Were ex-Gov. Gre­it­ens’ self-eras­ing mes­sages just the tip of the ice­berg?

The Kansas City Star - - Local - BY LIND­SAY WISE AND JA­SON HAN­COCK [email protected]­clatchydc.com jhan­[email protected]­star.com

When news first broke last De­cem­ber about the use of the self-de­struc­t­ing text mes­sage app Con­fide in the gov­er­nor’s of­fice, the scan­dal ap­peared to be con­fined to a hand­ful of peo­ple — for­mer Gov. Eric Gre­it­ens and his clos­est ad­vis­ers.

A year later, the list of known Con­fide users in Mis­souri gov­ern­ment has grown alarm­ingly long, with the true ex­tent of its use still an open ques­tion.

A law­suit un­cov­ered 27 mem­bers of Gre­it­ens staff who used Con­fide, which au­to­mat­i­cally deletes text mes­sages once they are read.

The Star re­ported last week that At­tor­ney Gen­eral Josh Haw­ley’s for­mer chief of staff, Evan Rosell, used it while over­see­ing the op­er­a­tions of the of­fice that cleared Gre­it­ens of any wrong­do­ing. The St. Louis Post-Dis­patch dis­closed last month that chief of staff for the in­com­ing state at­tor­ney gen­eral, Mis­souri Trea­surer Eric Sch­mitt, also down­loaded the app.

By delet­ing mes­sages the mo­ment they are read, Con­fide en­sures text con­ver­sa­tions van­ish with­out a trace —a po­ten­tial sub­ver­sion of Mis­souri laws de­signed to make the in­ner work­ings of gov­ern­ment open to pub­lic scru­tiny.

Fac­ing new scru­tiny over Con­fide use in their of­fices, Haw­ley and Sch­mitt ad­dressed the is­sue Thurs­day at a press brief­ing to dis­cuss tran­si­tion mat­ters.

Haw­ley, a Repub­li­can who will re­sign Jan. 3 when he is sworn is as a U.S. Senator, said he didn’t know that his top aide used Con­fide.

“We have a pol­icy in this of­fice that says that Con­fide is not to be used for pub­lic busi­ness,” Haw­ley said, “and we take that se­ri­ously and ex­pect every­one in this of­fice to abide by it.”

Sch­mitt, a Repub­li­can ap­pointed to re­place Haw­ley as at­tor­ney gen­eral, was just as adamant that no one in gov­ern­ment “should be us­ing Con­fide for pub­lic busi­ness.”

“That is my po­si­tion, and that will be my po­si­tion in this of­fice,” he said. “Con­fide is not some­thing peo­ple should be us­ing when they are elected to pub­lic of­fice.”

Mark Pe­droli, a St. Louis-area at­tor­ney who sued the gov­er­nor’s of­fice last year over the use of Con­fide, pointed out that “Gre­it­ens said the same thing” about Con­fide use by his staffers.

“They al­ways add on the ‘for pub­lic busi­ness’ in their quotes and in their poli­cies,” Pe­droli said. “That’s the loop­hole. They al­low it to be down­loaded and used and then ask the pub­lic to just trust that they aren’t go­ing to cross the line. The use of burner apps that are un­able to re­tain com­mu­ni­ca­tions per­ma­nently must be banned for all state of­fi­cials on all phones and for all rea­sons.”

Pe­droli wor­ries the rev­e­la­tions about Con­fide use in state gov­ern­ment over the last year could be just the tip of the ice­berg. He’s be­come con­vinced his law­suit is the best way to sort out just how wide­spread Con­fide use has be­come in state gov­ern­ment.

But over and again, he says he’s run into a pair of road­blocks: Gov. Mike Par­son and Haw­ley.

Par­son’s at­tor­neys, holdovers from the Gre­it­ens ad­min­is­tra­tion, con­tinue to urge the judge in his case to dis­miss the suit. And Pe­droli said Haw­ley’s le­gal con­clu­sion that cleared Gre­it­ens’ of wrong­do­ing in the Con­fide in­ves­ti­ga­tion has been weaponized against him in the court­room.

