.
In rejecting the mayor’s efforts to stop the proceedings, Granholm said she would limit her inquiry to two questions:
• Did he authorize settlements of the police cases “in furtherance of his personal and private interests?”
• Did he “conceal from or fail to disclose to the” Detroit City “council information material to its review and approval of the settlements?”
Even without Kilpatrick’s testimony — his attorney said no decision has been made on whether he would testify — the council already has presented enough evidence to Granholm to affirmatively answer those questions, several lawyers said.
In Granholm’s signed order, dated Monday but released at 9:47 a.m. Tuesday, the governor rejected the arguments of Kilpatrick’s attorney to dismiss the hearing, or at least delay it until the mayor’s pending criminal cases are resolved.
Sharon McPhail, the mayor’s general counsel, said Tuesday she was “very disappointed” with Granholm’s decision and said Kilpatrick’s legal team is considering going to court in an effort to block the hearing.
In May, the City Council voted 5-4 to ask Granholm to remove Kilpatrick because of his false testimony at a police whistle-blower trial last summer and his later effort to settle that and another suit for $8.4 million without informing the council of a secret side deal to hide damaging text messages that would expose his trial lies — and those of his chief aide, Christine Beatty.
Granholm’s decision to hold the hearings was released as the governor attended a breakfast meeting of the Michigan delegation at the Democratic National Convention in Denver on Tuesday.
Granholm refused to take questions.
‘He’s going to lose’
Lawyers who have studied the law authorizing the governor to remove elected officials for misconduct said the two questions Granholm said would serve as the focus of the hearing put Kilpatrick in a jam.
While McPhail argued that the hearing — if it took place — should focus on Kilpatrick’s intent (Did he intend to mislead the council by not telling council members of the side deal?), Granholm opted instead to focus on what actions the mayor took or failed to take.
Larry Dubin, a University of Detroit Mercy law professor, said the hearing does not bode well for the mayor.
“There is sufficient documentary evidence to establish the existence and then concealment of text messages as a clear motivating factor by the mayor and city to settle the police officers’ case,” he said.
Henning, the Wayne State professor, said that he remains unsure how Granholm defines official misconduct.
“Even if he did conceal things, is that sufficient evidence for her to remove the mayor?” he asked.
Granholm’s order cites several court cases on the meaning of official misconduct.
It is established, she wrote, “when a public officer engages in activities in his official capacity for personal gain and conceals information about those activities.”
Granholm also shot down McPhail’s argument that the mayor’s due process would be violated if the removal hearing was held while the mayor’s criminal trial on perjury and other charges relating to the text scandal was pending.
“The two proceedings are inherently different in their nature and purpose,” Granholm wrote.
McPhail, who Monday urged Granholm not “to join the lynch mob,” said Tuesday the mayor’s legal team, while disappointed, will “present evidence that proves the mayor did not misuse public funds for personal gain and that there was no failure to appropriately inform the City Council about the facts of the court-ordered settlement.”
Bill Goodman, the council’s attorney, hailed the decision, calling it “a detailed, careful and very well-crafted opinion.”
City Councilman Kwame Kenyatta said city residents deserve resolution to the mayoral scandal that has consumed City Hall officials since the Free Press broke the text message story in January.
“The clock is ticking for the mayor,” Kenyatta said. “He has had plenty of opportunity to accept a deal” to resolve his criminal cases “or step down himself, but he had chosen not to do so, so now he’s put himself in the position where the sitting governor is poised to remove him from office.”
Councilwoman Barbara-Rose Collins, who voted against asking Granholm to remove Kilpatrick, said she would have liked to see the perjury case resolved first. “She must have thought it through carefully,” said Collins, who has asked Kilpatrick to resign. “I’m disappointed, but I can’t second-guess her.”
Detroit political consultant Adolph Mongo said it’s clear Granholm has given in to political pressure instead of allowing Kilpatrick his day in court.
“When the principals in the case can’t even testify because of legal obligations to the criminal proceedings, the system is flawed,” he said.
Granholm also announced that state administrative law judge Gregory Holiday will serve as a special administrative assistant — managing the hearing, administering oaths and keeping records.
Part of a plea deal?
In remarks Tuesday, McPhail denied the existence of any behind-the-scenes plea talks to resolve the mayor’s criminal problems. In fact, attorneys for the mayor and prosecutors have been talking for nearly a week, sources said.
Henning said he wouldn’t be surprised to see plea negotiations continue into next week and, possibly, simultaneously with the removal hearing.
Marvin Barnett, a Detroit criminal defense attorney, said he thinks the case will be settled before then. “The moment you go into negotiations, that’s a one-way street,” he said.