JEFFERSON CITY — An ongoing lawsuit has elicited more answers about Gov. Eric Greitens' secret communications than Attorney General Josh Hawley obtained, in large part because the lawyer working the case didn't shy away from asking questions.
Mark Pedroli, the attorney handling the lawsuit, provided the News-Leader with dozens of pages of requests for information and written responses from Greitens' legal counsel. The lawsuit alleges that by using an app that sends self-destructing messages, the governor's office may have violated the Missouri Sunshine Law.
In response to most questions regarding his communication habits, Greitens wouldn't offer a yes or a no answer. But even his non-answers offer more detail than was available in Hawley's probe, in which investigators were apprehensive that Greitens would cite a privilege that doesn't exist in Missouri law to avoid questions.
Hawley's investigation was released in early March — by Greitens' office — and found no evidence of wrongdoing among staffers in the governor's office. A spokesman for Greitens called the report "thorough" and said it "recognizes that we have gone above and beyond what the law requires in the interest of transparency."
Since then, Hawley has distanced himself from Greitens. Hawley stayed away from a political event in Springfield where the governor spoke in late March and held a press conference in April to announce that a separate investigation had turned up evidence that Greitens may have committed computer tampering by obtaining a charity donor list for political fundraising.
After lawmakers released testimony in April that described accusations of sexual misconduct against Greitens, Hawley called for Greitens to resign.
The two feuded in court before a judge said Hawley could continue investigating the governor. In Greitens' first criminal case, which was recently dismissed, the governor's attorneys belittled the state's top law enforcement officer by referring to him as the "associate" of St. Louis Circuit Attorney Kim Gardner.
Hawley's office says that it didn't believe it had enough evidence for a Confide lawsuit, which would have given the attorney general's office the power to dig deeper into Greitens' secret communications.
But the current Confide lawsuit, filed by a private attorney in the St. Louis area on behalf of the Missouri Sunshine Project, has survived so far, and it has arguably turned up more information than the attorney general's effort.
"I had a strong feeling that there was grounds to file a lawsuit," said Pedroli, "and that was proven true when the governor's motion to dismiss was denied."
What Greitens admits
Greitens admitted he "used Confide to communicate with others," but "only in a way that does not concern public business and/or is consistent with the requirements of the Open Records Law." This includes communications with members of his staff in the governor's office to discuss "scheduling," court documents say.
Greitens' response to the lawsuit lines up with what some of his senior staffers told Hawley earlier this year: That they used Confide only for matters of logistics and not for substantial government business. His words also go beyond what Hawley found, specifically because Greitens was put in a position where he answered a question.
Greitens, with his attorney, also admitted that "he generally understood" that his staff "used Confide to communicate with each other" and that "he knows the approximate date he downloaded Confide on his personal phone."
In response to a separate question, Greitens said that "to the best of his knowledge, the Governor downloaded the application sometime in 2016 and did not use it before then."
What he denies
Greitens denied when asked whether he used Confide with "other Missouri government officials" outside the governor's office or for communicating with "a government lobbyist and/or someone compensated to influence the government."
Greitens' lobbyist, Aaron Baker, has a Confide account. Baker told the News-Leader Wednesday that he had never communicated with Greitens via Confide.
The governor also denied instructing or suggesting that one of his staffers use Confide and downloading the app on a state-issued phone. (Greitens' Confide account is connected to a personal cellphone number.)
Greitens declined to name members of his staff who used Confide, saying that information was "publicly available and has been reported in the media." He also objected to providing contact information related to his Confide use.
As far as he remembers, Greitens said, he did not use Confide to discuss pending legislation or strategic plans or goals of the governor's office, or to "fill open positions" in his office.
Greitens denied sending or receiving any photograph, Word document or PDF file using Confide, and he said he did not communicate with any non-U.S. citizens or any U.S. citizens living outside the country, according to court documents.
Greitens objected when questioned whether, before Dec. 10, he had ever communicated with his wife or another immediate family member via Confide. He called this question "irrelevant, intrusive, harassing" and said it showed that the lawsuit had "no legitimate litigation purposes."
