Complaint: Lucido's previous attacks on Whitmer make impartial investigation impossible

A Michigan panel must review whether Macomb County Prosecutor Peter Lucido repeatedly blaming Gov. Gretchen Whitmer for killing thousands of nursing home residents makes it impossible for him to carry out a fair and impartial investigation into state COVID-19 nursing home policies, according to a detailed complaint filed Monday by a trio of Democratically aligned attorneys.

The complaint asks the Michigan Attorney Grievance Commission to decide whether Lucido's inflammatory statements as a state senator and prosecutor are violations of state and local ethics rules and should therefore warrant a recusal from any investigations involving the governor.

"As a legislator and candidate for county prosecutor, Mr. Lucido went on the record saying, without evidence, that Governor Whitmer had 'cold-blooded killed' nursing home residents and strenuously suggested he would prosecute her," the complaint states, referencing a June 19 interview Lucido did with journalist Charlie LeDuff.

"Now as elected prosecutor he continues to insinuate and allege that Governor Whitmer is criminally responsible for nursing home deaths, to the public and in the press, despite Michigan rules barring attorneys from making public statements that could prejudice adjudicative proceedings."

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The attorneys who filed the complaint are:

Richard Painter, a former top ethics attorney in the administration of President George W. Bush. He is now a professor at the University of Minnesota, a Democrat and a frequent critic of former President Donald Trump. Claire Finkelstein, a well-known law professor at the University of Pennsylvania. Larry Dubin, a long-time law professor at the University of Detroit Mercy. He also previously served as chairman of the Michigan Attorney Grievance Commission.

Painter told the Free Press he believes Lucido should recuse himself from any investigation of the governor, given the number of times he has publicly accused Whitmer of crimes related to nursing homes.

He also said he has no connection with Whitmer, has never met the governor or anyone who works for her.

"Keeping prosecutions independent of partisan politics is absolutely critical," Painter said.

Lucido previously served as a Republican state senator and spoke out frequently against the governor. Now as Macomb County prosecutor, he has asked local residents to submit information to law enforcement about the deaths of their loved ones at nursing homes.

In the 17-page complaint, the attorneys outline a series of state and local rules for attorneys that Lucido may have violated. That includes having a conflict of interest and making statements that could prejudice an eventual prosecution.

They point to at least eight separate occasions in the last year where Lucido — either as a senator or as prosecutor — has implied or said Whitmer is responsible for COVID-19 deaths at nursing homes.

That includes the statement given in an interview with LeDuff, where Lucido said, "what our governor has done is literally cold-blooded killed the most injured parties that are out there. The ones that have compromised immune systems — cold-blooded.”

"His words and actions suggest that he seeks to vindicate his prior claims, which would be counter to the black letter and spirit of rules of professional conduct that forbid attorneys from client representations where they have a conflict of interest, and that hold prosecutors to even higher standards."

More: Michigan AG Dana Nessel won't investigate Gov. Whitmer's nursing home policies

More: What we know about the impact of Whitmer’s nursing home policies

A spokeswoman for Lucido did not immediately respond to a request for comment. Last week on Twitter, Lucido defended his actions on the nursing home investigation. In the same statement, he also denied recent allegations by Ingham County Circuit Court Judge Lisa McCormick, who recently told Michigan Advance that Lucido inappropriately touched her during a 2019 legislative meeting.

In 2020, an Advance reporter, state Sen. Mallory McMorrow, D-Royal Oak, and a lobbyist accused Lucido of sexual harassment. Although Lucido denied the allegations, an internal Senate investigation found the senator's "conduct demonstrates an unfortunate pattern of behavior."

As a senator, Lucido and other state Republicans argued an order issued by the governor forced long-term care facilities to take in COVID-19 positive residents who were discharged from a hospital.

Lucido, other lawmakers and the Michigan Republican Party have repeatedly accused the governor of killing nursing home residents. Last week, Senate Republicans voted on a measure that would provide $250,000 grants to local prosecutors who pledge to investigate any correlation between state COVID-19 policies and nursing home deaths.

However, at no point has anyone presented evidence of a single case where an otherwise healthy resident died after contracting COVID-19 from another patient a nursing home was forced to take. Data collected by the state and nursing homes at the start of the pandemic was haphazard, though. And critics, including Lucido and LeDuff, argue the state is withholding key records and data that may provide more details about nursing home deaths.

Despite the language in the governor's executive order, Whitmer's office argues no nursing homes were ever forced to take COVID-19 patients. Melissa Samuel, president of the Health Care Association of Michigan, a trade association that represents Michigan’s long-term health care providers, recently told the Free Press, "we were never kind of mandated or forced" to take in COVID-19 positive patients.

And in the fall, Lucido sponsored a bill eventually enacted into law that allowed nursing homes to continue taking in COVID-19 positive patients while beefing up staffing and infection control standards.

More: Whitmer: Nursing homes can reopen to visitors under new public health order

More: Hospitals get younger COVID-19 patients; new cases, deaths of nursing home residents drop

During a recent press conference, Lucido said, "at this moment, no one, not any one, can establish beyond a reasonable doubt cause and effect concerning the many legal issues before me and continuously being presented to me." But he also reiterated previous comments about possible charges the governor could face as a result of the investigation.

"A reasonable observer may find it hard to distinguish between Mr. Lucido’s present conduct as an elected prosecutor and his prior statements as a political candidate and as a state senator on this matter, raising the concern that he may be subordinating the county’s interests to his own partisan political interests," the complaint states.

"This is not a case of a prosecutor promising to be 'tough on crime' and then enforcing laws aggressively in office; Mr. Lucido promised to be tough on one particular alleged crime and one particular alleged defendant. His political history is bound up in those allegations, potentially implicating relevant ethics rules."

Generally, any review from the commission would remain private unless it is decided someone committed professional misconduct. In that case, the commission would file a formal complaint with the Michigan Attorney Discipline Board.

Contact Dave Boucher at [email protected] or 313-938-4591. Follow him on Twitter @Dave_Boucher1.

This article originally appeared on Detroit Free Press: Complaint: Lucido's previous attacks on Whitmer make impartial investigation impossible

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