ST. LOUIS • Attorneys for Missouri Gov. Eric Greitens contacted St. Louis prosecutors on Saturday, proposing that he would resign from office if Circuit Attorney Kim Gardner would drop a felony charge against him.
Both moves came to fruition this week, with the governor’s abrupt announcement Tuesday that he’d leave office by the end of the week, and Gardner’s agreeing to drop the computer tampering charge he faced in St. Louis.
Gardner, a Democrat, announced the dismissal Wednesday in a news conference at the Carnahan Courthouse in St. Louis. Her office had charged Greitens, a Republican, on April 20 with illegally using a donor list from Greitens’ former charity for political fundraising toward his 2016 campaign for governor. Greitens, a former Navy SEAL, founded the nonprofit, The Mission Continues, in 2007.
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“It is time for us to move on,” Gardner said, adding later: “I remain confident that we have the evidence required to pursue charges against Mr. Greitens. But sometimes, pursuing charges is not the right or just thing to do for our city or state.”
In dismissing the case, Gardner noted that first-time offenders, particularly in nonviolent cases, rarely serve prison time. Gardner would not answer questions from reporters Wednesday.
After her news conference, her spokeswoman Susan Ryan said Greitens’ defense attorneys approached prosecutors on Saturday about an agreement and initiated the idea that he would resign if Gardner dropped the charge.
Circuit Judge Rex Burlison accepted on Wednesday a stipulation for dismissal from both sides. Afterward, defense attorney Jim Martin said Greitens’ decision to resign was a personal one and did not stem from fear of being prosecuted for computer tampering.
Once Greitens leaves office, the case will be dismissed officially — with prejudice — which means it cannot be refiled. Martin declined to comment on the substance of the agreement.
Burlison released copies of the agreement Wednesday. Two paragraphs of the agreement are redacted, and neither side would comment on the contents of those sections. Ryan said defense attorneys requested the sealing. Martin said that although defense attorneys agreed to making the sections secret, the idea had come from prosecutors.
The remainder of the agreement releases Gardner “and all members of her office and consultants of her office from any civil liability on account of matters alleged” in both the invasion of privacy and computer tampering cases. The agreement also “waives any claim to court costs not already taxed in either cause.”
Ryan would not comment on whether Greitens admitted any wrongdoing or made any apology. An attorney for the woman who accused Greitens of taking a picture of her while she was nude or semi-nude said she had received no apology from Greitens.
Ryan said there was no coordination with Jackson County Prosecutor Jean Peters Baker, who was named a special prosecutor in an invasion of privacy investigation against Greitens. Gardner dropped the charge three days into jury selection when faced with having to answer questions under oath about her former lead investigator, William Don Tisaby.
There was also no discussion with a Missouri House committee investigating Greitens, Gardner’s spokeswoman said.
Ryan said the agreement did not benefit Gardner in any way; she said there was no deal about potential sanctions against her or a police investigation into perjury allegations by Gardner’s investigator or claims of misconduct by Gardner herself. Defense attorneys have accused Gardner of improperly withholding evidence and suborning sworn testimony from her lead investigator.
Professor Brendan Roediger, a St. Louis University law professor, raised ethical concerns on Twitter about the portion of the agreement that releases Gardner, her office and consultants from civil liability. Roediger cited a state statute that says a “public servant commits the offense of acceding to corruption if he or she knowingly solicits, accepts or agrees to accept any benefit, direct or indirect,” for an official action.
Gardner’s office also responded on Twitter, saying that the agreement was “perfectly legal,” that Burlison had signed off on it and that it protected “the taxpayers from having to defend frivolous lawsuits.”
Roediger told the Post-Dispatch that if Gardner were sued, it would be in her individual capacity because she has some immunity as St. Louis’ elected prosecutor. Greitens had something of value in a potential lawsuit, he said.
“The moment, as a prosecutor, that you start to consider your personal liability, your ethical obligation is to ask … for a new prosecutor and recuse yourself,” Roediger said.
He called Gardner’s office’s claim that the judge had signed off on the deal “laughable,” saying “the judge is not somehow validating the conduct of the parties.”
Cristian Stevens, a former federal prosecutor now in private practice, said plea deals with public officials or employees in federal court typically required the official to step down. The loss of that job serves as punishment, he said, and it can deter other officials from similar conduct. It also prevents that person from further misconduct, both by removing them them from office and — in deals that involve a guilty plea — giving them a felony conviction that can prevent them from serving in some future positions.
Stevens said every case was different, but what is not typical in federal court is the dismissal of a case without some guilty plea and admission of guilt.
‘No witch hunt’
While Gardner said Wednesday that dismissal of the computer tampering charge was the best course of action, she criticized Greitens’ statements that he had done no wrong and had been the victim of a witch hunt.
“Contrary to Mr. Greitens’ past statements, there was no witch hunt, no plans to bring pain to him or his family,” Gardner said. “Quite the contrary, the consequences Mr. Greitens has suffered he brought upon himself by his actions, his statements, his decisions, his ambition and pursuit for power.” Gardner said there “was no coordinated effort by anyone to target him based upon his politics. Rather, it was his actions.”
The Greitens cases “did not cost taxpayers anymore than our existing budget allocation. And these cases were not pursued at the expense of my office’s priorities,” she said. Her chief trial assistant Robert Dierker said Wednesday that he didn’t know how much the office had spent prosecuting Greitens but that it was probably “somewhere between a normal felony case and a capital (murder) case.”
Greitens’ attorneys had asked a judge to disqualify Gardner from the computer tampering case, accusing her of running a politically motivated investigation against the governor.
The defense argued that Tisaby, the private investigator hired by Gardner in the invasion of privacy case, had committed perjury, tainting her office’s ability to prosecute the newer felony charge against the governor. The defense also accused Gardner of repeated failures to turn over evidence as required, resulting in sanctions by Burlison last week allowing the defense to re-interview some witnesses, including Tisaby.
Baker, the Jackson County prosecutor, said her investigation continued into allegations that Greitens took in March 2015 a semi-nude photograph of a woman without her consent. The woman has accused him of threatening to release the photo if she spoke about the affair. Greitens has denied claims he blackmailed her.
Gardner said Baker had sole authority over the invasion of privacy case now.
Greitens’ surprise announcement Tuesday came hours after a ruling by a Cole County judge that would force the governor’s campaign and a dark-money political group affiliated with Greitens to reveal fundraising information to a special House investigative committee.
Greitens' claims against the prosecutor were items of value. They were, for instance, fully assignable in Missouri. They were also a potential future liability for the prosecutor. Trading them for a dismissal is indefensible and arguably illegal. pic.twitter.com/WnyXaKuhVY— Brendan Roediger (@RoedigerBrendan) May 30, 2018