First Amendment at Risk in Michigan: When Protest Becomes a Prosecutorial Target

The Recusal Request and Its Foundation

Recusal in criminal proceedings is not routine. When defense attorneys argue that a prosecutor must be removed from a case, they are alleging that something external to the merits of the charges is influencing how prosecutorial discretion is being exercised — that the prosecutor cannot be impartial. In this context, the recusal argument does not rely on speculation. It relies on Nessel’s own prior conduct.

In a separate matter involving Hamtramck City Council members — a case involving Arab and Muslim elected officials — Nessel’s office had itself sought a special prosecutor on the grounds that Nessel’s perceived bias against Arab and Muslim individuals created a conflict. Defense attorneys in the University of Michigan protest cases argue the same logic applies: if the AG’s office recognized that concern as sufficient to warrant a special prosecutor in one context involving Arab and Muslim individuals, the same concern cannot be dismissed in another. The argument is grounded in Nessel’s own statements and her office’s own prior conduct, making it structurally difficult to rebut as mere advocacy.

A judge was considering whether to act on that argument as of late April 2025, according to Michigan Public Radio.

Who Asked Whom: The Recruitment Question

The standard model of criminal prosecution begins with law enforcement identifying conduct that warrants charges and bringing them independently. The reported sequence in the University of Michigan protest cases departs from that model in a way that the documented record makes difficult to dismiss.

The Guardian’s reporting, based on three people with direct knowledge of the decision, documented that the University of Michigan’s Board of Regents specifically sought out Nessel’s office to prosecute protest participants — bypassing local prosecutors who had reviewed the same conduct and declined to file. The reported reason: the Regents believed Nessel was more likely to file charges. This is not the standard accountability structure for prosecutorial decision-making. It is an institution with a stake in deterring protest activity selecting the prosecutor it believes will act on that preference.

The financial dimension compounds this. The Guardian’s reporting also documented political and financial ties between Nessel and the University of Michigan’s Board of Regents. A prosecutor with documented financial and political relationships with the institution requesting prosecution faces a structural question about independence that the appearance of impartiality cannot resolve. The question is not whether those relationships prove improper motive. The question is whether a prosecutor in that position can credibly claim the independent judgment that legitimate prosecution requires.

The Pattern of Dismissals

Charges against pro-Palestinian protesters at Wayne State University were dismissed by a Detroit court. A significant number of charges against protest participants elsewhere in Michigan have also been dismissed or declined. Critics argue this pattern reflects not procedural defects in specific cases but the substantive weakness of charges brought against constitutionally protected conduct — that the cases are failing because the underlying activity was protected expression, not because of technicalities.

If that assessment is correct, the accountability question is whether the prosecutions were brought to achieve convictions or to impose the costs and disruptions of criminal proceedings on protest participants as a deterrent. Prosecution as deterrence is not a legitimate exercise of prosecutorial discretion. It is the use of state authority to suppress expression the Constitution protects. The documented pattern of outcomes does not prove that this was the intent — but it establishes sufficient factual basis for the question to be examined rather than assumed away.

The ongoing debate underscores the delicate balance between maintaining public order and protecting constitutional rights. As the legal proceedings continue — including the pending recusal question — the implications for free speech, prosecutorial independence, and the relationship between institutional power and political expression remain central concerns for anyone watching Michigan’s accountability landscape.