The St. Louis circuit attorney’s office on Friday asked the court to disqualify the defense lawyers for Missouri Gov. Eric Greitens in his felony invasion of privacy case because of a conflict of interest.
In the motion, Special Assistant Prosecutor Ronald S. Sullivan alleges that defense attorney James Bennett and his firm Dowd Bennett “knowingly engaged” in a conflict of interest for more than two months.
From January through March 12, Sullivan said, Dowd Bennett was representing the state of Missouri in a Cole County lawsuit over the governor and his staff’s use of Confide, an app that automatically destroys text messages.
At the same time, he said, the firm was representing Greitens in a criminal investigation in which the governor's use of private message apps "plays a key role."
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The motion reveals that prosecutors think Greitens used Confide, Signal or similar apps that can automatically delete text messages “to engage in criminal behavior” as alleged in the felony indictment.
Greitens' legal team released a statement late Friday night:
“Having already acknowledged that they lack proof of any crime beyond reasonable doubt, the Circuit Attorney now says that they have 'information and belief' that someday they might have proof based on an app.
"The term 'information and belief' is defined as 'language used in legal proceedings to qualify a statement and prevent a claim of perjury' and it should not be understood in any way to suggest there is any proof behind the statement. Rather, this is another example of the Circuit Attorney making an allegation supported by no evidence.”
The prosecution contends in its motion that Confide is at the heart of both cases, making disqualification of Dowd Bennett necessary.
Ed Dowd Jr. called the motion desperate. “There is no conflict of interest," Dowd said in a statement.
Dowd Bennett announced on March 12 that it would withdraw from the Confide lawsuit, which was filed in Cole County Circuit Court by two St. Louis attorneys. They allege that Greitens and his staff used the app to circumvent Missouri’s Sunshine Laws.
The governor’s office said Dowd Bennett was originally retained to assist with the attorney general’s inquiry into use of the Confide app. Until the inquiry concluded, Dowd Bennett also agreed to perform the initial work on behalf of the governor’s office in the Cole County lawsuit.
The attorney general investigation ended last month, and Dowd Bennett withdrew from the matter and was replaced by the Bryan Cave law firm in Kansas City.
But before the firm’s withdrawal, Dowd Bennett attorneys had “access to all of the State’s resources and knowledge about Confide,” Sullivan argues in Friday’s motion.
At the same time — from January 2018 through March 12, 2018 — Dowd Bennett also represented the governor against the state in the criminal case stemming from Greitens’ extramarital affair, Sullivan says.
“This by itself is grounds for disqualification,” Sullivan writes.
Dowd said in a statement that the firm consulted with Attorney General Josh Hawley in January about how to avoid a conflict between the two cases.
"This was resolved by satisfying the Attorney General that the state would not be billed additional amounts based on the two matters. The State has at all times been aware of this situation and the Circuit Attorney’s maneuver in raising it now reflects on the motion’s lack of support and a certain level of desperation," Dowd said.
Sullivan said in his motion that the attorney general cannot "feasibly consent" to a conflict on behalf of the circuit attorney's office, which did not consent. Even if the attorney general could consent, "he did not know what charges would be brought and if they were, under what statutes and facts."
If Dowd Bennett attorneys are not disqualified, Sullivan argues, they could be required to cross-examine state witnesses about Confide, a scenario Sullivan says is prohibited by law.
The very fact that Dowd Bennett withdrew from the Confide lawsuit indicates the firm understood the existence of a conflict of interest and the inability to satisfy ethical obligations to both clients, Sullivan states.
Greitens was indicted by a grand jury on Feb. 22 for felony invasion of privacy based on allegations that he photographed a woman in 2015 while she was blindfolded and partly nude in an effort to keep her from talking about their extramarital affair.
The indictment accused Greitens of transmitting the photograph “in a manner that allowed access to that image via a computer.”
The motion from the circuit attorney’s office follows weeks of accusations from Greitens’ attorneys in legal filings, courtroom comments and media interviews that prosecutors have acted inappropriately in their handling of this case.
Greitens’ defense team alleged in a filing earlier this week that the hiring of Sullivan, a Harvard law professor, to serve as a special prosecutor violated Missouri law because Sullivan also is a defense attorney. They asked for Sullivan to be disqualified.
During a court hearing last month, Bennett revealed that prosecutors do not possess the photo Greitens allegedly took of the woman.
William Tisaby, a private investigator hired by the circuit attorney's office, acknowledged in a deposition this month that he has not seen the photograph and that he did not find any evidence of the photograph during his work for the prosecutor's office.
Friday's filing from prosecutors has the effect of linking the criminal case to the controversy surrounding Hawley’s investigation into the governor’s use of Confide. The app deletes a text message after it has been read, and it prevents someone from forwarding or taking a screenshot of a text.
Hawley, the GOP frontrunner in the U.S. Senate race, has been dogged by questions after his investigation found no wrongdoing. He confirmed Friday that he was coordinating with the circuit attorney's office when appropriate as he conducts a separate investigation into the governor's charity.
The Star revealed in December that Greitens and most of his senior staff were using Confide.
Of 31 current members of the governor’s staff, 13 have been confirmed to have had Confide accounts associated with their private cell phones, including Greitens.
Shortly after The Star's report, Hawley announced that his office would investigate whether Confide was being used to illegally destroy public records that were required to be retained. And the two St. Louis attorneys filed their lawsuit about the governor's use of Confide in Cole County.
Normally the attorney general’s office would represent the governor in any litigation against his office. But its investigation presented a conflict of interest, so Hawley agreed to allow Dowd Bennett to represent the governor in the Confide lawsuit.
For their services, the state would pay Dowd Bennett $140 an hour.
Shortly after the law firm was appointed in the Confide lawsuit, news of Greitens’ 2015 affair and allegations of blackmail became public. The St. Louis prosecutor announced a criminal investigation into the accusations, and Dowd Bennett began defending Greitens in that inquiry as well.
The attorney general’s office sent a letter to Dowd Bennett making sure that no state funds would be used to help cover legal expenses in the governor’s criminal defense. As a result of the letter, Dowd Bennett decided to forgo any pay for its work on the Confide lawsuit and agreed to represent Greitens and the governor’s office pro bono.
Gabriel Gore, an attorney with Dowd Bennett, appeared on behalf of the governor before Cole County Judge Jon Beetem in an early February hearing.
Hawley’s investigation into Greitens’ use of Confide ended with a determination that there was no evidence of wrongdoing, in part because there was no evidence. The attorney general’s office lacks subpoena power in Sunshine Law investigations, and thus, the probe relied mostly on interviews with eight members of Greitens' staff.
The governor was not interviewed.
The attorney general’s office confirmed that Dowd Bennett’s Gore was present when Greitens’ staff were interviewed.
U.S. Sen. Claire McCaskill, a Democrat who Hawley is seeking to unseat, has repeatedly questioned and criticized the decision to allow Greitens’ team to sit in on interviews with the governor’s staff.
“My jaw just dropped. To the floor. As an experienced prosecutor I’m stunned,” McCaskill tweeted Tuesday in response to an article about Hawley’s office defending the move as normal.