ST. LOUIS • Missouri Gov. Eric Greitens, who was swept into office in 2016 with a vow to clean up a corrupt state government, was indicted and booked Thursday on a felony invasion of privacy charge for allegedly taking and transmitting a non-consensual photo of his partly nude lover shortly before that campaign started.
It stems from a scandal that broke last month, in which Greitens was accused of threatening his lover with the photo — an allegation that isn't mentioned in the indictment. Greitens has admitted having an extramarital affair, but has denied the rest.
St. Louis Circuit Attorney Kim Gardner's office announced the grand jury indictment Thursday afternoon. A Post-Dispatch reporter saw Greitens being led down a hallway by several St. Louis city deputies on the first floor of the Carnahan Courthouse in downtown St. Louis at about 3:45 p.m. Officials later confirmed Greitens had been taken into custody and then booked at the St. Louis Justice Center.
Greitens, a Republican, declared his innocence in a written statement, and alleged the indictment is a "misguided political decision" by a "reckless liberal prosecutor." Gardner is a Democrat.
Greitens' legal team immediately filed a motion to dismiss the indictment, on grounds that any activity Greitens engaged in was "consensual."
Judge Rex M. Burlison allowed Greitens' release on a personal recognizance bond that permits him to travel freely throughout the United States. Greitens was scheduled to travel to Washington this weekend for an annual meeting of the nation’s governors. But Elena Waskey, spokesperson for the National Governors Association, said late Thursday that Greitens informed the organization that he would not be attending.
Online court records indicate Greitens is due back in court on March 16.
In recent weeks it appeared Greitens had weathered the worst of the scandal, but as news of the indictment spread Thursday, it became clear his political future is again in jeopardy.
A joint statement by top legislative Republicans, including Speaker of the House Todd Richardson, said they will appoint a group of legislators to investigate the charges: “We will carefully examine the facts contained in the indictment and answer the question as to whether or not the governor can lead our state while a felony case moves forward." Any impeachment proceedings would begin in the House.
Gardner, in her statement announcing the indictment, said the grand jury found probable cause to believe Greitens violated a Missouri statute that makes it a felony to transmit a non-consensual image showing nudity in a manner that allows access to that image via a computer.
"As I have stated before, it is essential for residents of the city of St. Louis and our state to have confidence in their leaders," Gardner said in the statement.
On Jan. 10, the Post-Dispatch and other area media reported that Greitens, a first-term Republican elected in 2016, had had an extramarital affair near the start of that campaign, in 2015.
The allegation was put forward by the husband of Greitens' lover, based on a surreptitious audio recording he made of a conversation with her.
The woman said in the recording that, during a consensual sexual encounter in Greitens' St. Louis home in which she was bound and partly undressed, Greitens took a photo of her without her consent and threatened her with it.
There was nothing in the initial allegation to indicate that Greitens ever followed through on the alleged threat to disseminate the photo, and in fact the woman said later in the secretly recorded conversation that he'd later told her he'd erased it.
However, Gardner's written statement Thursday indicates there is now an allegation that he did in fact "transmit" the image at some point.
"This statute has a provision for both a felony and misdemeanor," Gardner said in her statement. "The law makes it a felony if a person transmits the image contained in the photograph or film in a manner that allows access to that image via a computer."
Under Missouri law, the crime of “invasion of privacy” includes creating “an image of another person” by any means, “without the person’s consent, while the person is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy.”
That offense alone — taking a compromising photo without a person’s consent, even without disseminating it or threatening to — is a Class A misdemeanor, punishable by up to a year in jail.
Invasion of privacy becomes a felony offense in Missouri if the person taking the nonconsensual picture subsequently "distributes the image to another or transmits the image in a manner that allows access to that image via computer." In that case, the crime is a Class E felony, punishable by up to four years in prison.
In a statement, Greitens attorney Edward L. Dowd Jr. said, “In forty years of public and private practice, I have never seen anything like this. The charges against my client are baseless and unfounded. My client is absolutely innocent.”
Dowd's motion to dismiss doesn't specifically deny the allegation that Greitens took the photo. Instead, it claims that the law used in the indictment was meant to apply to "peeping toms," and not to "a situation between two people engaged in consensual sexual activity."
Greitens later released his own statement:
"As I have said before, I made a personal mistake before I was Governor.
"I did not commit a crime.
"With today’s disappointing and misguided political decision, my confidence in our prosecutorial system is shaken, but not broken. I know this will be righted soon.
