Josh Hawley defeats incumbent Claire McCaskill in Missouri Senate race
The former top aide to Missouri Attorney General Josh Hawley used the self-destructing text messaging app Confide while overseeing the operations of the attorney general’s office, a fact Hawley’s staff refused to address directly before Election Day.
Evan Rosell was Hawley’s chief of staff from January 2017 until March of this year, when he took a job with the Greater Wichita Partnership. Hawley was elected to the U.S. Senate on Nov. 6.
During Rosell’s tenure, the attorney general’s office launched an investigation into whether former Missouri Gov. Eric Greitens and his staff violated the state’s open records laws by using Confide — a smart-phone app that automatically erases a text message after it has been read.
Shortly after Rosell announced he was leaving the attorney general’s office, the Confide investigation concluded.
No one in the attorney general’s office ever disclosed the fact that Rosell had also used Confide.
While Rosell insists he never used the app for official business, the revelation raises questions about whether the attorney general’s office had a conflict of interest that should have kept it from ever getting involved in an investigation of Greitens.
“I would like to believe the people who are in charge of investigating legal violations are as forthright as possible with the public,” said David Roland, director of litigation with the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency.
“I would have liked to have known if any of the people in the attorney general’s office were engaging in the same types of behaviors that were being investigated in the governor’s office.”
Coupled with recent news that the chief of staff for Missouri Treasurer Eric Schmitt downloaded Confide, it also highlights how extensive the use of secret texting apps had become among state government employees.
“This just demonstrates how widespread the use of these techniques are, and the risk they pose to violating the Sunshine Law among government employees who swear to uphold the obligations they assume when they take those positions,” said Jean Maneke, attorney for the Missouri Press Association.
“All of this warrants a closer look by an independent party who has the ability to assess if acts that violate any law were taken,” Maneke said.
Rosell did not respond to calls, texts and emails from The Star leading up to and immediately following Election Day, when Hawley, a Republican, defeated incumbent U.S. Sen. Claire McCaskill, a Democrat.
A Star reporter asked Hawley in late October whether any of his senior staff had ever used Confide. He said he didn’t know but would find out.
In the weeks that followed, the attorney general’s office repeatedly refused to directly answer any questions from The Star regarding use of Confide by Hawley’s senior staff, including Rosell. Instead, Hawley’s spokeswoman sent a link to a Springfield News-Leader article acknowledging the office used another texting app called Signal.
Signal allows users to send encrypted texts and set timers on messages so they disappear, but auto-deletion of messages is not the default setting.
Reached at his office in Wichita on Thursday, Rosell said he used Confide only for a brief period of time but that he didn’t use it for business.
“Early last year I had the app on my phone,” he said. “I used it out of curiosity three or four times (but) never anything about governmental business or anything like that. My total use of it (was) probably less than an hour one night a long time ago, and I never discussed any kind of government business with anybody.”
He also said he didn’t know whether anyone else in Hawley’s office used Confide.
“Certainly nobody (was) using it for government related stuff or anything work-related or anything like that,” he said. “I personally never used it for anything like that and I don’t know anybody in the office that ever used the app like that at all.”
He said although he did use Confide and knew it was part of the investigation of the governor’s staff, he wasn’t involved in the investigation himself.
“I didn’t have anything to do with that investigation, nor did I communicate with anybody about that investigation,” he said.
“I may have mentioned to maybe one or two folks in the office that I had it for a brief period of time out of curiosity, but that’s it,” Rosell said. “I was working mostly on getting people hired in the office and getting budgets built and getting printing paper, you know, stuff like that.”
Hawley’s communications director, Mary Compton, issued the following statement Friday morning:
“Any use of the Confide app to conduct public business is a clear violation of office policy. Mr. Rosell has repeatedly represented to the Office that he did not use Confide to conduct public business.”
It would be difficult to say whether Hawley had a legal obligation to disclose staff use of Confide or recuse his office from any investigation, said Roland, of the Freedom Center.
To make that determination, Roland said he’d need to see the attorney general’s conflict of interest policy.
The Star requested a copy of that policy on Nov. 12. It has yet to be turned over.
Regardless of any legal obligation, Roland believes Hawley should have disclosed Rosell’s Confide use.
The use of Confide by Hawley’s top staffer could invite further criticism about Hawley’s probe into Confide use by the governor’s office.
The Star first revealed that Greitens and his staff were using Confide in early December 2017.
