Attorney General Josh Hawley has investigated Gov. Eric Greitens’ social media for alleged Sunshine Law violations twice before. He probed the governor’s use of a self-destructing text message app called Confide as well.
And each time his office said a lack of jurisdiction or subpoena power contributed to dropping the inquiry or clearing Greitens of wrongdoing.
Now, after The Star discovered emails showing a taxpayer-funded staff member appearing to create content for the governor’s Facebook, Hawley has once again launched an investigation.
But some wonder whether the outcome will be any different.
“It's pretty clear he did almost nothing the first go-around, and assuming he's being more thorough now, that just raises questions on why he wasn't before,” said Andy Hirth, an attorney who worked in the attorney general’s office under Democrat Chris Koster. “He's painted himself into a corner where it's hard for him to get out now without looking like he made a mistake before.”
The Missouri House has approved legislation that would give the attorney general more authority to enforce the Sunshine Law, including civil investigative demands, which function like a subpoena. Hawley has said he’ll relaunch his Confide investigation if it passes, but with less than two weeks left before the legislature adjourns, the bill’s fate is unclear.
Meanwhile, Democrats contend that the attorney general has all the authority he needs to enforce the Sunshine Law, if he chooses to use it. Hawley says he doesn’t have subpoena power, but Democrats argue he could file a lawsuit under the Sunshine Law if Greitens refuses to cooperate — a move that would give him subpoena power.
Hawley’s “excuses” aren’t going to wash “because first of all, they're not true,” said Michael Wolff, an attorney and former Missouri Supreme Court chief justice. “And second of all, the day when Josh Hawley is going to be protecting Eric Greitens, that day disappeared on April 11.”
That was the day a Missouri House committee released a report that found a woman’s account of a nonconsensual sexual encounter with Greitens to be credible. Hawley responded to the report by becoming the highest-ranking Missouri Republican to call on Greitens to resign.
“This Office has aggressively enforced the Sunshine law, including suits against multiple public bodies,” Hawley’s spokeswoman Mary Compton said in a statement. “But under current law, the Office's investigative tools are limited, and that is why the Attorney General has called upon the Legislature to give this Office subpoena power for Sunshine investigations, as well as enhanced Sunshine penalties.”
The news of a third inquiry into Greitens’ social media has rekindled Democratic criticism that the attorney general has turned a blind eye to allegations of wrongdoing against the governor for more than a year, getting involved only after Greitens’ scandals became a liability to Hawley’s campaign for U.S. Senate.
"Hawley's failure to investigate the governor until it became necessary to save his political career says all you need to know about Hawley's motivations — he will always put himself and his allies first," said Brooke Goren, spokeswoman for the Missouri Democratic Party.
Hawley’s office stands firm that the investigation into Greitens’ social media was not launched for political reasons but when it had the ability to do so.
“After evidence was provided … we opened an investigation,” Compton said in a statement.
Politics at play
A complaint was first filed about Greitens’ refusal to turn over records related to his social media in October 2017. Nearly two months later, the attorney general’s office said it didn’t have jurisdiction to pursue the complaint. It was instead forwarded to the Cole County prosecutor’s office, which dismissed it.
A month later, the attorney general reversed its policy and announced it would investigate the governor’s use of a text-message deleting app called Confide. That investigation was finished in March 2018 when Hawley concluded there was no evidence of wrongdoing because there was no evidence. Without subpoena power, the attorney general’s office relied on interviews with the governor’s staff.
Greitens was not interviewed.
While the attorney general was investigating Greitens’ use of Confide, The Star asked on Jan. 16 whether Hawley’s office was reconsidering its dismissal of the social media complaint from the previous year. Nine days later, Hawley’s office said the governor was not violating the Sunshine Law by refusing to turn over social media records.
The Star requested all communication, emails, research and memos related to the January investigation. Hawley’s office said those records were closed, citing privileged communication.
“You would think … if they're not going to use the Sunshine Law to force sunshine on a topic, that the least they could do is tell the public why the public's going to be denied this sunshine,” Wolff said. “Maybe they've got one piece of paper and they closed it. We don't know what's in there, but it doesn't look like they spent a lot of time investigating the governor prior to April 11.”
Despite their closure, Compton confirmed there are records related to the January investigation.
“Yes, those records exist,” she said.
Rep. David Gregory, R-St. Louis, is sponsoring a bill that would not only give the attorney general investigative subpoena power but also establish a “Transparency Division” within the attorney general’s office to avoid conflicts of interest in Sunshine Law inquiries.
The bill “provides teeth,” Gregory said during House debate. “It gives the attorney general the ability to say, 'No, no. I don't care if you want to cooperate or don't want to cooperate, you're going to cooperate and you're going to do it by law.’ ”
But other lawmakers questioned whether action was being taken in a genuine effort to update the Sunshine Law or simply for politics.
