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Does the Governor have executive privilege?

   

JEFFERSON CITY, Mo. – The results of the Attorney General’s investigation may have vindicated Governor Eric Greitens and his office from the assertions made about their use of the Confide app, but the investigation has now raised some eyebrows about the powers of the Governor.

That’s because in the attorney general’s report, it stated that the Republican governor was not interviewed in the matter. The reasoning for this? His office was exercising the option to use executive privilege.

Loree Anne Paradise, spokeswoman for the attorney general’s office, told the Kansas City Star that the Governor’s Office asserted executive privilege before investigators were even in a position to even request an interview with Greitens.

But, that news left a number of longtime politicos and Governor Office staffers scratching their heads, wondering where the “executive privilege” provision came from.

“I didn’t know there was such a thing as executive privilege in Missouri law,” former Attorney General’s Office veteran Chuck Hatfield tweeted.

“I searched and wished for executive privilege when I was in the Governor’s office,” Jane Dueker, former Democratic chief of staff for Gov. Bob Holden, tweeted. “I guess I should have just made it up too.”

“Never heard of it either,” Brad Ketcher, former chief of staff to Gov. Mel Carnahan, replied on Twitter.

”Me either. On limited matters there was attorney-client privilege when the counsel was involved, but I never heard any reference to executive privilege,” Roy Temple, former Missouri Democratic Party chair and a former chief of staff to Gov. Mel Carnahan, tweeted.

The interesting part is that no one seems able to locate anything in Missouri statute discussing executive privilege. In fact, locating any mentions in Missouri Supreme Court cases, or an appeals court for that matter, seems to be near impossible. But there has been at least one instance in which a governor attempted to use executive privilege as a defense.

In 2008, former Gov. Matt Blunt cited executive privilege while asking the courts to dismiss a defamation and wrongful termination suit filed by former legal counsel Scott Eckersley. Jackson County Circuit Judge Michael Manners wrote in his ruling that allowing Blunt to use the executive privilege defense could help “mask official misconduct.”

Blunt appealed the judge’s decision in 2009, asking the appeals court to bar the defamation claim, with his legal team arguing that judicial precedent provides an absolute executive privilege against alleged defamatory remarks “made in a judicial, executive, or legislative proceeding.”

In the end, that lawsuit was settled, with Eckersley receiving about $500,000 from the state without any acknowledgement of wrongdoing.

Opponents of Greitens and Hawley alike point to the fact that the Attorney General’s Office did not push back upon the issue of whether the Governor could exercise executive privilege in this matter.

“He wasn’t even willing to challenge the Governor’s ability to hide behind ‘executive privilege.’ This wasn’t a real investigation,” Meira Bernstein, McCaskill’s spokeswoman, said in a statement. “How can any of his (Hawley’s) investigations be taken seriously after this?”

In short, it means there is little in terms of legal precedence to look to in the matter, and as such, is an issue that will eventually fall on the courts to decide.

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