Government & Politics

Are self-erasing messages at top of Missouri government the tip of the iceberg?

When news first broke last December about the use of the self-destructing text message app Confide in the governor’s office, the scandal appeared to be confined to a handful of people — former Gov. Eric Greitens and his closest advisers.

A year later, the list of known Confide users in Missouri government has grown alarmingly long, with the true extent of its use still an open question.

A lawsuit uncovered 27 members of Greitens staff who used Confide, which automatically deletes text messages once they are read.

The Star reported last week that Attorney General Josh Hawley’s former chief of staff, Evan Rosell, used it while overseeing the operations of the office that cleared Greitens of any wrongdoing. The St. Louis Post-Dispatch disclosed last month that chief of staff for the incoming state attorney general, Missouri Treasurer Eric Schmitt, also downloaded the app.

By deleting messages the moment they are read, Confide ensures text conversations vanish without a trace —a potential subversion of Missouri laws designed to make the inner workings of government open to public scrutiny.

Facing new scrutiny over Confide use in their offices, Hawley and Schmitt addressed the issue Thursday at a press briefing to discuss transition matters.

Hawley, a Republican who will resign Jan. 3 when he is sworn is as a U.S. Senator, said he didn’t know that his top aide used Confide.

“We have a policy in this office that says that Confide is not to be used for public business,” Hawley said, “and we take that seriously and expect everyone in this office to abide by it.”

Schmitt, a Republican appointed to replace Hawley as attorney general, was just as adamant that no one in government “should be using Confide for public business.”

“That is my position, and that will be my position in this office,” he said. “Confide is not something people should be using when they are elected to public office.”

Mark Pedroli, a St. Louis-area attorney who sued the governor’s office last year over the use of Confide, pointed out that “Greitens said the same thing” about Confide use by his staffers.

“They always add on the ‘for public business’ in their quotes and in their policies,” Pedroli said. “That’s the loophole. They allow it to be downloaded and used and then ask the public to just trust that they aren’t going to cross the line. The use of burner apps that are unable to retain communications permanently must be banned for all state officials on all phones and for all reasons.”

Pedroli worries the revelations about Confide use in state government over the last year could be just the tip of the iceberg. He’s become convinced his lawsuit is the best way to sort out just how widespread Confide use has become in state government.

But over and again, he says he’s run into a pair of roadblocks: Gov. Mike Parson and Hawley.

Parson’s attorneys, holdovers from the Greitens administration, continue to urge the judge in his case to dismiss the suit. And Pedroli said Hawley’s legal conclusion that cleared Greitens’ of wrongdoing in the Confide investigation has been weaponized against him in the courtroom.

Now that it’s known the top aides of three GOP statewide officials — Greitens, Hawley and Schmitt — all used Confide, Pedroli is calling on Parson to stop fighting his lawsuit in court and for Hawley and Schmitt to recuse themselves from “all burner app investigations.”

“Draining the swamp of secret, shredded, government communications is what our litigation is all about,” he said. “Holding government officials accountable is a critical component of preventing future violations.”

The Star first revealed use of Confide in Greitens office in early December 2017.

Hawley launched an investigation into whether the app was being used to destroy public records two weeks later. The inquiry consisted of interviews with eight Greitens staffers, but not Greitens.

Hawley’s office never filed a request for records pertaining to Confide use in the governor’s office.

The two-month inquiry ultimately concluded that there was no evidence of wrongdoing, in part because Confide ensured there was no evidence.

Pedroli’s lawsuit would later uncover that 27 members of the governor’s office, including Greitens himself, used Confide. Public records obtained by Pedroli show Greitens’ staff openly discussing use of the app to conduct public business not only among themselves but also with people outside the governor’s office.

The fact that Rosell used Confide during his 15 months as Hawley’s chief of staff was never disclosed.

Rosell said last week that he did not use Confide for public business. He said he might have told “one or two” people in the attorney general’s office that he had downloaded it, but he did not say whether Hawley knew.

When asked by The Star shortly before the election, Hawley said he didn’t know whether any of his taxpayer-funded staff had ever used Confide.

Asked again Thursday, Hawley insisted that he was never aware Rosell ever used Confide.

Pedroli said Hawley is either “concealing the truth or his chief of staff and a handful of additional senior staff were concealing it from Hawley. Sounds like we have a genuine question that requires an investigation.”

Hawley stood behind his investigation of Greitens on Thursday, saying “we found what we found with the tools we were able to use.” He noted he lacks subpoena power in Sunshine Law investigations, something he urged legislators to address to improve enforcement of open records laws.

Pedroli said the findings of Hawley’s Confide investigation are both factually wrong and marred by a possible conflict of interest, creating the appearance that the attorney general’s staff exonerated Greitens’ office to protect their own use of burner apps.

Parson took over the governorship after Greitens resigned in June. He banned the use of Confide in his office, but the attorneys defending the governor’s office against Pedroli’s lawsuit continue making the same arguments that the app doesn’t violate Missouri’s Sunshine Laws.

The legal tussling between Pedroli and the governor’s office culminated in June, when Cole County Circuit Judge Jon Beetem halted all discovery in the case.

Pedroli will ask the judge to reconsider that order next month and allow him to continue collecting evidence.

Parson’s spokesman, Steele Shippy, said the governor’s office is committed to government transparency.

“That’s why we banned the app,” he said. “We wanted to lead by example. But we don’t have the authority to tell someone they can’t have Confide on their personal device. We don’t have the legal authority to do that.”

Barbara Smith, one of the private attorneys defending the governor’s office in the lawsuit, said it’s unfortunate that the plaintiffs are “more focused on trying this case in the press and not inside the courtroom, which reveals the fact that they have zero legal argument to stand on. We are confident in the litigation moving forward and we have nothing to hide.”

Pedroli said the last time the governor’s attorneys said he had no chance in his case “they lost their motion to dismiss.” He added that “it’s “perfectly appropriate that an open records lawsuit over the use of burner apps in government is being extensively discussed in the media. Defendants should welcome the coverage, but they won’t.”

Michael Wolff, a retired judge of the Missouri Supreme Court and former dean of St. Louis University Law School, said the question is whether the use of Confide by Hawley’s chief of staff or other people in the attorney general’s office was unlawful.

“I’m not sure whether it’s a conflict of interest or whether two office holders’ offices disobeying the same law,” Wolff said. “The only way this gets fully investigated if at all would be through a private lawsuit … So the question is (Pedroli) going to expand his lawsuit to include the AG’s office. Otherwise, unless there’s a suit involving the office the AG and his staff don’t have to answer any questions.”

Hawley seemed to agree with Wolff on Thursday, telling reporters that because of his office’s lack of subpoena power in Sunshine Law investigations “civil litigants often have more authority and tools at their disposal than this office.”

A bill introduced during the 2018 legislative session by Rep. Gina Mitten, D-St. Louis County, would have banned state employees from conducting public business using software designed to send encrypted messages that automatically self-destruct.

It was never given a hearing or referred to committee, but Mitten said she plans to re-file the bill in 2019.

Schmitt said he hasn’t seen the bill so he can’t comment on it specifically, but “I don’t have any problem with that becoming law or policy.”

Jonathan Groves, president of the nonprofit Missouri Sunshine Coalition, said he hopes there will be hearings about Confide and other such apps as the legislature considers strengthening the state’s open records laws.

”The Sunshine Law has not really kept up with technology,” Groves said, “and this is one of the cases where we need to say: Will the legislature step up and look at this law and how we can beef up the law so that it can keep up with technology? … There’s not an easy solution to this but there’s a broader conversation that needs to be had, and the legislature is a place where that could happen.”