Summary of Response to Miller & Chevalier’s February 28, 2024 Report

March 24, 2024

The Miller Law Firm, P.C.

This is a summary of the Response to Miller & Chevalier’s February 28, 2024 Report
prepared by The Miller Law Firm, P.C. (“Miller Law”), dated March 22, 2024, on behalf of Rema
Vassar, Ph.D., a member of the Michigan State University (“MSU”) Board of Trustees. This
Summary has also been prepared by Miller Law and it constitutes the opinion of Miller Law based
on the Response.

Overview

Miller & Chevalier’s investigation concluded that most of the allegations made against Dr.
Vassar, including those by Trustee Brianna Scott in her public letter dated October 20, 2023, were
not supported or were otherwise unfounded.

⁕ Dr. Vassar improperly released the Quinn Emanuel report: UNFOUNDED

⁕ Dr. Vassar exerted undue influence on the final SRMC findings: UNFOUNDED
⁕ Dr. Vassar improperly appeared in a congratulatory advertisement for her Crain’s Detroit
Notable Leader in Higher Education award: UNFOUNDED
⁕ Dr. Vassar inappropriately met with Lansing public officials: UNFOUNDED
⁕ Dr. Vassar bullied Interim President Woodruff: UNFOUNDED
⁕ Dr. Vassar threatened other Trustees: UNFOUNDED
⁕ Dr. Vassar improperly authorized the use of MSU trademarks: UNFOUNDED
⁕ Dr. Vassar leaked the names of candidates for the position of MSU President: UNFOUNDED
⁕ Dr. Vassar’s role as a Professor at Wayne State University creates a conflict of interest with
her role as MSU Trustee: UNFOUNDED
⁕ Dr. Vassar publicly leaked the name of Mel Tucker’s accuser (a charge debunked by the prior
report of the Jones Day law firm, cited by Miller & Chevalier in its Report): UNFOUNDED
Moreover, the investigation did not find any personal benefit, actual conflict of interest, or
harm to the University from any of Dr. Vassar’s actions.

Significantly, the investigation never inquired regarding the substantive effects of Dr.
Vassar’s actions. For example, the Report never assessed the merits of releasing the remaining
Nassar documents, and it failed to mention that the Board of Trustees voted unanimously in late
2023 to waive attorney/client privilege and release them. The action, advocated for many months
by Dr. Vassar, was hailed by the Michigan Attorney General as “a step in the right direction.”
 General Deficiencies with the Investigation and Report

The Investigation Was Not Independent

• Despite MSU and Miller & Chevalier’s repeated reference to its investigation as
“independent,” the law firm was “retained” by MSU’s Office of Audit, Risk and
Compliance (“OARC”), OARC determined the scope of the investigation, and OARC
“instructed” the firm regarding the conduct of its investigation. (Report at 1) Miller &
Chevalier was also paid close to a million dollars by its client for the Report. (“What’s Next
for MSU?” Lansing State Journal, 3/5/24)

• Miller & Chevalier could not have acted independently because the firm’s attorneys are
subject to the Washington, D.C. Rules of Professional Conduct requiring them to advocate
for, vindicate, and avoid harm to, MSU. (Rule 1.3 and Comment 1 to Rules of Professional
Conduct) These professional obligations to MSU necessarily precluded an independent
inquiry by Miller & Chevalier.

• The assertion of the attorney/client privilege by Miller & Chevalier with regard to its
investigation records, including its notes of interviews with Dr. Vassar and others,
additionally establishes that it was acting for its client, MSU, and not independently. MSU
has improperly asserted the attorney/client privilege to keep Miller & Chevalier’s
investigation materials secret while the Board of Trustees relied on the Report in taking
corrective action against Trustees, violating the prohibition on using the privilege as both
a shield and a sword. MSU and Miller & Chevalier cannot have it both ways.

• The Report is unsigned. No individuals, not even the attorneys who conducted the
investigation, have taken any personal ownership or responsibility for their product. Given
the Report’s heavy reliance on anonymous sources and secret records, the reticence of the
Miller & Chevalier’s attorneys should come as no surprise.