“I think it's pretty clear what the fate of the bill's going to be, and so my concern is that we would do something for show,” said state Rep. Jon Carpenter, D-Kansas City. “Let's say the attorney general — who I know is a fan of the bill — out of a desire to quash some of the negative coverage (he) got from the whole Confide investigation, if this is a way for them to say, ‘Look, we're really working on this issue’ without actually making it into a law.”
Hawley’s actions as attorney general have come under increased scrutiny as he campaigns for U.S. Senate, challenging incumbent Democrat Claire McCaskill in a race that could ultimately decide control of the Senate.
Democrats first criticized Hawley when he announced his investigation into Greitens’ misuse of a donor list from the nonprofit he founded, The Mission Continues, to raise money for his campaign. They said he could have chosen to investigate a year earlier.
Greg Vonnahme, political science professor at the University of Missouri-Kansas City, said a combination of factors most likely motivated Hawley to investigate Greitens’ social media.
“This has been a question for a while, so why investigate this now?” Vonnahme said. “It could be political. It does align with Hawley's potential political motivation there to separate himself from a scandal-involved governor of his party. It could be personal. He's called for the governor to resign. … Or it could be fact-based. It could be that with the accumulation of these scandals that Hawley is going back and re-evaluating the governor's conduct with maybe a more jaundiced eye than what he had initially.”
Hawley’s investigations are part of a “really unusual scenario of events here in Missouri,” said Peverill Squire, a political science professor at the University of Missouri-Columbia.
“I think it's pretty clear that the governor and the attorney general are in a pitched battle, and I think Hawley had initially hoped to avoid this,” Squire said, “but now that he's been entangled, he's certainly willing to use all the resources of his office to try to pursue that case against Greitens.”
Without subpoena power, the investigation can go only so far, said Dave Robertson, professor and chair of the University of Missouri-St. Louis’ political science department.
“This may be a sort of an impossible investigation to pursue to its conclusion, because the attorney general can't subpoena people and force them to speak under oath,” Robertson said. “The guy is in a bad position because he has the responsibility to investigate wrongdoing. He's damned if he does, he's damned if he doesn't.”
Private or public?
Questions about Greitens’ use of social media have been percolating for the last year.
Until September 2017, Greitens had only one set of Facebook, Twitter and Instagram accounts with the handle @EricGreitens that he had started during his campaign and continued using after he became governor. He didn’t create official accounts until a media records request in August 2017 seeking the number of users blocked by the accounts, a history of direct messages and information related to the accounts’ creation.
After creating the new accounts, the governor’s office argued that the original Facebook, Twitter and Instagram were not “official” state accounts and thus not subject to the Sunshine Law.
But the argument used to avoid compliance with the Sunshine Law raises the specter that one of the governor’s taxpayer-funded staff members may have violated a state law that prohibits state employees from doing political work in their official role.
Emails from January 2017 appear to show Parker Briden, Greitens’ official press secretary, creating content for the governor’s Facebook page — during the workday and using his official government email address.
Briden did not respond to a request for comment.
The attorney general’s office said previously that Briden’s involvement in Greitens’ “private” social media accounts may also make them subject to the Sunshine Law.
“If a state employee was in fact operating that account, the Sunshine Law may well apply to some or all of the records associated with that account,” Compton said. “If state employees are operating campaign social media accounts, that would raise serious legal concerns.”
Greitens has used the “private” accounts where he holds Facebook Live town halls in his official Capitol office to also buy advertisements soliciting campaign donations and, most recently, share news articles bashing St. Louis Circuit Attorney Kim Gardner, who is currently charging Greitens with two unrelated felonies.
According to campaign finance reports filed with the Missouri Ethics Commission, Greitens’ campaign paid Facebook a little more than $5,000 for advertising from Feb. 10 to March 1, 2017. This was when just one set of social media accounts existed.
Greitens’ campaign has also paid for media production and digital media services from various companies, most notably Something Else Strategies, c5 Creative Consulting and Bask Digital Media — which all have ties to Nick Ayers, Vice President Mike Pence’s chief of staff, who was also Greitens’ top campaign consultant in 2016.
Bask Digital Media touts on its website that it “worked on every aspect of the Greitens campaign,” including areas such as digital advertising, social content creation and online fundraising. The company is still on the campaign’s payroll, according to the most recent campaign finance report filed with the Missouri Ethics Commission, and has been paid more than $300,000 by the Greitens campaign since he became governor.
The investigation into Greitens’ social media is still ongoing.
Hirth, who was part of a group of attorneys who wrote a letter critical of the Confide investigation's outcome, said he expects Hawley to be much tougher this time on the governor.
“We're likely to see reports coming out of his office that find the governor did improper things,” Hirth said, “especially now that we're going to have a special session on impeachment.”