Updated September 10, 11:18 am: MSU President Samuel Stanley is declining a call from some Larry Nassar survivors to restart an independent investigation, after the Board of Trustees announced it was "pausing" that investigation on Friday.
"This is very much a decision the board has been working on," says MSU spokeswoman Emily Guerrant. "He [Stanley] is focused on the findings released last week [by the US Department of Education, Office of Civil Rights,]" Guerrant says. Intervening in a dispute between some survivors and trustees over the independent investigation is "not an action that is happening right now."
Stanley knew trustees and survivors were having "having multiple conversations and disagreements over the scope of McDermott's work," she says, referring to McDermott, Will & Emery, the firm chose in June to conduct the investigation.
One of those issues: some 6,000 documents MSU is withholding from the Michigan Attorney General's criminal investigation, under attorney-client privilege. Trustees say they have to keep those documents privileged in order to win ongoing lawsuits with the school's insurance providers, over whether MSU's policies cover the massive costs from the Nassar scandal.
But Nassar survivors like Rachael Denhollander, the first woman to publicly accuse Nassar, say any new investigation has to have "all the facts," including a review of the privileged documents. In a statement released Monday, Denhollander and two other survivors say they'd found a workaround: having a "special master" who could look at those documents and pass on pertinent information to the independent investigators. "MSU was explicitly advised that it could do this special master process to extract all factual information from its privileged documents without waiving privilege," the survivors said in their statement.
But MSU's Office of General Counsel advised the board that a special master process would not allow them to maintain attorney-client privilege, according to Guerrant. "[The General Counsel] told me yesterday that, while a special master was discussed, their advice to the board was, 'If you want to go down that road, you would not be able to maintain privilege.'"
Original post, from Monday, September 10: Finally, after three years, they thought they were getting answers. But today Rachael Denhollander and two other Larry Nassar survivors say they’re “deeply disappointed and disgusted” by some Michigan State University trustees’ decision to “pause” an independent investigation that had been in the works for 8 months.
“Put simply, it is a slap in the face,” Denhollander, Sarah Klein, and Sterling Riethman said in a statement released Monday.
They’re asking the school’s new president, Samuel Stanley, to reinstate the investigation and “to let us all know where you stand - hopefully it’s with the moral conviction to finally learn the truth about the culture that and individuals who allowed Larry Nassar’s sexual misconduct to go unabated for decades at MSU’s campus.”
MSU announced the new investigation in July, now says it’s unnecessary
Just three months ago, MSU announced it was hiring a Chicago-based firm, McDermott, Will & Emery to conduct a new investigation.
At the time, Denhollander said she was truly optimistic, because she and other survivors had been working with the board since January to define the scope and purpose of the investigation.
"The end product remains to be seen, and I think there’s good reason to be wary and on guard,” Denhollander told Michigan Radio in July. “But this investigation is radically different than anything MSU has done before...it’s truly independent. MSU has not done an independent review of everything that’s happened. And they’ve worked directly with survivors in selecting a firm… It’s exactly what we’ve been asking for, what I’ve been asking for, for the last three years.”
But then, on Friday, Trustee Chair Dianne Byrum announced a pause in that investigation, one day after the U.S. Department of Education’s Office of Civil Rights released a 62-page investigation into MSU’s mishandling of the Nassar case. The OCR fined MSU a record $4.5 million.
Given that report, the board was split, Byrum said, about whether another investigation was still necessary or would turn up new information.
But Denhollander disagrees with their decision.
“Trustee Byrum’s assertion that the OCR review was sufficient and there is nothing left to examine, is knowingly dishonest,” she says in her written statement. It “includes none of the facets the survivor committee identified as vital and foundational to reform at MSU.”
Survivors say they’re still looking for answers
The OCR is limited to investigating Title IX and Clery Act violations, and the Michigan Attorney General’s investigation is focused on criminal misconduct.
But the independent review would go further, Denhollander says. “This was to focus on both the facts and the culture at MSU… MSU’s deficiencies and failures in many instances were not criminal. They were cultural, structural, or individual.”
And Denhollander says it would involve a “special master” process, where an independent third party gets access to some 6,000 documents the school is withholding from the AG’s office under attorney client privilege.
A “methodical, hand-redaction process by qualified experts...would ensure that each fact contained in the 6,300 privileged documents was obtained and given to investigators and law enforcement, including all facts related to the Board and administration,” Denhollander, Klein and Riethman say in their statement.
Accusing some trustees of being “weak, deceitful”
The three survivors specifically call out Trustees Brianna Scott, Melanie Foster, and Joel Ferguson, as well as Byrum, alleging they’ve “continually demonstrated a complete lack of moral conviction to pursue the truth and ensure that what Larry did to hundreds of women and children never happens to anyone again on MSU’s campus.
“Moreover, Trustee Byrum’s weak, deceitful leadership and Trustee Brianna Scott’s complete lack of ethical integrity to do what is right is a complete betrayal of the promises and representations they have made in public to support survivors.”
Byrum and Scott refused to waive attorney-client privilege for the independent investigation, the survivors claim in their statement, and didn’t want the special master process, either. Scott was repeatedly “obstructing the independent investigation,” the three survivors allege, and “demanded all survivors sign a non-disclosure agreement with MSU,”as well as “documents reaffirming that we were not financially benefiting from participating in assisting with the investigation…”
Byrum did not respond to requests for comment.
But in a couple of lengthy emails, Scott says the three survivors are mischaracterizing the process and her own stance on the investigation.
Scott: we can't spend $1 million on investigation if "no one supports" it in the end
What Brianna Scott's wary of, she says, is spending a lot of money on an investigation, if the findings wouldn’t even be accepted by survivors as legitimate.
“I have a fiduciary responsibility to MSU in addition to the survivor community,” Scott says. “In good conscience, I cannot support wasting $1 million dollars or more on a report that no one supports in the end.”
And there was division and disagreement among survivors throughout this process. Nearly 50 survivors signed a written statement asking the board not to launch another investigation, but instead, to waive attorney-client privilege and fully cooperate with the AG’s ongoing criminal probe.
But Scott and several other trustees say maintaining attorney-client privilege is critical for MSU’s financial future, because the school is currently in litigation with its insurance providers over whether costs from the Nassar scandal are covered.
“...Our General Counsel and Outside Counsel did NOT advise the board that using a Special Master would be a feasible way to keep privilege," Scott said in an email Monday (punctuation and captializations are hers.) “We were advised of the complete opposite and with that knowledge EVERY [Board of Trustees] member just last week reiterated that they did not wish to waive privilege due to the continuing insurance litigation.”
“Finally, if the Survivors are willing to state unequivocally that in the event privilege cannot be maintained using a Special Master (or some other work around), that they would still SUPPORT the outcome Report from the Independent Investigator, then I would wholeheartedly support moving forward with it. However, I was informed by several that would not be acceptable.”
Scott says she understands why survivors don’t trust MSU’s previous administrators, and she still wants “an impartial, non-tainted firm to do the Independent Investigation, but, only if the Survivor Community will accept the final results…
“It just doesn't make sense to run into the same problem with the Independent Investigation if privilege not being waived is a non negotiable to the survivor community (and believe me I completely understand why they wish for it to be waived).”
As of Monday afternoon, MSU President Stanley had not issued a statement about whether he would make an executive decision to resume the independent investigation.