The Scope of the Investigation Was a Moving Target

• Miller & Chevalier admits that the scope of its investigation was altered at the instruction
of its client, OARC, to include not only allegations by Dr. Vassar in response to Trustee
Brianna Scott’s letter, but also dozens of other allegations that it has not disclosed, and
which it apparently has no intention of ever disclosing. (Report at 2: “Miller & Chevalier’s
investigation considered over fifty separate allegations.”) and excluded “additional
allegations, [raised] during interviews or in writing, [from] other current Trustees, one or
more former Trustees, administrators, and members of the MSU community.” (Report at
2, n.4)

• When counsel for Dr. Vassar asked Miller & Chevalier to define the scope of its
representation prior to her first interview, the firm did not disclose some of the subjects of
its investigation, or that the scope of the investigation could and would be expanded over
the following weeks.

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• Dr. Vassar was kept in the dark regarding the investigation’s scope even during the
interviews, and she learned of some allegations for the first time by reading the Report.

The Investigation Did Not Provide Due Process

• Despite written requests from Dr. Vassar’s counsel, Miller & Chevalier refused to provide
Dr. Vassar with any advance notice of the subject matter of any of her interviews. She was
thus unable to prepare, including by reviewing documents such as her emails. Instead, the
firm used a “gotcha” technique, confronting Dr. Vassar with unfamiliar topics and
allegations and challenging her to respond on the spot.

• Consistent with that approach, Miller & Chevalier has refused to disclose the documents
and other materials it referenced in questioning Dr. Vassar or the materials it relied upon in
reaching its conclusions.

• Miller & Chevalier also refused to disclose the identities of the individuals making
allegations about Dr. Vassar, including those attributing specific statements to her. (Report
at 5) As a result, there is no way to verify the truthfulness of their accounts. Miller &
Chevalier apparently intends that their identities and the veracity of their statements will
remain unknown forever.

• Miller & Chevalier relied extensively on secretly recorded conversations in making its
conclusions (see, e.g., Report at 38-40) without disclosing them or considering whether
such one-way recordings might violate Michigan’s anti-eavesdropping statute and/or MSU
ethical guidelines, including the Spartan Code of Honor Academic Pledge.

• Miller & Chevalier’s investigation was shrouded in still more secrecy. Investigators
requested that Dr. Vassar produce her personal cellular telephone for forensic examination,
but the firm refused to disclose the scope of its proposed review, the search terms that
would be employed, or even the general topics it intended to explore. Despite Dr. Vassar’s
offer to cooperate in developing search terms to protect unrelated private communications
and the identities and communications of students and survivors, Miller & Chevalier
refused. Incredibly, the firm then complained in its Report that Dr. Vassar’s failure to turn
over her cellular telephone may have impeded its investigation. See, e.g., Report at 7-8.

• Miller & Chevalier specified from the outset that there would be no recording or transcript
of Dr. Vassar’s interviews. It also specified that all of its attorneys’ notes made during the
interviews would remain confidential. As will be discussed later, the result is a litany of
inaccurate representations and mischaracterizations regarding Dr. Vassar’s statements
including the misattribution of alleged statements and false accusations of dishonesty. To
the extent Miller & Chevalier’s factual findings, analysis, and/or recommendations rely
upon these errors, they are fundamentally flawed and cannot be credited.

• MSU itself violated due process when its General Counsel threatened to terminate the
University’s commitment to indemnify her for the cost of her legal representation only
hours after the Report was issued. This attempt was improper given that only the Board of

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 Trustees could make such a decision, and because it was designed to prevent Dr. Vassar
from responding to the Report. It was also a failure: Miller Law intends to continue
representing Dr. Vassar regardless of future, similar efforts.

The Investigation Was Incomplete

• Only some of the allegations made by Dr. Vassar in response to Trustee Scott’s letter are
cited as having been addressed. (Report at 1, n.1) Miller & Chevalier also admits that it
failed to investigate “additional allegations, during interviews or in writing, [from] other
current Trustees, one or more former Trustees, administrators, and members of the MSU
community.” (Report at 2, n.4)

• The investigation ignored the determination by Dr. Vassar’s counsel that a review of the
copy of Trustee Scott’s letter provided revealed that the metadata showing the author
appeared to be missing. If the metadata was deleted, there could be no motive for such an
action other than to keep the letter’s true author (or authors) a secret. The origin of the very
allegations that led to the investigation remains in question.

