Missouri AG Clears Governor in Covert Text App Probe

Attorney General Josh Hawley determined last week that there was no evidence Gov. Eric Greitens or his staff had used a confidential text app to circumvent public records law.

by Jason Hancock, The Kansas City Star / March 9, 2018
The state capital in Jefferson City, Missouri. Shutterstock

(TNS) — JEFFERSON CITY, Mo. — Gov. Eric Greitens celebrated last week when Attorney General Josh Hawley cleared his office of wrongdoing over its use of a secret text messaging app.

But two St. Louis attorneys who sued Greitens last year claiming he and his staff were using the app to circumvent Missouri’s open records law say the attorney general’s investigation actually strengthened their case.

The Star uncovered in December that Greitens and several members of his senior staff were using Confide, an app that automatically destroys messages after the recipient has read them. The revelation raised red flags for transparency advocates who worried the app was being used to circumvent the state’s Sunshine Law and conduct government business without leaving a paper trail.

Shortly after The Star’s report, Hawley’s office launched an investigation. It concluded last week with the attorney general determining that there was no evidence of wrongdoing, in part because investigators could not find evidence.

Five members of the governor’s staff who were interviewed by the attorney general’s office said they did use Confide to discuss their government jobs, but described the nature of their Confide communications as consisting entirely of non-substantive matters such as logistics and scheduling.

In Sunshine Law investigations, the attorney general's office does not have subpoena power, and the governor's staff was not under oath when they were interviewed.

The governor was not interviewed as part of the inquiry because his office has asserted executive privilege.

In a new filing in Cole County Circuit Court, the attorneys suing Greitens contend that by admitting to the attorney general’s investigators that they used the app for public business, the governor’s office can no longer argue that the case has no merit or should be dismissed.

“We've learned in the past few days that the Office of Governor, and at least five high level staff members, systematically destroyed communications about public business,” Mark Pedroli, one of the attorneys, said in an email to The Star. “This is a serious and significant problem. Missouri judges have never ruled that documents, emails or text messages about government business can be immediately destroyed after they are sent or received.”

Greitens’ attorneys did not respond to a request for comment Thursday.

But during a hearing before Cole County Circuit Judge Jon Beetem last month, Greitens’ attorneys said no evidence has been produced that anyone in the governor’s office was using Confide to conduct public business. The lawsuit, they said, was based entirely on The Star’s reporting.

“There has been no independent factual investigation, and they have no facts other than what was reported in media reports,” Gabriel Gore, a St. Louis attorney hired by Greitens to defend him in the lawsuit, said in court last month.

Pedroli said the governor’s argument is no longer valid.

“Wrongdoing thrives in secrecy,” Pedroli said. “Our state law, to the contrary, demands communications about public business be retained and available. The law is nonnegotiable.”

Pedroli said the explanation that the governor’s staff used the self-destructing text messaging app only for scheduling and logistical matters was absurd.

“Who goes out their way to immediately shred their logistical and scheduling communications, when these are precisely the communications organizations rely on to function.” he said. “They would be missing meetings and showing up late everyday saying, ‘sorry I scheduled this on Confide.’ The absurdity of this excuse is apparent to most people.”

©2018 The Kansas City Star (Kansas City, Mo.) Distributed by Tribune Content Agency, LLC.