Hawley's office: 'Not unusual' that Greitens' lawyer monitored staff's Confide interviews

Attorney General Josh Hawley's office is continuing to defend its investigation into how Gov. Eric Greitens and his senior staff used Confide, a cellphone application that deletes messages after they are read.

A spokeswoman for Hawley reached out to the News-Leader on Monday to set up an interview Tuesday with an attorney in Hawley's office on the condition that the lawyer not be named.

This interview followed a 45-minute conference call Friday with several Missouri reporters and Darrell Moore, the former Greene County prosecutor who oversaw the Confide investigation. The investigation found no evidence of wrongdoing after accusations that Greitens and his staff may have been violated the Missouri Sunshine Law and state statutes on records retention.

Some of the governor's top aides admitted to using Confide to send messages related to public business but said the content was limited to topics like scheduling meetings. Missouri law does not require these kinds of transitory communications to be retained.

Initial report: No sign Greitens or his office broke law by sending self-destructing texts, Hawley says

More from Moore: Hawley's office didn't challenge Greitens' executive privilege claim, fearing backfire

The attorney general's office Tuesday downplayed concerns about conflicts of interest, pushed back against the notion that Hawley went easy on Greitens, and attempted to reframe Moore's comments about the legal doctrine of executive privilege

Courts outside Missouri have upheld the idea that communications among governors and presidents and their staff enjoy limited protection, but the Show-Me State does not have an obvious well-defined precedent.

Moore told reporters that Hawley's investigators didn't push to speak with Greitens personally for fear that an ensuing legal battle would lead to a court creating rules for executive privilege in Missouri. Investigators likewise didn't challenge more formal assertions of executive privilege on behalf of the government.

Greitens' office never formally invoked executive privilege for the governor himself but was more direct about asserting the doctrine for senior staffers regarding their communications with Greitens, Moore has said.

Hawley's office characterized investigators' logic differently Tuesday, saying that "looking carefully at the case law, we frankly did not think that we would prevail."

"I would not say he's wrong," Hawley's office said of Moore's comments, adding that "we did not feel like we had a vehicle to have a court decide questions of executive privilege here, whether we wanted to or not."

The Missouri Democratic Party and some other political observers have accused Hawley of going easy on Greitens, a fellow first-term Missouri Republican.

"It is abundantly clear that everything about Josh Hawley's Confide 'investigation' was simply a show designed to protect his ally and donor, Governor Greitens," said Brooke Goren, a spokeswoman for the Missouri Democrats, in a statement. "The fact that Hawley would allow a law firm defending Greitens to participate in this investigation shows just how far the Attorney General is willing to go to cover for the embattled Governor."

Gabriel Gore, an attorney for Dowd Bennett — the law firm also defending Greitens against a felony charge of invasion of privacy — was present while Hawley's investigators were quizzing several of Greitens' top aides, Moore has said previously.

But it was "not unusual" that Greitens staffers were accompanied by legal counsel due to the possibility of civil litigation, Hawley's office said Tuesday when asked about Dowd Bennett's presence.

Hawley's office said Tuesday that it understood that Dowd Bennett was representing the staffers individually as employees of the governor's office.

This does not quite align with the account given by Parker Briden, Greitens' press secretary.

"Dowd Bennett does not represent the Governor’s senior staff, nor has Dowd Bennett ever been 'on retainer,'" Briden told the News-Leader in an email, adding that "Dowd Bennett served as counsel to the official office beginning in December to assist the Office’s cooperation with the Attorney General’s inquiry. Until the inquiry concluded, Dowd Bennett also agreed to perform the initial work on behalf of the office in related litigation."

Gore appeared on behalf of Grietens and the governor's records custodian Jan. 23 and represented Greitens in the Confide lawsuit until mid-March, according to online court records. None of the senior staffers interviewed by Hawley are named in the suit.

"Now that the Attorney General has concluded that the Governor’s Office follows state Sunshine and records retention laws, Dowd Bennett has withdrawn from the matter and the office has retained the Bryan Cave law firm," Briden continued. "The Governor’s Office has not paid Dowd Bennett to represent the staff. Dowd Bennett’s only representation was of the official office, never to individuals in their personal capacities, and the firm stated publicly that it was performing those services without charge."

A Dowd Bennett partner and a personal lobbyist for Greitens did not respond to requests for comment.