• The investigation also never addressed the motive behind Trustee Scott’s public screed.
Notwithstanding repeated speculation regarding the possible motives of Dr. Vassar and
other Trustees, reflected in the Report, Miller & Chevalier seemed noticeably incurious
about Trustee Scott. This omission is particularly apparent when measured against the
myriad references in the Report to fears of “retaliation.” The fact that Trustee Scott’s
allegations could be considered retaliation against Dr. Vassar seems never to have occurred
to the investigators.

• Despite its extensive discussion of alleged retaliation by Trustees, the Report ignored
charges of retaliation during the tenure of Trustee Diane Byrum as Board Chair, detailed
most recently in a letter to MSU alumni from POSSE, a parents group supporting survivors
of sexual abuse. Miller & Chevalier also demonstrated indifference to the allegations of
impropriety against Trustee Scott based on her business association with former Trustee
Joel Ferguson, citing recollections that were “not entirely clear” and the final nature of a
prior General Counsel opinion as excuses for not thoroughly investigating the charges.
(Report at 51-52)

• Miller & Chevalier also neglected to speak with individuals who it was made aware could
have relevant knowledge about events in question, including the Executive Director of
POSSE and Alec McAree, a member of the MSU Foundation Board, despite his
acknowledged involvement in the Gupta settlement process. (Report at 10, n. 40) Mr.
McAree’s recollection of events is at significant odds with what the firm has set out in the
Report.

• Other individuals with knowledge were apparently not interviewed, including “Donor A,”
who was not contacted despite repeated inferences by Miller & Chevalier that he was
attempting to improperly influence one or more Trustees and decisions of the Board of
Trustees. See, e.g., Report at 31-32, 33-35. Neither Dr. Gupta nor his counsel were

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 interviewed about Dr. Vassar’s involvement in negotiations to settle his claims against
MSU. (Report at 10-15)

• The firm’s investigators also omitted interviewing a student whose texts were provided to
them without her knowledge. The student was eager to provide essential information
regarding her communications, with she believes were taken out of context in the Report.

The Report Excused Similar Actions By Other Trustees

• The investigation applied undefined and varying standards to the conduct of different
Trustees. For example, despite its finding that Trustee Brianna Scott had intentionally
disclosed confidential and privileged attorney/client communications in her public letter
attacking Dr. Vassar, Miller & Chevalier’s only recommended corrective action was “no
more than censure.” (Report at 61) For Dr. Vassar’s much less serious, and admittedly
unintentional, “violations,” by contrast, investigators recommended “referral to the
Governor for review and consideration pursuant to MCL 168.293.” (Report at 60) And the
firm did not recommend any corrective action against Trustee Scott for making false and
defamatory charges against Dr. Vassar even when they were found to be groundless. This
is despite the provision in the Trustees Code of Ethics and Conduct that “[f]alse reports of
violations of this Code of Ethics and Conduct should not be made for the purpose of
discrediting or otherwise harming the reputation of an individual.”

• The Report lets other Trustees off the hook while simultaneously concluding that Dr. Vassar
behaved improperly for acting the same way. For example, Miller & Chevalier’s
“Analysis” of the Gupta allegation includes a discussion regarding efforts by “the
Board…to insert itself in the negotiations themselves.” (Report at 14) Yet there is no
mention of any violations of rules by the Board, or any recommended corrective action.

• The Report attacks Dr. Vassar for failing to accurately recall events from many months in
the past while excusing other Trustees. The Report found that Trustee Kelly’s statement
that he had no communications with outside counsel during a specific period despite email
evidence to the contrary was not an issue. Instead, the Report rejected any finding of
dishonesty, noting: “During his interview, Trustee Kelly had to refresh his recollection of
the events surrounding the negotiations on a few occasions.” (Report at 12, n.44) This
stands in sharp contrast to the Report’s conclusion that Dr. Vassar’s “wavering recollection”
of particular communications about the Gupta settlement “render[ed] her statements
unreliable.” (Report at 11, 13) This is another example of Miller & Cavalier’s unfair
treatment of Dr. Vassar and the firm’s propensity to jump to the worst possible conclusion
regarding her statements and actions.

