What to know ahead of Confide hearing on compelling answers from governor’s office

   

JEFFERSON CITY, Mo. — Two St. Louis attorneys are working to get answers that Attorney General Josh Hawley couldn’t into the use of a message-destroying app by former Gov. Eric Greitens and his staff.

In Cole County Court on Tuesday, counsel for the Office of the Governor and Ben Sansone — who filed the open records violation lawsuit against Greitens on behalf of the Sunshine Project — will argue a motion to compel. Mark Pedroli, Sansone’s lawyer, is seeking for force the Governor’s Office to answer what he calls “basic” questions into the use of Confide.  

The lawsuit alleges that by using Confide, a message-destroying app, the governor’s office may have violated the Missouri Sunshine Law. The alleged wrongdoing is for the duration of Greitens’ tenure as governor of the Show-Me State.

The lawsuit has already turned up more answers than Hawley’s investigation into the same matter. In open records investigations the Attorney General’s Office does not have to power of subpoena and is restrained by the willingness of the party being investigated to cooperate.

Eight of Greitens’ staffers were interviewed by the AGO with one having downloaded Confide on their state-issued phone — all had downloaded the app on their personal phone.  Three said they had never used the Confide app to discuss matters relating to their employment, but rather for private conversations. The other five stated that they had used Confide to discuss matters regarding their government employment, saying the nature of their usage of the app consisted of logistics and scheduling of meetings or phone calls.

In March, the AGO closed the investigation concluding that “Based on the records and materials available, the AGO has not identified any basis for concluding that the GO has violated Missouri law through the use of Confide by GO personnel.”

Hawley has said that if he office had the power of subpoena he would reopen the investigation.

Since then, Pedroli has been able to some answers regarding Greitens’ and his staff’s use of the message-destroying app.

Who has used Confide

Following Greitens’ resignation from office, Judge Jon Beetem moved to preserve potential evidence and sought some basic knowledge before a new administration was ushered in.

There were 15 current staffers and 4 former staffers of Greitens administration — and the Governor himself — who used Confide, according to documents submit on June 1, 2018.

Per a court order, Greitens submitted the names, phone numbers, and Confide account names of everyone, including the governor himself, who had downloaded and/or used Confide, stemming from a lawsuit filed back in December that alleged the Governor’s Office had used the app to get around the state’s open records laws.

The list of those with Confide included: Eric Greitens; Lucinda Luetkemeyer, general counsel; Justin Smith, deputy counsel; Kristen Sanocki, deputy counsel; Jake Buxton, deputy scheduler; Logan Spana, deputy policy director; Maddie McMillian, special assistant; Mike Roche, chief of staff; Nick Maddux, deputy chief of staff; Parker Briden, press secretary; Sherri Kempf, legislative assistant; Todd Scott, legislative and policy adviser; Will Scharf, policy director; Kevin Carr, staff assistant; Jennae Neustadt, director of management and budget; and Charlie Barnes, director of advance and outreach

The former staffers listed were Caleb Jones, former deputy chief of staff; Scott Turk, former directory of boards and commissions; Sarah Madden, former special counsel in charge of records requests; and Natalie Fryrear, former scheduler.

Subpoenas

Pedroli has said that he plans to subpoena Confide to determine when the app was downloaded and other potential information available. The message-destroying app has stated previously that Confide permanently deletes anything communicated and the company doesn’t not keep back ups.

The only information the subpoena to Confide will turn up is the date of download. Greitens has said to the best of his knowledge he downloaded the app sometime in 2016. Four of the staffers interviewed by the AGO said that they had started using the app prior to their employment in the Governor’s Office.

Eddy Justice has been subpoenaed in the lawsuit. Justice was among the former State Board of Education members who voted to fire the then-education commissioner.

He told the Springfield News-Leader on June 14 that he “never” used Confide to communicate with Greitens and said “there was never any official business done with Confide as far as I was concerned.”

Pedroli said that “we are in the process of issuing more subpoenas for at least 10 people in the Office of Governor.”

Defendant

Who the defendant is the case was got a little murky following the resignation of Greitens as Missouri’s Governor.

The lawsuit was filed against the Office of the Governor and Greitens in his official capacity. Greitens is no longer leading the state and Gov. Mike Parson resides in the Governor’s Mansion.

On June 6, Pedroli argued that the case is against the Office of the Governor and just because Greitens left the office doesn’t absolve him of any potential crimes he committed while in that office. There were no plans, as of June 6, to add Greitens, in his capacity as a citizen, to the lawsuit but Pedroli mentioned the Greitens is now a witness.

With Parson as the helm of Missouri’s government, the attorney representing the governor’s office now gets his direction from him.

On June 18, 2018, the defense filed a Motion for a Protective Order. It is unclear who the protective order is for.

Representing the state and cost to taxpayers

“At the request of the Office of the Governor” on January 5, 2018, the AGO appointed Jim Bennett to represent the defendants in Sansone v. Greitens.

“This appointment extends only to the representation of those defendants in connection with that pending litigation, and not to any other matter,” reads the letter of engagement.

“Pursuant to that policy’s provisions on staffing, we note that this appointment is of you personally and not an appointment of your firm.”

On March 12, 2018, Robert Thomas was appointed to represent the governor’s office, taking over for Bennett.

The letters of engagement for both attorneys confirm a “billing rate of one hundred forty dollars ($140.00) per hour.”

Following the public acknowledgement of an extramarital affair and the AGO became aware the Greitens had engaged Dowd Bennett in the personal matter, D. John Sauer, first assistant and solicitor in the AGO, sent a letter to Lucinda Luetkemeyer “emphasize[d] that the State Legal Fund will not cover any charges or expenses related to legal representation of the Governor in his personal capacity for personal matters.”

Bennett emailed Sauer, stating, “Our firm is representing the defendants in Sansone v. Greitens pro bono as a public service.”

Thomas has billed the state for 48 hours worth of time for his work during the month of March. The total, which was approved by the AGO, was $6,720.00.

Alisha Shurr is a reporter for the Missouri Times and Missouri Times Magazine. She joined the Missouri Times in January 2018 after working as a copy editor for her hometown newspaper in Southern Oregon. Alisha is a graduate of Kansas State University. Contact Alisha at alisha@themissouritimes.com.