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Greitens team continues to demand cross-examination

Greitens team continues to demand cross-examination

May 27th, 2018 by Bob Watson in Missouri News

Missouri Gov. Eric Greitens held a news conference Wednesday, April 11, 2018, in his Capitol office in Jefferson City ahead of the House investigatory report released shortly afterward.

Photo by Julie Smith /News Tribune.

On Tuesday morning, the House special committee investigating Gov. Eric Greitens' legal situation will begin the second full week of the Legislature's self-called, 30-day special session, with a public interview of Michael Hafner, a former official of Greitens' election campaign who previously testified during a closed meeting in March.

And, under the rules the committee has adopted for its meetings, only the 10 committee members are allowed to ask questions.

That policy doesn't sit well with the lawyers who represent the governor or the governor's office.

Each day the panel met last week, one or more of those attorneys complained to reporters — and to the committee — that they're not being allowed to cross-examine the committee's witnesses.

"When you cross-examine, that's when you find out what the truth is, I think," former U.S. Attorney Edward Dowd told reporters Tuesday.

Dowd, of St. Louis, is one of several lawyers representing Greitens personally in the criminal cases that have been filed against the governor in St. Louis — including the felony invasion of privacy case lodged by a grand jury Feb. 22 but dropped by St. Louis Circuit Attorney Kim Gardner, after Judge Rex Burlison ruled Greitens' lawyers could call her as a defense witness.

Burlison last week assigned Jackson County Prosecutor Jean Peters Baker to serve as a special prosecutor in the case, to determine if the charge should be refiled.

Ross Garber, a Washington, D.C.-based attorney, is one of two lawyers hired by the governor's office, to represent Greitens in his official capacity and the governor's office.

He also told reporters last Tuesday: "I think all the office of the governor is looking for is a process that gets to the truth, and does it in a reliable and open way.

"Normally, the way that happens is to take testimony in public, subject to cross-examination, with participation by both sides of an issue."

Eddie Greim, of Kansas City, is the other lawyer hired by the governor's office to represent the office and Greitens.

Greim told reporters Thursday: "We have spurts of interesting theater — where people read from transcripts or witnesses lose their cool — but we don't actually have a really close and hard scrutiny of the facts and a digging for the truth.

"That's what this is supposed to be."

House Speaker Todd Richardson, R-Poplar Bluff, created the seven-member committee in late February, just days after the St. Louis grand jury indicted Greitens in the invasion of privacy case — accusing him of taking a picture of his mistress while she was in the basement of the then-future governor's St. Louis home, without her permission and while she was at least partially nude.

Richardson added three more members to the committee as it continued its work as the focus of the special session.

He said last week: "The House of Representatives has a duty as a separate and co-equal branch of government to conduct a fair and thorough investigation of the facts in the same manner we would with any legislative proceeding.

"Furthermore, the rules the investigation is operating under have been unanimously adopted by the committee and are the product of bipartisan discussion by House members who have been duly elected to represent the best interests of the people of Missouri."

When asked last week about the Legislature's normal committee process, Dowd said: "I think that's true, generally, in a legislative hearing where you're information gathering (and) it's not really an adversarial process.

"This really is an adversarial situation and I think, in those circumstances, you should have a right to cross-examine and bring out the things that are inconsistent with the story that we've been told."

Some have argued the committee process is similar to a grand jury — where attorneys don't have the right to cross-examine those appearing before it.

But, Garber said: "It is not the equivalent of a grand jury.

"We're talking about potentially throwing out (the results of) an election (and) throwing out almost 1.5 million votes — for that to happen, for that process to even begin, it has to be set up in a fair and open way."

In its 1994 ruling convicting then-Secretary of State Judi Moriarty of the impeachment charges leveled by the House, resulting in her removal from office, the Missouri Supreme Court wrote: "An impeachment is thus a judgment by the House of Representatives that an officer of the state has committed acts such that, were an election held, the people would not permit the impeached officeholder to remain in office."

Richardson said: "Just as we see in every other committee hearing, the members of the investigative committee are the ones responsible for questioning witnesses and gathering the facts.

"This process has worked well for decades in writing laws that all Missourians follow, and is unquestionably effective in obtaining the information necessary to discern the truth."

Still, the governor's lawyers said the committee wasted its time last week when it spent hours reading into its record from transcripts of both the grand jury testimony and the deposition testimony — taken by the governor's lawyers — of the woman identified as K.S. in the St. Louis court documents and as "Witness One" in the House committee's records.

K.S. is the governor's former hairdresser who's been identified as Greitens' mistress for more than six months, beginning in March 2015, before he launched his ultimately successful campaign for governor.

He has admitted having an affair but has denied doing anything that violated criminal laws.

Greitens' lawyers said last week it would have been easier for the committee to call K.S. — who testified before the committee in a closed-door meeting at the Jefferson City Police Station in March — back for another appearance in an open committee hearing where Greitens' lawyers could cross-examine her.

Rep. Jay Barnes, R-Jefferson City and chairman of the House Special Investigative Committee on Oversight, noted the transcripts read last week mostly involved the questions the governor's lawyers already had asked — in essence, their cross-examination.

Barnes reminded committee members Friday that the woman already has testified at least a half-dozen times, and she's been subpoenaed to visit with the committee again on June 5.

Missouri Times publisher Scott Faughn told the committee Wednesday he'd given St. Louis attorney Al Watkins, who represents the woman's now ex-husband, $100,000 so he could have access to recordings the ex-husband secretly had made, for a book he's writing about Missouri politics during the last three years.

Watkins told the committee on Thursday the money was to be used to pay the ex-husband's legal expenses.

Greim told reporters the committee had not asked for nor subpoenaed enough information.

"Why (couldn't) the (committee's) subpoena have asked for bank records (and) phone records (and) we could have cleared all of this up?" he asked. "Instead, we have another day of theater and interesting questions, without the tools to actually hold the witness to the truth."

But, Barnes said Friday, the committee is searching for the truth.

"From the very first day this committee was formed, it has endeavored to find out the truth, the whole truth and nothing but the truth," Barnes said. "Since that first day, Mr. Dowd has promised to cooperate."

But instead, he noted, Dowd and the governor's other lawyers have tried to block subpoenas and haven't provided information.

Barnes said Friday: "We need documents, not stonewalling, from Mr. Dowd.

"We need Mr. Greitens to appear and testify, under oath, before this committee."

Greitens has been subpoenaed to appear June 4.

When asked last week — before Barnes announced the subpoena and hearing date — whether the governor would appear before the House committee, Dowd told reporters: "That's something we're going to decide as we go along."

Barnes said Friday: "There have been reports that (Greitens) has been talking to members of the House about various events.

"And if he is capable of doing that, he is capable of coming to this committee and testifying under oath."

Some committee members have complained during open meetings that the governor's lawyers' demands for cross-examination rights and a more-open process are just an effort to slow down the committee's work.

Co-chair Don Phillips, R-Kimberling City, noted Friday: "As the committee knows, for 28 years I was a (Missouri Highway Patrol) trooper, and I had the opportunity to question a number of witnesses — if not thousands through the years, certainly hundreds and hundreds.

"It's always been my observance that those that don't have anything to hide are more than willing to speak with you.

"Those that do have something to hide are very reluctant to speak to you."

Barnes said: "If one side refuses to participate and refuses to provide any documents pursuant to lawful subpoenas that were sent to them, we're going to proceed without them — because that's all we can do."