No immediate ban on Greitens’ use of secret text app, but judge has more questions

A Cole County judge refused Friday to issue a temporary restraining order that would have barred Gov. Eric Greitens and his staff from using a secret texting app.

But Judge Jon Beetem seemed to indicate that the issues raised in the lawsuit warrant further investigation.

Two St. Louis County attorneys filed a lawsuit late last month accusing Greitens and his staff of engaging in an ongoing conspiracy to violate Missouri’s open records laws by using Confide, an app that erases text messages after they are read and prevents someone from saving, forwarding, printing or taking a screenshot of texts.

Because the app is designed to eliminate a paper trail, it is impossible to determine whether the governor and his staff used it to conduct state business out of view of the public, or whether they’re using it for personal and campaign purposes.

Mark Pedroli, one of the attorneys who sued Greitens, argued Friday that Beetem should prohibit Greitens and his staff from using Confide out of concern that public records are being illegally destroyed.

“Confide has a singular purpose,” said Pedroli, co-founder of a group called the Sunshine Project. “To shred. To destroy. To destroy communications sent and received.”

The Star first reported in December that the governor and most of his staff have Confide accounts connected to their personal cell phones. In addition to the governor, those who had Confide accounts at the time include his chief of staff, deputy chief of staff, director of cabinet affairs, legislative director, deputy director of legislative affairs, policy adviser and press secretary.

Most of those staffers appear to have deleted the app since The Star’s story published.

With so many members of the governor’s inner circle using the app, Pedroli argued that it is reasonable to conclude it is being used for public business.

“Are they asking you to believe that zero percent of communications they sent to each other have something to do with public business?” he said. “I think (you) can look at this systematic method of communications that shreds the communications immediately, and you can draw an inference that at least one or two or 20 or 50 percent of these messages are about public business, and that those messages can’t be shredded.”

Gabriel Gore, a St. Louis attorney hired by Greitens to defend him in the lawsuit, argued that Pedroli has produced no evidence that anyone in the governor’s office is using Confide to conduct public business.

Pedroli is basing his entire case, Gore argued, on The Star’s reporting.

“The factual basis for plaintiffs’ allegations are media reports. They cite a Kansas City Star article,” Gore said. “There has been no independent factual investigation, and they have no facts other than what was reported in media reports.”

The fact that there are allegations surrounding use of the Confide app by Greitens’ office doesn’t mean any records have been improperly destroyed, Gore said.

“If there was a Kansas City Star article that says we just found out there’s some brand new garbage cans delivered to the office of the governor,” he said, “and based on that, they could use those garbage cans to throw out records that should be retained. That would not create basis for a lawsuit.”

Gore also argued that barring the governor and his staff from using Confide for personal communications would likely violate their First Amendment rights to free speech.

Pedroli noted that neither the governor nor any of his staff have signed an affidavit denying use of the app for public business. And in public statements since the story broke, he said, no one has refuted the reports that staff had Confide on their personal cell phones.

Beetem ultimately decided not to issue a restraining order. But he indicated that the issue wasn’t as clear cut as the governor’s attorneys believed. He set a hearing for further arguments in March.

“There are a whole bunch of open questions here,” Beetem said. “We’re going to need to sort this out.”

Pedroli said he was disappointed with the judge’s decision but he “loved his comments.”

“He’s obviously troubled by the case,” Pedroli said.

In addition to the lawsuit, the governor’s office’s use of Confide is under investigation by Attorney General Josh Hawley’s office. That inquiry is ongoing.

This story was originally published February 2, 2018 at 2:49 PM with the headline "No immediate ban on Greitens’ use of secret text app, but judge has more questions."