The Missouri attorney general’s office is fervently defending its investigation of Gov. Eric Greitens’ use of a self-destructing text messaging app, suggesting those upset with its findings should focus on improving the state’s Sunshine Law.
The Star reported in early December that Greitens and most of his senior government staff were using an app called Confide, which allows someone to send a text message that automatically erases after it is read. It also prevents someone from saving, forwarding, printing or taking a screenshot of the text, raising concerns among government transparency advocates that the app could be used to subvert the state’s open records laws.
Attorney General Josh Hawley launched an investigation shortly after The Star’s report. It concluded last month with a report determining that there was no evidence of wrongdoing, in part because investigators could not find evidence.
At a campaign stop in Raytown earlier this week, Hawley said his office did as much as it could given the limited powers it has to investigate possible violations of the state’s open records laws.
“We conducted a months-long investigation,” Hawley said. “We talked to all of the senior staff in the governor’s office who were relevant to the inquiry, sat down with the director of public safety and we looked at all of the evidence available to us.
“But listen, listen, this is why we have said the attorney general’s office needs to have subpoena power to enforce the Sunshine Law, we need to have stiffer penalties,” he continued. “Because you know, the report says what it says. We looked at all of the evidence available, but you’re right there’s only so much evidence available… if it’s not there, it’s not there.”
In a conference call with reporters Friday, Darrell Moore, deputy attorney general for the office’s criminal division who led the inquiry of the governor, echoed Hawley’s sentiments.
“We have no authority to compel anyone to cooperate with us, to tell us anything, to seize anything,” he said.
Moore stood behind the investigation’s conclusion that Greitens’ office did not violate state records law by using Confide.
He said the governor’s office has a strong policy in place regarding records retention and trains everyone on staff on how to abide by state law.
“There’s nothing to indicate to us there were any attempts by anyone to avoid keeping records they had to keep so they could be in compliance with the Sunshine Law,” Moore said.
But without subpoena power, the investigation was based mostly on interviews with eight senior staff members who had Confide accounts associated with their personal cell phones: Chief of Staff Mike Roche, Chief Operating Officer Drew Erdmann, Policy Director Will Scharf, Director of Management and Budget Jennae Neustadt, Deputy Chief of Staff Nick Maddux, Deputy Policy Director Logan Spena, General Counsel Lucinda Luektemeyer and Special Counsel Sarah Madden.
“To a person, when directly asked if they’d ever used Confide in violation of the governor’s own policy to discuss public policy matters that would have to be preserved, they denied it,” Moore said. “And my assessment, based on my years of experience, they were telling the truth. I detected no signs of evasion, no shiftiness of eyes, no hesitation, nothing that would indicate they were lying.”
They did not interview four other staff members who had Confide accounts associated with their personal cell phones: Deputy Legislative Director Brad Green, Deputy Legislative Director Jeff Earl, Legislative and Policy Adviser Todd Scott, and Press Secretary Parker Briden.
They also didn’t interview Greitens.
The attorney general’s report said the governor’s office asserted executive privilege. Moore said Friday that executive privilege was never formally asserted for the governor, but it was indicated it would be asserted if they requested an interview.
Staff were also never directly asked if they communicated with the governor on Confide. Moore said the questions were broader, focusing on whether they communicated with anyone using Confide in a way that would violate state open records laws. That would have included the governor, he said.
“I didn’t care who they communicated with,” he said. “I was concerned with what they were communicating.”
The attorney general’s investigation determined that five members of the governor’s staff who were interviewed admitted they used Confide to discuss their government jobs. But they described the nature of their Confide communications as consisting entirely of non-substantive matters such as logistics and scheduling.
Moore said that type of communication is not legally required to be retained.
Ultimately, Moore said he takes criticism of the attorney general’s office’s investigation as “a personal attack on my integrity.”
He noted that the attorney general is supporting legislation set to be debated by a Missouri House committee later this month that would make changes to the state’s sunshine law, including granting the attorney general broader powers to ensure it is enforced.
“People may disagree with it because the reports didn’t reach the preconceived notions they had,” he said. “But the reality is the law is like it is. The law needs improved.”
Mark Pedroli, a St. Louis attorney suing Greitens in Cole County court over use of Confide, said his lawsuit is important "for transparency advocates both locally and nationwide. Unlike the attorney general's office's limited inquiry, a Sunshine lawsuit carries with it the full powers of the court including the ability to subpoena witnesses and take depositions under oath."
The Star's Bryan Lowry contributed to this report.