The attorney general's office said Tuesday that its report may "help people get the target" for potential reforms to the state's records retention laws to improve government transparency. But Hawley's office has scant confidence in suing Greitens or the governor's office regarding Confide.

"We do not believe that we have a factual basis to file a lawsuit," Hawley's office said Tuesday.

Mark Pedroli, the lawyer for a St. Louis-area man suing Greitens over Confide use, said he was surprised to hear that Hawley's office didn't think the facts supported a lawsuit.

Pedroli also said that once Hawley's office realized it didn't want a precedent for executive privilege in Missouri, it should have recused itself due to a conflict of interest.

Pedroli added that Missouri's Sunshine Law, which was passed in 1973 amid the Watergate hearings, does not contain an exception for executive privilege. Part of his casework will involve preparing to argue against assertions of executive privilege, he said, but "we may be able to get around it, even if they assert it."

Given Hawley's complaint about not having subpoena power for the Confide probe, Pedroli said the attorney general should have waited until the discovery process in his lawsuit or filed a lawsuit of their own.

"I strongly believe that the attorney general's office should have filed a Sunshine petition early on, which would have given them the authority to do what they wanted," Pedroli said.

More: Gov. Greitens, allies still have Confide accounts following Capitol purge

Hawley's office said Tuesday that investigators thought "it was important for our inquiry to move as quickly as possible" in order to give deserved answers to the public. Figuring out how long Pedroli's lawsuit would take was "very difficult," and "it wasn't immediately obvious to us that that case would survive a motion to dismiss," according to Hawley's office.

Hawley's office also denied any conflict of interest related to executive privilege precedent and undercut Moore's previous comments that Hawley's investigators feared the possibility of an adverse court ruling.

"Even if that had been the mentality of the inquiry, I think that there was a distinct value of the work that the inquiry did," Hawley's office said. "I do think that the information we obtained was publicly valuable."

The interviews with Greitens' senior staff were conducted after Greitens denied blackmailing a woman with whom he had an affair and before the governor was indicted by a St. Louis grand jury.

Greitens has professed his innocence, slammed the media's coverage of his case and characterized his prosecution as liberal witch-hunting. He has never denied photographing the woman.

More: Amid criminal investigation, sex scandal, Gov. Greitens cites Breitbart and blames Soros

More: Gov. Greitens is no 'peeping tom,' his attorneys argue in motion to dismiss felony charge

Hawley's office has declined Sunshine Law requests by the News-Leader related to the Confide investigation on the grounds that documents such as transcripts of questioning or attorney's notes of interviews would constitute confidential legal work product, if such records existed.

The attorney general's office still has not named all of the Greitens staffers interviewed for the investigation who admitted to using Confide. A Hawley spokeswoman did not respond to written follow-up questions Tuesday about those names and possible conflicts of interest inherent in Greitens' legal tangles.

Also Tuesday, six attorneys who worked for either former Gov. Mel Carnahan or former Attorney General Chris Koster publicized an open letter in which they slammed Hawley's "halfhearted" and "unbelievable" investigation.

"The only thing more suspicious than the governor's secret communication system is our attorney general's apparent willingness to accept bogus legal arguments and implausible narratives from the Governor's Office," the six lawyers wrote. "We are left to wonder if Hawley is protecting the governor or is simply incompetent."

The attorneys — Andrew Hirth, Joanna Trachtenberg, Joe Bindbeutel, Bradley Ketcher, Ronald Holliger and Michael Wolff — questioned Hawley's willingness to believe that the governor's office would resort to such secrecy for communications about mundane matters like agreeing on a time for a meeting.

"It makes no sense to coordinate the time, date, and location of meetings through a messaging app that shows only a few words at a time and immediately deletes the message after one reading," wrote the group of former state employees, which includes a former Missouri Supreme Court justice and former appellate judge.

The letter also expresses confusion at why Hawley's office appeared to believe that messages about logistics would be protected under executive privilege, which they note has never been recognized in Missouri. And like Pedroli, the six attorneys say Hawley could have filed his own lawsuit in order to increase his access to Greitens, but "simply gave up" instead.

"When an Attorney General starts an investigation, the public interest requires that he finish it," the former lawyers for Democrats concluded. "Is this too hard for Hawley — who has degrees from Stanford and Yale — to understand?"