The agreement to dismiss a felony computer-tampering charge against Eric Greitens included a secret provision in which the outgoing governor of Missouri admitted that prosecutors had enough evidence for the case to go to a jury.
Greitens agreed to resign as part of the agreement negotiated late last month with St. Louis Circuit Attorney Kimberly Gardner. Her office released the unredacted agreement late Wednesday.
The acknowledgment, which had been blacked out from a publicly released copy of the document, came to light following Sunshine Law requests from The Kansas City Star and other Missouri media outlets.
It is not an admission of guilt on Greitens’ part. But it means that Greitens, through his legal counsel, agrees that prosecutors had sufficient evidence to make the case "submissible" to a jury.
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Jack Garvey, an attorney for Greitens, called the stipulation a "worthless piece of paper."
"It has no legal basis, but we're lawyers, so if we can gain an advantage for our client, we'll take it," Garvey said.
The advantage in Greitens' case being the dropped charges.
"I would say that was a victory," Garvey said. "When you have charges dropped by a prosecutor in return for an agreement that you won't sue her, which means sue her personally, she trades her office for immunity from a lawsuit against her, which doesn't serve the citizens of St. Louis."
Wednesday's news was a startling revelation for Greitens, a Republican who has consistently described the legal peril he faced as nothing more than a politically motivated witch hunt by Gardner, a Democrat.
"It’s a significant concession and something that, especially given his public statements in the past, the public ought to know," said Jean Paul Bradshaw, a former U.S. attorney for western Missouri.
The tampering charge against Greitens, a felony, alleged that he illegally obtained a donor list from a veterans charity that he founded and later used it for political fundraising. Greitens denied wrongdoing.
It was the second felony that Greitens faced this year; Gardner had charged him with felony invasion of privacy stemming from an allegation that he took a compromising photo of a woman with whom he engaged in an extramarital affair. That case nearly went to trial, but was dropped during jury selection. Jackson County Prosecutor Jean Peters Baker was appointed special prosecutor in that case and is now deciding whether to re-file charges.
The agreement to dismiss the computer tampering case was filed in court on May 30, but there was no public judicial order requiring the redactions.
A second secret provision in the agreement states that Greitens’ acknowledgment — that there’s enough evidence of guilt to go to a jury — would be sealed from public view unless he committed a new offense, or made public comments that contradicted this acknowledgment.
Gardner wrote in a letter Tuesday to Greitens attorney Edward Dowd that Greitens "blatantly violated" that second provision when he said during his resignation speech that "I have not broken any laws or committed any offense that is worthy of this treatment."
Gardner's letter said that Greitens' statement meant she was no longer obligated to maintain confidentiality.
The agreement was contingent on Greitens submitting a letter of resignation to the Missouri secretary of state, a provision that already had been made public, along with another provision in which Greitens agreed to release Gardner, her office and any consultants from civil liability.
Greitens officially stepped down on Friday, making way for Lt. Gov. Mike Parson to replace him as governor.
In response to multiple Sunshine Law requests to release an unredacted copy of the agreement, Gardner's office had stated it believed the full document constituted an open record under Missouri law, but that Greitens' legal counsel strongly opposed its release.
On Friday, the day Greitens left office, an attorney for Greitens wrote in an email to Gardner that he was headed to see a St. Louis judge to stop the release of the unredacted agreement and threatened to ask the judge to hold Gardner in contempt.
Gardner then sought an opinion from Missouri's Republican Attorney General, Josh Hawley, on Friday, as to whether the agreement was a public record.
Hawley's office on Tuesday sent a letter back to Gardner, stating the attorney general's opinion that the agreement was an open record. The letter said a settlement agreement is a type of contract, and that contracts entered into by governmental entities — in this case, by the state's governor at the time and a publicly elected prosecutor — are exactly the type of documents intended to be made public under Missouri's Sunshine Law.
"Given the circumstances surrounding this matter, it is unlikely that any interests would clearly outweigh the public's strong interest in knowing the terms of the settlement agreement here," the letter said.
The real question now is how Greitens might react to to the agreement becoming public.
Brendan Roediger, law professor at St. Louis University, said the release of the unredacted document by Gardner's office could be a breach of the agreement because it violates the provision to seal Greitens' admission and not make it public unless specific conditions were met.
"In an agreement such as this, every provision is equally important and there's no what we would call 'non-material' portion of it," he said. "So a violation of any of the stipulations is a breach of the agreement."
But Gardner maintained that it was Greitens who breached the agreement with his resignation statement.
If a judge ordered the document released, that would be a different story, Roediger said.
Garvey declined to answer when asked if the release of the documents invalidated any agreement.
"I don't have an answer at this time," he said.
Defendants who pursue litigation against prosecutors face a high standard of evidence, legal experts said.
"Prosecutors are immune, anyway," said Jim Wyrsch, a civil and criminal defense attorney in Kansas City. "But there are some exceptions to that, like bad faith."