Asked why he wanted to know whether Eric and Sheena Greitens had texted on Confide for the purpose of the lawsuit, Pedroli defended this line of questioning. He said in an email he wanted to cast a wide net to prepare for depositions, adding that an answer of "no" could help him eliminate the argument that Greitens used Confide solely for family communications.
"Their objection to that question is not well taken," Pedroli said. "It was an appropriate question."
"Neither admit nor deny"
Most of Greitens' responses reiterated numerous objections before ending with "we neither admit nor deny" — another way of saying "no comment."
This rhetoric in hand, Greitens and his attorneys didn't definitively say whether Greitens used Confide to discuss his gubernatorial campaign or to communicate with any political donors, people working with nonprofits or political action committees, specifically including A New Missouri, a nonprofit formed by Greitens' campaign aides to advocate for the governor's agenda.
Presented with a list of about 50 individuals, Greitens declined to identify anyone with whom he has communicated over Confide.
Greitens also did not provide an affirmative or negative response when asked whether he used Confide to communicate with any "agents of the Trump Administration," and his attorneys objected to that phrase as "vague and ambiguous."
He gave the same response when asked whether he used Confide to communicate with anyone in Vice President Mike Pence's office; Pence's chief of staff, Nick Ayers, advised Greitens during the 2016 campaign.
And the form of "no comment" was also the response when Greitens was asked about alleged Confide communications with big companies like Ameren, Boeing and Centene.
"They're willing to admit or deny the things that they believe help their interest, and they refuse to answer anything else," Pedroli said. "I think the refusal to admit or deny relevant questions about the use of Confide is troubling."
Hawley's defense
Pedroli told the News-Leader he has been working with Hawley's office to obtain records via subpoena that the attorney general declined to release through open records requests. So far, Pedroli said, "it's been a reasonable process, and we are getting some documents."
Hawley's investigators did not ask to speak with Greitens, the News-Leader previously reported.
That decision arose after informal discussions that led Hawley's office to believe the governor would invoke a doctrine of executive privilege that does not appear to be spelled out in state statute, case law or the Missouri Constitution.
Executive privilege "doesn't exist in Missouri as a matter of law," said Pedroli, the attorney who filed the requests for information, in an email. "If the governor asserts the privilege to conceal documents and/or communications, we will oppose it."
Instead, Hawley's investigators spoke with several of the governor's senior staff and took them at their word when those who admitted to using Confide to discuss government business said they didn't send self-deleting messages about anything substantial. Messages that are "transitory" in nature, like scheduling a meeting, don't have to be retained.
Hawley's office defended its actions Monday when asked how Pedroli's lawsuit was able to evince answers from Greitens when Hawley had so far seemed unable or unwilling to seek them.
"Under the Sunshine Law, the Attorney General’s Office does not currently have authority to compel any witness or individual to provide evidence or respond to questions," said Mary Compton, spokeswoman for Hawley's office, in an email. "That is why the Attorney General has asked the Legislature to give this Office subpoena power under the Sunshine Law. The Attorney General has not hesitated to use subpoena power where and when it is available."
Compton said Hawley's office didn't have enough evidence to file its own lawsuit.
"As we have said before, in order to file an enforcement lawsuit, the State must have evidence that establishes a probable violation of the law," Compton said. "Our Office did not have sufficient evidence in its hands to meet this legal standard. That is why the Attorney General has called on the legislature to strengthen this Office’s investigative powers in the Sunshine context."
Pending legislation could give the attorney general's office civil subpoena power, as well as increasing allowable fines for Sunshine Law violations. The Senate has not taken action the bill since the House passed it in mid-April.
Pedroli said he expects to seek a court order to force Greitens to answer more questions — a power granted as part of the lawsuit he filed.
"My goal is to prove whether or not they destroyed communications that should have been retained," Pedroli said, "to shed light on how and why this violates the Sunshine Law."