The Report’s Findings of Inappropriate Actions By Dr. Vassar Are Flawed

The instances in which the investigation determined that Dr. Vassar acted improperly are
based on faulty fact finding and unsound analysis. It is impossible to address those matters
adequately in summary format. Accordingly, they are addressed in detail in the Response.

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 Miller & Chevalier made particularly noticeable errors in determining that Dr. Vassar
improperly inserted herself into settlement negotiations regarding the Gupta matter and that she
violated policies by accepting a private jet flight from an MSU donor. Had the firm spoken with
Gupta and his attorney, it would have learned that Dr. Vassar played no substantive role in the
settlement negotiations. Similarly, Miller & Chevalier’s conclusions regarding the plane flight are
based on an inaccurate timeline that misrepresents the events.
The Report’s Recommendations Are Unsupported
• The Trustees’ Code of Ethics references the requirement of an “appropriate investigation”
followed by “recommendations for corrective action “with regard to confirmed violations.”
But the Report never delineates which of Dr. Vassar’s alleged violations purportedly
warrant the corrective action recommended, leaving undetermined whether the alleged
violations collectively warrant a referral and/or review, or if not, which of them justify such
action.

• Nothing in the Report indicates that Miller & Chevalier had the expertise to make
recommendations for corrective action. (Report, 1-6, 60-63) Given that the firm was
retained by OARC in late 2023 and its Report was issued on February 28, 2024, the firm
apparently had no prior knowledge or experience with MSU, its Board of Trustees, or the
relevant policies and guidelines. There is thus no reason to believe that the firm had any
particular proficiency regarding corrective action or that its recommendations should be
credited, let alone relied upon as the basis for actions by the Board of Trustees.

• It is indicative that the majority of the Report’s recommendations were directed to the
Board of Trustees as a body, rather than to Dr. Vassar or other Trustees. (Report at 61-63)
Although Dr. Vassar has advocated Board governance reform for some time, and she was
initially encouraged by these recommendations, her firsthand familiarity with Miller &
Chevalier’s methods has removed all confidence regarding its ability to advise the Board.

• Although the Report recommends that the Board of Trustees should impose corrective
action against Dr. Vassar in the form of “referral to the Governor for review and
consideration pursuant to MCL 168.293,” it never addresses, let alone establishes, whether
her alleged violations could support action under the statute.

The Board of Trustees’ Rush to Judgment Was Unwarranted

• Just four days after the Report was issued, the Board of Trustees held an emergency
meeting at 10:30 p.m. on Sunday, March 3, just hours before a new president took office,
to consider corrective actions based on this Report’s findings. The Board accepted Miller
& Chevalier’s work as conclusive, despite the tortured “analysis” and deliberate disregard
of an inconvenient truth: the responsibilities of elected officials to perform their duties, and
their ability to do so, are governed by the Constitution, not by the Board of Trustees. The
Board did not conduct an evaluation of the Report, and its unwarranted rush to judgment
prevented anyone else from doing so before it acted.

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• Nevertheless, the Board departed from the Report’s recommendations and voted to censure
Dr. Vassar and Trustees Dennis Denno and Brianna Scott: the Report did not recommend
censure for the first two. Instead, Miller & Chevalier recommended that Dr. Vassar and
Trustee Denno should be referred to the Governor for “review and consideration” under
MCL 168.293. (Report at 60)

• While the Board did not specify what actions it would take pursuant to the censures, an
MSU spokesperson told the media that Dr. Vassar could still serve on Board committees,
but not chair them, and would be allowed to vote at Board meetings. Id. Notwithstanding
those statements, Dr. Vassar was later informed by the Board that she and Trustee Denno
were barred from serving on any Board Committees through 2024.

• Trustee Scott’s censure involved no consequences.

Final Notes

• In a public statement on March 6, 2024, Dr. Vassar stated “I was elected to serve. I remain
strongly committed to moving forward to improve the performance of the Board of
Trustees and my own performance in the best interests of MSU and the State of Michigan.”

• Both Trustee Scott’s public letter and Miller & Chevalier’s investigation were conspicuous
overreactions involving the expenditure of countless hours, and significant resources on a
Report that is deeply flawed and unnecessarily divisive. It has also caused substantial harm
to Dr. Vassar’s reputation without justification.