Now that it’s known the top aides of three GOP statewide of­fi­cials — Gre­it­ens, Haw­ley and Sch­mitt — all used Con­fide, Pe­droli is calling on Par­son to stop fight­ing his law­suit in court and for Haw­ley and Sch­mitt to re­cuse them­selves from “all burner app in­ves­ti­ga­tions.”

“Drain­ing the swamp of se­cret, shred­ded, gov­ern­ment com­mu­ni­ca­tions is what our lit­i­ga­tion is all about,” he said. “Hold­ing gov­ern­ment of­fi­cials ac­count­able is a crit­i­cal com­po­nent of pre­vent­ing fu­ture vi­o­la­tions.”

The Star first re­vealed use of Con­fide in Gre­it­ens of­fice in early De­cem­ber 2017.

Haw­ley launched an in­ves­ti­ga­tion into whether the app was be­ing used to de­stroy pub­lic records two weeks later. The in­quiry con­sisted of in­ter­views with eight Gre­it­ens staffers, but not Gre­it­ens.

Haw­ley’s of­fice never filed a re­quest for records per­tain­ing to Con­fide use in the gov­er­nor’s of­fice.

The two-month in­quiry ul­ti­mately con­cluded that there was no ev­i­dence of wrong­do­ing, in part be­cause Con­fide en­sured there was no ev­i­dence.

Pe­droli’s law­suit would later un­cover that 27 mem­bers of the gov­er­nor’s of­fice, in­clud­ing Gre­it­ens him­self, used Con­fide. Pub­lic records ob­tained by Pe­droli show Gre­it­ens’ staff openly dis­cussing use of the app to con­duct pub­lic busi­ness not only among them­selves but also with peo­ple out­side the gov­er­nor’s of­fice.

The fact that Rosell used Con­fide dur­ing his 15 months as Haw­ley’s chief of staff was never dis­closed.

Rosell said last week that he did not use Con­fide for pub­lic busi­ness. He said he might have told “one or two” peo­ple in the at­tor­ney gen­eral’s of­fice that he had down­loaded it, but he did not say whether Haw­ley knew.

When asked by The Star shortly be­fore the elec­tion, Haw­ley said he didn’t know whether any of his tax­payer-funded staff had ever used Con­fide.

Asked again Thurs­day, Haw­ley in­sisted that he was never aware Rosell ever used Con­fide.

Pe­droli said Haw­ley is ei­ther “con­ceal­ing the truth or his chief of staff and a hand­ful of ad­di­tional se­nior staff were con­ceal­ing it from Haw­ley. Sounds like we have a gen­uine ques­tion that re­quires an in­ves­ti­ga­tion.”

Haw­ley stood be­hind his in­ves­ti­ga­tion of Gre­it­ens on Thurs­day, say­ing “we found what we found with the tools we were able to use.” He noted he lacks sub­poena power in Sun­shine Law in­ves­ti­ga­tions, some­thing he urged leg­is­la­tors to ad­dress to im­prove en­force­ment of open records laws.

Pe­droli said the find­ings of Haw­ley’s Con­fide in­ves­ti­ga­tion are both fac­tu­ally wrong and marred by a pos­si­ble con­flict of in­ter­est, cre­at­ing the ap­pear­ance that the at­tor­ney gen­eral’s staff ex­on­er­ated Gre­it­ens’ of­fice to pro­tect their own use of burner apps.

Par­son took over the gov­er­nor­ship after Gre­it­ens re­signed in June. He banned the use of Con­fide in his of­fice, but the at­tor­neys de­fend­ing the gov­er­nor’s of­fice against Pe­droli’s law­suit con­tinue mak­ing the same ar­gu­ments that the app doesn’t vi­o­late Mis­souri’s Sun­shine Laws.

The le­gal tus­sling be­tween Pe­droli and the gov­er­nor’s of­fice cul­mi­nated in June, when Cole County Cir­cuit Judge Jon Beetem halted all dis­cov­ery in the case.

Pe­droli will ask the judge to re­con­sider that or­der next month and al­low him to con­tinue col­lect­ing ev­i­dence.

