When the University of Michigan governing board this year asked the state’s attorney general to bring charges against campus Gaza protesters, they tapped a political ally with whom some board members have extensive personal, financial or political connections, a Guardian investigation finds.
Frustrated by local prosecutors’ unwillingness to crack down on most of the students arrested at the height of the pro-Palestinian encampments last spring, the regents executed a highly unusual move in recruiting the Michigan attorney general, Dana Nessel, because she was more likely to file charges, three people with direct knowledge of the decision tell the Guardian.
The revelations raise new questions about potential conflicts of interest. Six of eight regents contributed more than $33,000 combined to Nessel’s campaigns, her office hired a regent’s law firm to handle major state cases, the same regent co-chaired her 2018 campaign, and she has personal relationships with some regents.
Meanwhile, Nessel received significant campaign donations from pro-Israel state politicians, organizations and university donors who over the last year have vocally criticized Gaza protests, records show.
A Guardian analysis finds Nessel’s office has so far charged about 85% of the protesters who were arrested or for whom arrest warrants were requested last school year. By comparison, Washtenaw county’s office only charged 10% of arrests, while the Wayne county prosecutor Kym Worthy dropped all five Gaza protest cases forwarded to her office by Wayne State University police in Detroit, data provided by protesters’ attorneys and prosecutors shows.
The county offices are staffed by local prosecutors who typically handle all criminal charges that occur in that county. By choosing to bypass a local prosecutor in favor of a politically allied attorney general – a statewide position that oversees the local offices – the university has “essentially forum shopped”, said Chesa Boudin, a former San Francisco prosecutor now director of the University of California, Berkeley’s criminal law and justice center.
Requesting Nessel take the case from the local prosecutors was legal, but generates distrust of the justice process, Boudin said.
“While it might not be a clear, bright line ethics violation, it creates the appearance of impropriety because it causes different outcomes for [the regents] based on their power and relationship with the attorney general,” Boudin said. Other victims of alleged crimes do not get to choose a prosecutor as the politically connected regents did, he added.
In a statement, Nessel’s office said it made the offer to take the protester cases from the Washtenaw county prosecutor because the alleged crimes – including spray painting on regents homes or businesses – occurred in multiple jurisdictions.
The attorney general receives campaign donations from regents across most, if not all, state universities, so the suggestion that contributions “would influence our investigative efforts, prosecutorial review, and charging decisions is baseless and disrespectful”, the statement said.
Nessel’s office also questioned the accuracy of the Guardian’s charge rate analysis, claiming it reviewed 40 cases. However, the Guardian’s analysis looked at arrests and arrest warrant requests, not investigations. The office has also said more charges are likely to come.
Nessel steps in
The University of Michigan’s alleged frustration with local prosecutors stems from a November campus sit-in at which Ann Arbor police arrested a group of 40 protesters. The Washtenaw county prosecutor Eli Savit, a progressive prosecutor who is also Jewish, announced in May that his office would dismiss 36 cases and recommend four for diversion programs where they faced a light punishment.
That incensed U-M’s pro-Israel regents and police department because they wanted swifter, tougher charges, according to sources with knowledge of the process, who spoke with the Guardian on the condition of anonymity. They then asked Nessel to take the cases and university police sent warrant requests to her office.
Multiple legal observers said it is unprecedented for a state attorney general to take protest cases instead of local prosecutors. In September, ACLU Michigan wrote in a statement that it was “especially concerned” the state’s highest law enforcement office was deployed to issue only minor charges, such as misdemeanor trespassing, for some protesters.
The charges Nessel filed so far against U-M protesters stemmed from April and May incidents during protests and when campus police cleared an encampment. The university and its police department can send warrant requests to either the local prosecutors or ask the attorney general to handle the cases.
Nessel ignited a controversy in late September when she accused US representative Rashida Tlaib of antisemitism for questioning whether there was “possible bias” at the attorney general’s office because it got involved with Gaza protest cases, but not those protesting on other issues. Tlaib never mentioned Nessel is Jewish in her comments.
CNN, Israeli media, Congress members, the Anti-Defamation League, and others used the controversy to levy antisemitism accusations against Tlaib.
Spokespeople for Tlaib and Savit’s office declined to comment for this story. U-M denied wrongdoing, and the university and regent Jordan Acker said it was “not true” that the university asked Nessel to investigate, but rather that Nessel offered to take the cases. He then said the attorney general’s unprecedented involvement in a protest case was justified. “I would say I don’t think we have seen anything like this before either, where you have a coordinated, foreign-funded student protest that is engaging in violent activity,” Acker said. (There is no evidence the encampment received any foreign funding, and students blame reports of any violence that took place when the encampment was cleared on police.)
