ST. LOUIS _ Circuit Attorney Kim Gardner's office alleged Friday in a new filing that Missouri Gov. Eric Greitens used a message-destroying smartphone app "to engage in criminal behavior" that led to the invasion of privacy indictment against him.
The motion filed Friday alleges a conflict of interest in the St. Louis-based Dowd Bennett law firm's representation of Greitens and other "state actors" in a lawsuit over the Greitens' administration's use of Confide, a secret messaging app, to conduct public business.
The "Confide software application is at the center of both matters," Gardner's filing says. Greitens' "use of Confide, Signal and/or other similar applications to engage in criminal behavior is alleged in the indictment."
The request to disqualify Dowd Bennett includes the prosecution's first public mention of secret messaging apps in connection with the invasion of privacy case.
Dowd Bennett announced March 12 that it had withdrawn from Greitens' civil case involving the Confide app but would continue representing him in the invasion of privacy case stemming from an extramarital affair in 2015.
The firm withdrew after Attorney General Josh Hawley issued a report saying Greitens and his staff did not violate state records laws while using the secretive app. Employees in the governor's office admitted using the app, but said they didn't send any documents that needed to be saved under the state's open records laws. The app deletes texts after they are read and blocks someone from forwarding or taking screen shots of them. Photos can be used on the Confide app, according to information on the app's website.
In a prepared statement, defense lawyer Ed Dowd denied a conflict of interest, saying, "On Jan. 11, the attorney general confirmed notice of the issue and consulted with us by email about how to handle the two matters. This was resolved by satisfying the attorney general that the state would not be billed additional amounts based on the two matters. The state has at all times been aware of this situation and the circuit attorney's maneuver in raising it now reflects on the motion's lack of support and a certain level of desperation."
The filing, written by Harvard professor Ronald S. Sullivan, a special prosecutor in the case, claims the firm "knowingly engaged" in a conflict of interest for more than two months.
"They represented the state, with access to all of the state's resources and knowledge about Confide, while, at the same times, defendant's use of Confide to engage in activity, in violation of Missouri law, is a key issue in the instant case," Sullivan wrote.
Sullivan wrote that Dowd Bennett's withdrawal from the Confide case "indicates his understanding of the existence of a conflict of interest and his inability to satisfy his ethical obligations to both clients."
He argued that Greitens' lawyers, if allowed to continued, might be required to cross-examine state witnesses about the app, which would amount to "dual representation" prohibited by law.
"In the course of representing the state," Sullivan wrote, the firm "received confidential information regarding Confide," which the firm "is now using to press interests antagonistic to the state."
Greitens' defense team has previously sought to have Sullivan removed from the case, accusing Gardner of breaking the law by hiring outside counsel who is also a defense lawyer.
Greitens was indicted by a St. Louis grand jury Feb. 22 on a charge that he took a nude or semi-nude photo of his bound lover during a consensual sexual encounter at his Central West End home in 2015 before he became governor. He is accused of transmitting a compromising picture "in a manner that allowed access to that image via a computer."
The governor has been accused of threatening to release the photo if she ever mentioned his name; he has admitted the affair but has denied blackmailing her.
The prosecution has said it does not have the picture allegedly taken but vowed to obtain it. In a deposition this week at St. Louis Circuit Court, Gardner's lead private investigator William Don Tisaby said he hadn't seen the photo, hadn't found evidence of its transmittal and knew of no one seeking to find such evidence.
Greitens' trial is set for May 14 before St. Louis Circuit Judge Rex Burlison.
On Monday, the judge will hear arguments on a defense motion to dismiss the indictment on claims Gardner's First Assistant Circuit Attorney Robert Steele misled the grand jury on the elements of the crime.
It is unclear if the judge would take up two other pending motions: one by the woman's ex-husband to quash a subpoena from the governor's legal team requiring the ex-husband to be deposed; another by news organizations seeking to have cameras in the courtroom.
