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6 attorneys challenge Hawley's 'Confide' investigation

6 attorneys challenge Hawley's 'Confide' investigation

March 22nd, 2018 by Bob Watson in Local News

Six lawyers who used to work for state government — including two who served as judges — this week called Attorney General Josh Hawley's "Confide" report "unbelievable."

The six issued a four-page letter late Tuesday, saying they were "dismayed" at Hawley's "half-hearted investigation into Gov. Greitens' alleged use of 'Confide,'" which they defined as "a smartphone messaging app that automatically destroys text messages as soon as they are read and prevents recipients from preserving their contents."

The letter's six authors were identified as former Missouri Supreme Court Chief Justice Michael Wolff, who also served as chief counsel to Gov. Mel Carnahan; former Kansas City Appeals Court Judge Ronald Holliger, who later worked as general counsel for Attorney General Chris Koster; Bradley Ketcher, former counsel and chief of staff for Carnahan; and Andrew Hirth, Joanna Trachtenburg and Joe Bindbeutel, who all worked in the attorney general's office under either Koster or Jay Nixon.

Their political connections are Democratic, and Loree Ann Paradise — Hawley's chief of staff — said Wednesday: "It is deeply disappointing to see members of the Bar inject partisan politics into the work of the Attorney General's Office because they have an axe to grind."

However, Hirth said, "The common thread (among) the six signatories of our open letter is the competence and dedication of the public servants for whom we have worked rather than the political party to which they belonged."

The Kansas City Star reported last year that Greitens and some members of his senior staff were using the Confide application and some observers were concerned that using the app allowed the governor's office to get around the state's open records and records-retention laws.

After first saying there was a potential conflict, Hawley launched his own probe of the governor's use of the application, and assigned Deputy Counsel Darrell Moore to head it.

Moore's five-page report concluded, "While the use of Confide by GO (the governor's office) staff does not appear to have violated (the public records law) or the Sunshine Law, the AGO (attorney general's office) considers it a best practice not to use Confide to communicate regarding public business."

Moore told reporters during a 45-minute conference call Friday that he interviewed eight people on the governor's staff, but Greitens wasn't one of them.

He said five of those interviewed acknowledged using Confide on their personal phones, but only for "transitory" things that didn't require keeping a permanent record, such as scheduling a phone call or rescheduling a meeting.

The six letter-writers said, "For starters, the accounts of the eight 'high-level members' of the governor's staff are anything but believable. No reasonable person would use Confide to schedule meetings," because of the way Confide functions.

"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," the letter said.

"And why would anyone install a separate, super-secretive messaging app on his phone solely to schedule meetings while continuing to send regular text messages or email for everything else?"

Moore said last week his investigation found "nothing to indicate to us that there were any attempts by anyone to avoid keeping records they had to keep" under state law.

One of the issues raised in Moore's report was: "The GO asserted a blanket objection to all questions regarding communications between interviewees and the Governor based on the doctrine of executive privilege."

While Moore told reporters last week that Greitens' staff didn't formally assert "executive privilege there was discussion about the possibility of that."

However, the lawyers' letter said, "The attorney general should have done some legal research before accepting the governor's invocation of 'executive privilege.' No Missouri court has ever recognized the existence of executive privilege, and the two cases from other jurisdictions cited in the AGO's Final Report provide only limited protection for substantive communications between chief executives and their closest advisors."

Additionally, the six lawyers said Hawley and his staff don't seem to understand the attorney general's legal authority to "seek judicial enforcement" of Missouri's Sunshine Law.

Hawley's office is not representing Greitens in the Cole County case where St. Louis lawyer Ben Sansone has challenged the governor's use of Confide as a Sunshine Law violation.

"Hawley has the authority to intervene in the private Sunshine Law case pending against the governor or to file his own," the letter said. "Either course would allow him to obtain relevant documents from the governor's office and even question Gov. Greitens under oath."

Paradise told the News Tribune, "This Office has aggressively enforced the Sunshine law, including suits against multiple public bodies. But under current law, the office's investigative tools are limited, and that is why the attorney general has called upon the Legislature to give this office subpoena power for Sunshine investigations, as well as enhanced Sunshine penalties."