Attorney General Josh Hawley at the Federalist Society's Capitol Forum Jan. 23, 2017

JEFFERSON CITY, Mo. – Attorney General Josh Hawley is reportedly weighing a decision as to whether he should appoint a special investigator to look into the usage of the text app, Confide, by Governor Eric Greitens and his staff.

Last week, the Kansas City Star reported that the Republican freshman governor and his staff used the app, bringing about a number of questions concerning alleged transparency issues, as the app deletes messages and prevents saving, forwarding or screenshots.

Immediately after the news broke, Democratic Sen. Scott Sifton asked the Attorney General to investigate the matter.

On Monday, Hawley was asked about the matter, to which he replied that he can’t directly investigate Greitens, as he is representing the Governor’s Office in other legal cases. But he could appoint a special investigator and said he was looking at case law to determine whether to do so.

Hawley did say that his office’s policy and legal opinion is that text messages sent or received by state employees concerning the business of the state would fall under the Show-Me State’s open records law, but also said the “legal complexities are significant.”

In truth, Hawley’s comments reflect a potential issue with the law, because if Hawley were to investigate the matter, while also handling legal cases on behalf of the Governor, then the AG’s Office would be investigating their own client, and as such would be privy to knowledge or conversations with the client that a normal investigator would not be. It also would bring up questions of whether the client, in this case, the Governor’s Office, could trust the AG’s Office to defend them or conduct a fair investigation. In short, it seems the only route to ensure a fair investigation would be an independent appointment.

But if Hawley were to appoint a special investigator, and violations were found, would Hawley be able to sue the Governor?

The answer could be yes, as Missouri law states that the AG may sue other state officials if they have reason to believe the law was violated.

According to the Missouri Supreme Court in the matter of the State v. Planned Parenthood, 66 S.W.3d 16 (Mo. 20020):

“If the attorney general believes one of the other agency heads is unlawfully executing a statute, he has the tools to act on behalf of the state to seek judicial intervention.”

As attorney Chuck Hatfield explains, the reading of that particular ruling could be debated either way, but he tends to believe the opposite of Hawley on the matter.

“General Hawley has quoted this case for the proposition that the AG may not be adverse to the Governor. I don’t believe that is a correct reading. Planned Parenthood said that the AG may not represent both sides of the lawsuit,” Hatfield said. “The ruling is made clear in that case where the AG was suing to invalidate a contract entered into by the Department of Health while also defending the department of health. The Supreme Court did not say the AG was barred from suing the department. Indeed, they specifically said he could in the above quote and by telling the AG ‘To put it bluntly, the attorney general must choose a side regarding the legality of the contracts and act consistently with that position in court.’ Planned Parenthood says the AG may not represent both sides, but he may “choose a side” and sue state agencies if he believes they are acting illegally.”

In fact, a brief review of state history would reveal that the state’s attorney generals have investigated government officials when they have acted outside of their authority, even though they may have represented those officials in other matters.

The Supreme Court has ruled in those cases without ever hinting that the AG had a conflict. Here are a few examples:

  • State ex rel. Nixon v. Blunt, 135 S.W.3d 416 (Mo., 2004) AG suing Secretary of State
  • State ex inf. Nixon v. Moriarty, 893 S.W.2d 806 (Mo. 1995) AG suing Secretary of State
  • State ex inf. Danforth v. Merrell, 530 S.W.2d 209 (Mo., 1975) AG suing Several State Senators and the Commissioner of Administration

But, it seems that for now, the only thing to do is wait for Hawley’s decision, to which he promised an update soon.

Benjamin Peters is a reporter for the Missouri Times and Missouri Times Magazine, and also produces the #MoLeg Podcast. He joined the Missouri Times in 2016 after working as a sports editor and TV news producer in mid-Missouri. Benjamin is a graduate of Missouri State University in Springfield. To contact Benjamin, email or follow him on Twitter @BenjaminDPeters.