UPDATE: St. Louis Circuit Attorney Kim Gardner will have to give up her e-mail server after all.
In a new ruling late Tuesday afternoon, the Missouri Supreme Court paved the way for a hotly contested search warrant to be executed in her office.
The high court denied both of Gardner's requests aimed at stopping the warrant or getting a preliminary stay.
That means the server could be seized as early as Wednesday morning.
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ST. LOUIS - St. Louis Circuit Attorney Kim Gardner is asking the Missouri Supreme Court to stop a hotly contested search warrant from being executed at her office.
The request is spelled out in a number of new court documents that were filed Tuesday and obtained by the 5 On Your Side I-Team.
Lawyers for Gardner argue that the warrant is overly intrusive and will cause irreparable harm.
That's why they're asking the judges to overturn a lower court's decision that denied Gardner's request that the warrant be quashed.
But that's not their only ask of the state's high court.
Gardner's legal team also wants a preliminary stay on any search for electronic information housed in her office until mutually agreeable procedures for handling such sensitive information are established.
Additionally, they're seeking clarification regarding the warrant as to avoid the harm they believe it would do to the operations in Gardner's office.
So far, the court's only ruling on the matter relates to an exhibit that Gardner's team wanted to file under seal. The court overruled that request.
The appellate court previously ruled the search warrant could be executed beginning April 9.
A spokeswoman for Gardner said it hadn't happened yet.
The warrant stems from Gerard Carmody, a special prosecutor who's seeking information from the circuit attorney's e-mail server in relation to an ongoing perjury investigation.
In additional court documents filed with the Missouri Supreme Court and obtained by 5 On Your Side, Carmody argues the search warrant should be allowed to proceed.
Carmody suggests Gardner's team is resorting to delay tactics to impede an ongoing criminal investigation and keep a grand jury from hearing evidence.
Carmody tells the court he has several key witnesses are set to testify before the grand jury in the coming weeks, including this Thursday.
"It is of the utmost importance to the investigation that the search warrant be executed prior to the testimony of these witnesses because the search warrant seeks critical information concerning to the grand jury’s investigation," he wrote.
Carmody goes on to say that any further delay could jeopardize his investigation altogether.
He writes, "Grand juries may only convene for a finite period of time. If the search is further delayed, it is unlikely there will be enough time in this grand jury session to recall these key witnesses to testify regarding the information sought in the warrant."
A redacted version of the search warrant shows he's looking for any and all stored electronic email communications and files stored on Gardner's server between January 1, 2018, and June 30, 2018, that fall within some of the following search terms:
Greitens, Governor, Notes, Bullet Points, Investigative Narrative, Video, Malfunction, Preservation of Evidence, Perjury, Enterra, Tape, EG, Privilege Log, Vestige, Recording.
Court documents also reveal Carmody's team is interested in e-mail communications between the circuit attorney's office and William Don Tisaby between January 1, 2018, and June 31, 2018.
Tisaby is a former FBI agent who Gardner previously hired as her office investigated former Missouri Governor Eric Greitens.
All charges against Greitens have since been dropped.
However, his defense team brought allegations of perjury involving Tisaby to St. Louis Police, which launched an investigation.
The circuit court appointed Carmody as special prosecutor, citing a conflict with Gardner.
In January, a grand jury was convened to consider charges of whether Tisaby lied under oath during a deposition that was videotaped.
Gardner's office has said it already complied with one search warrant from Carmody seeking e-mails related to Tisaby over a six month period in 2018.
She has said the second, more contested search warrant was overly broad and would've netted confidential information and people and cases that are unrelated to Tisaby and the Greitens case.
Gardner's server, as it's been described to 5 On Your Side, contains hundreds of thousands of highly sensitive files about past and current crimes, victims, defendants and investigations.
It's sensitive information, her team argues, that they have a sworn duty to protect.
In court filings, Carmody's team has argued that executing the search warrant is well within their rights and suggested Gardner is trying to intentionally obstruct his investigation
Gardner's team maintains they are not trying to impede the special prosecutor's case, but are obligated the protect the information of everyone involved with their office.
There is a gag order in the matter, so the parties involved are not allowed to comment.