Par­son’s spokesman, Steele Shippy, said the gov­er­nor’s of­fice is com­mit­ted to gov­ern­ment trans­parency.

“That’s why we banned the app,” he said. “We wanted to lead by ex­am­ple. But we don’t have the au­thor­ity to tell some­one they can’t have Con­fide on their per­sonal de­vice. We don’t have the le­gal au­thor­ity to do that.”

Bar­bara Smith, one of the pri­vate at­tor­neys de­fend­ing the gov­er­nor’s of­fice in the law­suit, said it’s un­for­tu­nate that the plain­tiffs are “more fo­cused on try­ing this case in the press and not inside the court­room, which re­veals the fact that they have zero le­gal ar­gu­ment to stand on. We are con­fi­dent in the lit­i­ga­tion mov­ing for­ward and we have noth­ing to hide.”Pe­droli said the last time the gov­er­nor’s at­tor­neys said he had no chance in his case “they lost their mo­tion to dis­miss.” He added that “it’s “per­fectly ap­pro­pri­ate that an open records law­suit over the use of burner apps in gov­ern­ment is be­ing ex­ten­sively dis­cussed in the me­dia. De­fen­dants should wel­come the cov­er­age, but they won’t.”Michael Wolff, a re­tired judge of the Mis­souri Supreme Court and for­mer dean of St. Louis Univer­sity Law School, said the ques­tion is whether the use of Con­fide by Haw­ley’s chief of staff or other peo­ple in the at­tor­ney gen­eral’s of­fice was un­law­ful.

“I’m not sure whether it’s a con­flict of in­ter­est or whether two of­fice hold­ers’ of­fices dis­obey­ing the same law,” Wolff said. “The only way this gets fully in­ves­ti­gated if at all would be through a pri­vate law­suit … So the ques­tion is (Pe­droli) go­ing to ex­pand his law­suit to in­clude the AG’s of­fice. Other­wise, un­less there’s a suit in­volv­ing the of­fice the AG and his staff don’t have to an­swer any ques­tions.”

Haw­ley seemed to agree with Wolff on Thurs­day, telling re­porters that be­cause of his of­fice’s lack of sub­poena power in Sun­shine Law in­ves­ti­ga­tions “civil lit­i­gants of­ten have more au­thor­ity and tools at their dis­posal than this of­fice.”

A bill in­tro­duced dur­ing the 2018 leg­isla­tive ses­sion by Rep. Gina Mit­ten, D-St. Louis County, would have banned state em­ploy­ees from con­duct­ing pub­lic busi­ness us­ing soft­ware de­signed to send en­crypted mes­sages that au­to­mat­i­cally self-de­struct.

It was never given a hear­ing or re­ferred to com­mit­tee, but Mit­ten said she plans to re-file the bill in 2019.

Sch­mitt said he hasn’t seen the bill so he can’t com­ment on it specif­i­cally, but “I don’t have any prob­lem with that be­com­ing law or pol­icy.”

Jonathan Groves, pres­i­dent of the non­profit Mis­souri Sun­shine Coali­tion, said he hopes there will be hear­ings about Con­fide and other such apps as the leg­is­la­ture con­sid­ers strength­en­ing the state’s open records laws.

“The Sun­shine Law has not re­ally kept up with tech­nol­ogy,” Groves said, “and this is one of the cases where we need to say: Will the leg­is­la­ture step up and look at this law and how we can beef up the law so that it can keep up with tech­nol­ogy? … There’s not an easy so­lu­tion to this but there’s a broader conversation that needs to be had, and the leg­is­la­ture is a place where that could hap­pen.”

‘‘ THE SUN­SHINE LAW HAS NOT RE­ALLY KEPT UP WITH TECH­NOL­OGY. Jonathan Groves, Mis­souri Sun­shine Coali­tion

State Trea­surer Eric Sch­mitt, left, and At­tor­ney Gen­eral Josh Haw­ley, mid­dle, are at the cen­ter of the con­tro­versy over the use of the Con­fide text mes­sag­ing app.

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