In a stunning development, St. Louis Circuit Attorney Kim Gardner on Monday dropped her prosecution of Missouri Gov. Eric Greitens in the face of the defense team’s plan to call her as a witness.
Yet Republican legislative leaders said later that evening that Gardner's decision would have no impact whatsoever on whether the Missouri General Assembly moves forward with impeachment, a process set to begin at 6:30 p.m. Friday.
GOP leaders also renewed their call for Greitens to resign immediately.
Gardner’s office asked the court to appoint a special prosecutor to refile the felony charge of invasion of privacy against the governor, but Jim Bennett, the governor’s attorney, rejected the notion that charges would necessarily be refiled. He said discretion to do this would rest solely with the special prosecutor.
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Gardner's decision to drop the case came after more than 100 potential jurors had been interviewed for the trial that was set to begin this week.
"Today the prosecutor has dropped the false charges against me," Greitens said to a crowd of reporters after emerging from the courthouse. "It is a great victory and it was a long time coming. This experience has been humbling and I have emerged from it a changed man."
Greitens faced a felony charge based on allegations that he took a partially nude photograph of a woman without her consent while they were having an affair in 2015. She was allegedly bound and blindfolded when the photo was taken, and she says he threatened to release it if she ever spoke about the affair.
Judge Rex Burlison agreed to unseal the transcripts related to his decision to allow Greitens' legal team to depose the prosecutor.
Scott Rosenblum, a member of Greitens' team, said the judge's decision was based on the probability that Gardner had knowledge of perjury committed by a private investigator hired by her office.
"She made herself a witness to the perjury that her investigator created throughout this case and his misconduct. She was the only witness," Rosenblum said.
He called for an unrelated felony computer tampering charge, also filed by Gardner's office, to be dropped as well.
"I think anything that this circuit attorney's office has touched or its investigators should be dropped because it's tainted. It's biased. And those decisions cannot be looked at as objective," Rosenblum said.
Gardner's office issued a statement that accused Greitens of using "a scorched-earth legal and media strategy" and attacking "the intentions, character and integrity of every person involved in investigating the Governor’s behavior."
"A defendant who wishes to call a prosecutor as a witness must demonstrate a compelling and legitimate reason to do so," Gardner's office wrote. "Governor Greitens has produced no compelling reason to include the Circuit Attorney as a witness for any purpose."
Nevertheless, the statement said, Burlison "made an (unprecedented) decision" to let Greitens' team call Gardner as a witness.
"The court’s order leaves the Circuit Attorney no adequate means of proceeding with this trial," the statement said.
Bennett rejected the suggestion that the judge's decision was unprecedented and noted that Gardner's decision to drop the case came after the defense filed another motion for dismissal after a search of the governor's Apple cloud data yielded no evidence of the photograph.
"The case could have proceeded if they were truly ready to go, but rather than answer questions about what happened here, they dismissed it," Bennett said.
He noted that the issue of whether Gardner could be called to the stand went before the Missouri Court of Appeals on Monday and the appeals court sided with Burlison.
Jean Paul Bradshaw, a former federal prosecutor, said Monday's developments were unusual.
"I've never seen anything like it," said Bradshaw, who specializes in white-collar investigations for Kansas City law firm Lathrop Gage.
Bradshaw said Burlison's ruling to make Gardner a witness in a case left her with a conflict of interest and thus no choice but to drop the case.
"I think you have to know when you do that, if you're going to rule that way, you put the prosecutor in the kind of position that really results in no other decision that can be made," Bradshaw said. "Arguably, if it was some assistant prosecutor, you could exclude them from the case. She is the elected prosecutor. You put them in an untenable position."
John Ammann, a law professor at St. Louis University, said Gardner most likely dropped the case because of a lack of evidence. Possible political ramifications from airing information on potential misconduct in the circuit attorney's office also may have played a role, he said.
Gardner did not have to dismiss the case Monday, Ammann said. If a lawyer in a case is called as a witness, it only means that lawyer cannot serve on that case's legal team, he said; other prosecutors on the team could have handled the case.
A special prosecutor, most likely from another county in Missouri, would have 27 days as of Monday to refile the charges before the statute of limitations expires, Ammann said.
The judge's decision to allow Gardner as a witness is not unprecedented, Ammann said, though "these are unprecedented circumstances created by the circuit attorney's office and some of the mistakes they made in the case," he added.
"In light of the facts the judge had, it's not unprecedented," Ammann said.
Special session: on
News that the charges were dropped came just days before lawmakers are to convene a special session to debate possible impeachment.
Lawmakers were stunned by the sudden development, but the news seemed to have little impact on individual lawmakers' positions on what the legislature should do next.
Senate President Pro Tem Ron Richard, R-Joplin, and Senate Majority Leader Mike Kehoe, R-Jefferson City, issued a statement Monday evening saying that the dismissal will have no impact on the special session set to convene Friday to consider possible impeachment.