The U-M lecturer Alexa Eisenberg, who has been a part of Jewish Voice For Peace Detroit and campus protests, viewed it differently: Nessel’s “personal and financial connections to the regents demonstrate a clear conflict of interest and imply that the charges are a politically motivated attack on the [protesters]”.
Connections to U-M regents, pro-Israel Democrats
All but two university regents have donated to Nessel’s campaign, with donations ranging from $13 to $16,800, including Pacs, records show.
Nessel in 2019 hired the regent and attorney Mark Bernstein’s family law firm to handle the state’s opioid lawsuits, and Bernstein co-chaired her 2018 campaign. The Bernstein family Pac gave $10,000 to Nessel, while Bernstein himself gave $6,800.
Nessel also received a $2,500 donation from Acker, a confrontational pro-Israel attorney who has claimed “antisemitism runs rampant” on campus, and is regularly critical of Gaza protesters.
In September, just days before Nessel announced the charges, he posted on Instagram a picture of himself with Nessel and the pro-Israel state representative Jeremy Moss, another outspoken critic of Gaza protests, at an event for the Michigan Jewish Democratic caucus with the caption “grateful for these two”.
Campaign donations have some “guardrails” in place that can keep influence in check, but personal and business relationships raise a more serious set of concerns, Boudin said.
“If your professional or family lives are deeply intertwined that can certainly add to the appearance of impropriety and can potentially rise to level of actual conflict,” he added.
Campaign donations from or relationships with a party involved in a case may not be illegal, but they create the appearance of bias, Boudin said.
“The justice system depends on public trust and when the public doesn’t trust the process or outcome, then justice suffers,” he added.
Nessel received $25,000 from the Michigan Jewish Democratic caucus, which was founded and is partially funded by state representative Noah Arbit, an outspoken pro-Israel politician, “good friend” of Nessel and frequent critic of pro-Palestinian advocates. He recently labeled student protesters “sick cowards”.
Meanwhile, a Democratic U-M donor and school of information board member who last year faced no consequences after allegedly verbally and physically assaulting Arab American students has, along with her husband who is a university donor, given $26,000 to Nessel.
Pro-Palestinian activists at the university said Nessel’s connections to the regents, pro-Israel groups, and “unprecedented” investigation point to “bias” and a broader coordinated effort to silence them.
“If you put all these things together it’s very clear what’s happening,” said a student leader who declined to use their name for fear of doxxing. “This is part of how the Democratic party has really gone out of their way to suppress any pro-Palestinian activism.”
Nessel’s office noted that she previously received endorsements and financial support from Arab American and Muslim groups, but these expressions of support came before Arab Americans broke in huge numbers with Democrats over Gaza policy, and some have been explicitly critical of Nessel’s involvement in the cases.
Acker questioned the Guardian’s motives in reporting on Nessel’s ties to pro-Israel individuals and groups, citing the absence of questions about the Michigan Jewish Democratic caucus’s donations to the Michigan governor, Gretchen Whitmer, as evidence.
“Why are you singling out the attorney general because she is Jewish?” Acker asked.
Whitmer, however, is not involved in the prosecutions.
‘It was surprising’
In its statement to the Guardian, Nessel’s office said its involvement in a local case is “hardly ‘legally unusual’”. It also said that most protesters were charged with felonies, suggesting a serious nature.
However, legal observers noted Michigan is the only state that does not have a misdemeanor obstructing and resisting police charge, so charges that would be misdemeanors elsewhere are felonies there.
Some legal observers say Nessel’s multi-jurisdiction claim is likely a pretext because crimes regularly occur in multiple jurisdictions and the AG’s office does not get involved. In such scenarios one police department would almost certainly handle the cases. Meanwhile, Nessel only filed charges for crimes on U-M’s Ann Arbor campus – not those that occurred in a different county.
Loren Khogali, director of the ACLU of Michigan, said that in other cases, Nessel’s office “tends to be deferential to local prosecutors who are accountable to their local communities”.
“The AG has formidable power, and to use that power to charge misdemeanors for students on campus who were engaged in protest … was surprising,” she said.
• This article was amended on 24 October 2024 to correct the spelling of Alexa Eisenberg’s name.