"The people of Missouri deserve better than a reckless liberal prosecutor who uses her office to score political points.
"I look forward to the legal remedies to reverse this action.
"This will not for a moment deter me from doing the important work of the great people of Missouri."
Allegations, and a tape
The woman had been Greitens' hair stylist. Her ex-husband confronted her about the affair while it was in progress in 2015, and taped the conversation without her knowledge. Taping of conversations is legal in Missouri as long as at least one party knows about it. The husband later provided the audio to news outlets.
The Post-Dispatch, as other outlets, has declined to publicly identify the woman, because she has declined to talk to reporters.
The woman claims in the audio recording that on March 21, 2015, she went to Greitens’ home in the Central West End. There, in his basement, she said, he bound her to a piece of exercise equipment with some kind of tape, put a blindfold on her and began partly undressing her and touching her.
That part was consensual, she indicated in the audio, but she alleged he took a photo that wasn't. She said in the audio that she wasn’t aware he was doing it until she saw a flash of light through the blindfold, followed by his alleged verbal threat.
“You’re never going to mention my name, otherwise this picture will be everywhere,” Greitens told the woman, she claimed on the audio.
Peter Joy, a professor at the Washington University School of Law, said he expects the indictment against Greitens means either the woman agreed to cooperate with Gardner's probe or that investigators have obtained other evidence of a crime.
"I still think that at the end of the day, without her, it's still going to be almost impossible to prove," Joy said. "They must have something more than the audio tape that her ex-husband has, because, although grand juries will often follow the cue of the prosecutor presenting the case, I would think the grand jury would want some sort of proof of transmission of the photograph."
Joy said he doesn't think politics is motivating Gardner's decision to seek an indictment against the governor and that it's not uncommon for prosecutors to indict those on either side of the politcal spectrum. Without probable cause, Joy said, a prosecutor should not even bring a case to the grand jury.
"They're supposed to put politics aside and in almost every instance, that's what they do," Joy said.
Mike Wolff, a former Missouri Supreme Court chief justice and former dean of St. Louis University’s law school, said the speed with which Gardner's office obtained an indictment is not necessarily surprising because the statute of limitations for invasion of privacy would have expired March 21, or three years after the date of the alleged crime.
He also said the elements needed to prove invasion of privacy are not terribly complex, in that a prosecutor just needs evidence that Greitens took a compromising picture of the woman and shared it.
"It's a simple event, and you're bumping up against the statute of limitations," Wolff said. "If you don't make a decision in the next month, you don't have a case."
It's now up to the Missouri House to decide whether the indictment should trigger impeachment proceedings, Wolff said. If impeachment follows, a special commission elected by the senate will try Greitens' case.
Reaction in Jefferson City
Word of the indictment came just hours after most rank-and-file lawmakers had cleared out of the Capitol for the weekend.
In a third-floor hallway, Senate President Pro Tem Ron Richard, R-Joplin, shook his head as he heard the news and said it was too early for him to comment.
The No. 2 man in the Senate, Majority Leader Mike Kehoe, R-Jefferson City, said he was shocked at the indictment.
“I think that’s what most people’s reaction would be,” Kehoe said. “When you get news like this, it certainly catches people off guard. Elected officials are and should be held to a higher standard.”
Kehoe tried to tamp down concerns that the governor’s woes would zap the legislative session, which runs through mid-May.
“We will make sure that the ship runs straight and that some of the issues that are coming out don’t deter us from doing the right thing and protecting people from the wrong thing that could come out of this building,” Kehoe said.
When asked if Greitens should resign, Kehoe said, “I am not prepared to say that.”
But House Minority Leader Gail McCann Beatty, a Democrat, suggested in a statement that Greitens should resign.
"It will be extremely difficult for the governor to effectively do his job with a felony indictment hanging over his head," Beatty wrote. "While the criminal justice system must run its course, the governor needs to consider whether remaining in office under these circumstances is the right thing to do for not only himself and his family but for the people of Missouri."
Greitens is apparently the first sitting Missouri governor to be indicted. "No governor that I can determine has been criminally charged," said Ken Winn, former longtime Missouri state archivist.
Sheena Greitens, the governor's wife, spoke Thursday night at Washington University about North Korean refugees. People who attended said afterward that the charge against her husband did not come up in her speech or in a question-and-answer session that followed.
Kurt Erickson, Joel Currier, Ashley Jost, Christine Byers, Joe Holleman, Chuck Raasch, Mark Schlinkmann and Nassim Benchaabane of the Post-Dispatch contributed to this report.