"The House’s investigation and the Circuit Attorney’s case are two separate paths," Senate GOP leaders said. "The members of the House committee have discovered a disturbing pattern of allegations, most of which are completely separate from the case dismissed today. They need time to finish their investigation."
Richard and Kehoe added that the governor "has lost the moral authority and the ability to lead the state going forward, and we reaffirm our call that he resign immediately.”
House Speaker Todd Richardson, R-Poplar Bluff, released a statement saying that the House investigation has thus far released two reports of its findings that uncovered "additional concerns relating to the governor’s conduct."
Now that criminal trial is at least temporarily over, Richardson said, the governor should testify to the House committee.
"Without the pending trial this week," he said, "'it allows the Governor to take advantage of our open offer to share his side of the facts.”
Rep. Gina Mitten, D-St. Louis County, serves as ranking minority member on the committee that's been investigating the governor for the last few months. She said that while the development was unexpected, "it doesn't change the work that our committee is doing."
"We've gone through our own process, and we're going to continue it," she said.
She added that the Constitution doesn't require a criminal conviction for impeachment.
The woman with whom Greitens had the 2015 affair also accused him of coercive and violent sexual misconduct beyond the allegations of blackmail.
In addition to the invasion-of-privacy charge, Greitens also was indicted on felony computer tampering last month over allegations he illegally obtained and used a donor list belonging to a veterans charity to raise money for his 2016 campaign. In a related accusation, the attorney general's office thinks Greitens knowingly filed false campaign finance disclosure reports to the Missouri Ethics Commission, a Class A misdemeanor.
A lawsuit in Cole County accuses the governor and his staff of using a self-destructing text message app to circumvent the state’s open records law. And Washington University and the John Templeton Foundation are investigating whether Greitens violated an agreement by allegedly using an academic grant to pay his political staff as he was planning his campaign for governor.
Rep. Kevin Engler, R-Farmington, said he's "not really" surprised because Gardner had "pretty well butchered it from the start."
In terms of impeachment, Engler said the decision to drop the case doesn't change anything. Greitens faces other allegations of illegal behavior beyond invasion of privacy, he said.
“Like I said, it shows he’s immoral," Engler said, "not that he’s done anything illegal in office.”
Those who believed the special session is a mistake saw Monday's news as vindication.
"It's important we wait and hear from both sides before moving forward," said Rep. Holly Rehder, R-Sikeston. "There is no reason for us to rush, since we can call ourselves into special session at any time."
Rehder was one of a handful of lawmakers who refused to sign a petition calling the legislature into special session to focus on the allegations of wrongdoing against Greitens. She said House Republicans will caucus Tuesday and likely discuss the situation.
Another Republican lawmaker who has been highly critical of the push for impeachment is Rep. Bill White, R-Joplin. He said Monday evening that it's premature for lawmakers to even be discussing impeachment.
"If you get a conviction, that's impeachable," White said, later adding: "I think the first charge, I would not consider it impeachment. If you don't have a picture, you have no proof. As bad as infidelity is, it's not a crime."
Johh Hancock, former Missouri GOP chairman, tweeted Monday that Greitens' public statement of vindication seemed premature.
"If you win Game 1 of the World Series because your opponent commits five errors, I would not recommend ordering Championship rings from the jeweler just yet," he said.
One option could be for the attorney general to take over as prosecutor.
When asked Monday night whether Attorney General Josh Hawley would consider taking on the role, Hawley's office said only that “the Missouri Office of Prosecution Services has established a protocol for identifying conflict counsel when a prosecutor is conflicted out of a case. As it does in every such case, the Attorney General’s Office will work with the Office of Prosecution Services and the court to see that this protocol is implemented and conflict counsel identified.”
Greitens did not take questions on the courthouse steps about what Monday's news means for the ongoing legislative investigation or his political future, but he offered some words of contrition for his actions while celebrating the legal victory.
"I am sorry for the pain that this process and my actions have caused my family and my friends and the people of Missouri," he said.
Here's the full text of Greitens' statement Monday:
Today, prosecutors dropped the false charges against me. This is a great victory and it has been a long time coming.
This experience has been humbling and I have emerged from it a changed man.
I think that in all of our lives we have to deal with pain and if we work through it in the right way, we can work through pain and find wisdom.
In all of our lives we have to deal with suffering. If we deal with suffering in the right way, we can emerge with strength. I also believe, as I think many people of faith do, that even in the hardest and most difficult situations, we can find tremendous blessings.
Above all, I am sorry for the pain that this process and my actions have caused my family, my friends and the people of Missouri.
I am also tremendously, tremendously grateful for the extraordinary courage and patience of family and friends and people of faith who have all recognized that in time comes the truth.
We have a great mission before us and at this time I would ask people of good will to come together so that all of us can continue to do good together. Thank you guys and God bless.