Secret Texting App Spurs Investigation of Missouri Governor

by | December 22, 2017

By Jason Hancock

Missouri Attorney General Josh Hawley has launched an investigation into whether Gov. Eric Greitens and his staff illegally destroyed public records by using an app that erases text messages.

News of the investigation comes nearly two weeks after The Star first revealed that the governor and his senior staff use Confide, an app that destroys a text message after it has been read. The app also prevents someone from saving, forwarding, printing or taking a screenshot of the text.

Hawley announced the investigation in a letter delivered Wednesday afternoon to state Sen. Scott Sifton, a St. Louis County Democrat who called for the attorney general's office to look into Greitens' use of Confide to determine whether it's being used to undermine the state's Sunshine Law and records retention law.

Later Wednesday in an interview with The Star, Hawley said his office will also look into recent accusations made by a GOP-aligned nonprofit that Missouri Auditor Nicole Galloway has not properly turned over text messages sent and received on her state-issued phone.

Both investigations will be led by Amy Haywood, section leader of the attorney general's consumer protection division, and Darrell Moore, deputy attorney general for criminal litigation.

Hawley said in his letter to Sifton that the attorney general's office "takes very seriously the mandates of transparency and open government" enshrined in the state's Sunshine Law.

"All Missourians," he wrote, "deserve a state government that is open, transparent and accountable."

The investigation into the governor's office is a major blow to Greitens, who last week dismissed The Star's report as a "nothing story that's come from a liberal media outlet that is just desperate for salacious headlines."

Neither Greitens nor his staff has challenged any details of The Star's reporting.

The governor has thus far largely ignored criticism of his use of the app, which was primarily coming from Democrats. But the optics of an investigation being launched by a fellow Republican are harder to shrug off.

Hawley and Greitens were both elected for the first time last year, and both are seen as rising stars in the Republican Party with ambitions beyond Missouri. Hawley is a candidate for U.S. Senate in 2018, and Greitens is widely believed to be laying the groundwork for a future White House bid.

Hawley promised that his investigation of Greitens would be "fully independent" and that the Republican governor "will be treated in exactly the same manner as anyone else that we'd come in contact with."

Parker Briden, Greitens' press secretary, said in an email to The Star that any records related to official business of state government that come into the possession of the governor's office staff are retained. Once a record is retained, Briden said, it may be subject to the Sunshine Law if it relates to public business and is not otherwise closed under state or federal law.

"We're confident that this review of our records retention policy will show that we follow the law," Briden said, later adding: "Our office policy is straightforward: we follow the law."

The accusations against the auditor stem from a lawsuit filed in July by Missouri Alliance for Freedom, a Kansas City-based nonprofit with ties to leaders of the state Republican Party. The group alleges Galloway is not complying with the state's Sunshine Law.

Galloway's office says it has worked to fully comply with Missouri Alliance for Freedom's records requests, including turning over more than 24,000 pages of documents at no charge. The lawsuit, Galloway has argued, is simply an attempt to intimidate a political rival.

"We are confident our office follows the Sunshine Law," said Steph Deidrick, Galloway's press secretary. "We welcome an unbiased review of the legal issues involved. If this process results in recommendations that would modernize the Sunshine Law, we would support those efforts."

 

Legal complexities

When news first broke about the governor's use of the app, Hawley expressed skepticism that his office could launch an investigation. He said at the time that the Missouri Supreme Court has previously ruled that the attorney general's office can't simultaneously represent a state officer or state agency and also take legal action against that state officer or agency.

But Hawley promised to continue studying the issue.

"The legal complexities are significant," he said last week, "but we are reviewing those carefully and as swiftly as possible."

In his letter to Sifton, Hawley concluded there is not conflict of interest that would prevent an investigation, and that the attorney general's clients are "first and foremost the citizens of the state."

"While my office currently represents the governor in ongoing litigation, it represents the governor in those other cases in his official capacity," he said. "The real party in interest in each of those cases, and the office's true client, is the State of Missouri."

In a statement to The Star, Sifton said he was "pleased to see the attorney general respond to two weeks of public pressure and move forward with an investigation. We must ensure transparency in our state's highest office."

The last time a similar issue arose was in 2007, when then-Attorney General Jay Nixon appointed a special investigative team to look into allegations that then-Gov. Matt Blunt was allowing his staff to destroy emails in violation of the state's open records laws.

Blunt eventually released 60,000 pages of emails as part of a settlement in a lawsuit initiated by two attorneys acting on behalf of Nixon's office and joined by several media organizations, including The Star.

The investigation officially came to a close in early 2009 -- after Blunt left office and was replaced as governor by Nixon -- when investigators released their final report that concluded Blunt's administration had wrongly deleted emails in violation of state law. But they did not refer the violations to prosecutors.

 

Shrouded in secrecy

The investigation into Greitens' use of a secret texting app caps a tumultuous first year in office for the governor, who has faced a barrage of criticism for habitually working to cloak the actions of his office in secrecy.

Members of his taxpayer-funded transition team were required to sign gag orders banning them from discussing their work publicly. Several key members of the transition team used private email addresses to conduct public business, and the governor's office has refused to make those emails public.

He broke with tradition when he refused to disclose how much lobbyists and corporations donated to fund his inaugural festivities. When responding to requests for public records, the governor's office often charges fees some argue could be illegal. The time it takes to turn over those records can stretch out for months, and in one instance more than a year.

The governor's proclivity for secrecy inspired a Washington, D.C.-based group tied to national Democrats to file a formal request this week with Hawley's office asking for an even broader investigation into Greitens' compliance with the Sunshine Law.

The American Democracy Legal Fund, which was founded by major Democratic Party fundraiser David Brock, is asking Hawley to determine whether the governor's office is violating state law by "failing to retain public records created through the use of private email and text messaging services, by refusing to disclose those records in response to records requests, and by imposing unreasonably high fees on those seeking access to records related to Gov. Greitens' administration."

The Star's Bryan Lowry contributed to this story.

(c)2017 The Kansas City Star (Kansas City, Mo.)