Transparency advocates feared Confide was being used by the governor’s office to destroy public records.
Hawley, who as attorney general enforces Missouri’s open records laws, initially declined to launch an investigation. Public pressure persuaded him to change course and assign a pair of investigators to look into the governor’s office.
Not long after the investigation began, the attorney general’s office amended its record retention policy to ban the use of self-destructing text message apps like Confide.
Hawley’s investigation ended on March 1. His investigators concluded there was no evidence of wrongdoing in the governor’s office, in part because Confide ensured there was no evidence.
The criticism over Hawley’s handling of the investigation began almost immediately.
For starters, the final report was released by the governor’s office, not the attorney general. And a text message obtained by The Star last month appears to show an employee of the governor’s office knew weeks ahead of time when the attorney general’s investigation would conclude and what the outcome would likely be.
Investigators with the attorney general’s office only questioned eight of Greitens’ staffers, and agreed to a demand by the governor’s office that interviews could only last 15 minutes.
Greitens was not among those who were interviewed.
The attorney general’s office never filed a formal request to the governor’s office demanding records pertaining to use of Confide. If it had, investigators would have likely discovered that nearly every member of Greitens’ staff had a Confide account.
Responding to a lawsuit against his office filed by a pair of St. Louis-area attorneys, Greitens eventually admitted in May that he used Confide to communicate with his taxpayer-funded staff.
The lawsuit also uncovered text messages that seem to show Greitens’ staff openly discussing the use of Confide to conduct public business not only among themselves but also with people outside the governor’s office.
Democrats have called Hawley’s inquiry a “sham,” arguing he was uninterested in investigating possible violations of state law by a fellow Republican.
Hawley has vehemently pushed back on the criticism, telling reporters shortly before the election that “we have shown no fear or favoritism toward anybody in the attorney general’s office.”
Open records questions
The questions around Confide have renewed concerns about Hawley’s decision to allow his campaign consultants to help run his official office.
Within weeks of Hawley’s swearing in as attorney general in 2017, the political team that would go on to run his U.S. Senate campaign stepped in to give direct guidance and tasks to Hawley’s taxpayer-funded staff. They also led meetings with official staff during work hours in the state Supreme Court building in Jefferson City, where the attorney general’s office is located.
Under Missouri law, elected officials can tap into their campaign cash to pay for expenses incurred in connection with their official duties. But both state and federal law prohibit any use of public funds for personal or political purposes.
Hawley, who will resign as attorney general in January to be sworn in as U.S. senator, has insisted the meetings with consultants were about public business and had nothing to do with his political campaign.
But instead of using their government-issued email to organize and discuss these meetings — which would automatically be subject to the state’s open records laws — Hawley’s taxpayer-funded staff used their personal email accounts.
In the waning days of the 2018 campaign Hawley refused to comment on why his government staff was using private email. His office eventually released a statement saying “our office policy is to retain all records required by law regardless of the medium of the communication.”
Among those using their private email in the attorney general’s office was Rosell. He deferred questions about the campaign meetings and use of private email to Hawley and his official staff.
“I can tell you this: We always complied with open-records laws,” he said. “Any kind of public record or anything that would fall under that, we made sure it was above board.”
Hawley is also one of two statewide elected officials in Missouri who do not use a government email address. In response to a request by The Star for copies of any emails sent or received by Hawley pertaining to public business using a private email address, the attorney general’s office said none existed.
The only other statewide official who does not use a government email address is Schmitt, the Republican treasurer who was recently appointed to replace Hawley as attorney general. The St. Louis Post-Dispatch has reported that Schmitt’s chief of staff downloaded the Confide app on his personal phone, but it is unclear how or if he used it.
Because Confide is designed to eliminate a paper trail, it is impossible to determine whether it was being used to conduct state business out of view of the public, or for personal and campaign purposes.
Self-destructing messages also mean there is no way to retain texts to decide whether they should be considered a public record.
Under state law, a record is any document or material, regardless of physical form or characteristics, made or received in connection with the transaction of official business, said Roland of the Freedom Center.
The Missouri attorney general office’s own record retention guidelines state that requirements to hold on to documents apply “with equal force to communications over new technological media, such as text messages and text-messaging applications.”
No record can be destroyed or disposed of, Roland said, unless it is determined that the record has no further administrative, legal, fiscal, research or historical value.
“If the law requires government officials to retain records pertaining to the public business,” he said, “you really shouldn’t be using an app or any other kind of program that allows those records to go away.”