In a stunning move, St. Louis Circuit Attorney Kim Gardner has dropped the felony invasion of privacy charge against Gov. Eric Greitens — short-circuiting the unprecedented trial of a sitting Missouri chief executive.
While Gardner’s office is promising to refile the case with a special prosecutor, the governor’s attorneys are confident that another prosecutor won’t touch the case.
Greitens is accused of taking a semi-nude photo of a woman with whom he had an affair — without her consent — and placing it in a position to be accessed by a computer. The case was slowly moving through jury selection on Monday when Ronald Sullivan, who was hired by Gardner to help with this case, stood up and announced that the charges against the governor were being dropped.
The reason, according to Gardner’s office, was that St. Louis Circuit Judge Rex Burlison allowed Gardner to be a witness in the case. An investigator whom Gardner hired, William Tisaby, allegedly made false statements during a deposition with the woman. Gardner was in the room when Tisaby was interviewing her.
In a statement, Gardner’s office said “the court’s order places the Circuit Attorney in the impossible position of being a witness, subject to cross-examination within the offer of proof by her own subordinates.”
“When the court and the defense team put the state in the impossible position of choosing between her professional obligations and the pursuit of justice, the Circuit Attorney will always choose the pursuit of justice,” the statement went onto say. “The court’s order leaves the Circuit Attorney no adequate means of proceeding with this trial. Therefore, the court has left the Circuit Attorney with no other legal option than to dismiss and refile this matter.”
The statement also said that Gardner will “make a decision to either pursue a special prosecutor or make an appointment of one of her assistants to proceed.” She has about a month to make that decision.
Speaking to a mass of reporters on the St. Louis Civil Courts Building’s steps, Greitens, who admitted to having an extramarital affair but denied that he broke any law, said: “This experience has been humbling and I have emerged from it a changed man.”
“I think that in all of our lives, we have to deal with pain,” Greitens said. “I think if you work through it in the right way, you work through pain and find wisdom. In all of our lives, we have to deal with suffering. And if we deal with suffering in the right way, we can emerge with strength. I also believe, as many people of faith do, that even in the hardest and most difficult situations, we can find tremendous blessings.”
Greitens’ attorneys were less magnanimous. Gardner’s office never possessed the photo they said Greitens took. And a search through the governor’s phone and iCloud account turned up nothing.
That’s why they doubt that a special prosecutor will take up the case.
“It had to come to an end,” said Greitens attorney Scott Rosenblum. “And it came to an end when she was going to have to testify under oath. And she was either going to take the 5th Amendment or be forced to admit her involvement. This case is never going to be charged again. There’s not going to be a special prosecutor. Because any prosecutor would look at these facts, recognize the facts and never go forward.”
Gardner spokeswoman Susan Ryan said “we believe there is sufficient evidence.”
A troubled case
The felony invasion of privacy charge stems from a KMOV-TV report that aired right after Greitens’ State of the State speech in January. The woman’s ex-husband clandestinely recorded her saying that Greitens took a photo in 2015 while she was blindfolded and tied up in the basement of his Central West End neighborhood home.
Gardner filed charges in late February. But the case was beset by a series of missteps and curveballs. The most notable was Tisaby’s deposition with the woman, where he said under oath he didn’t take notes. Video later appeared showing he clearly was writing things down. Burlison mulled over dismissing the case, but decided to let it proceed.
But the caveat for letting the case continue was that Tisaby had to give a deposition of his own. He invoked his 5th Amendment right against self-incrimination. Rosenblum said Burlison allowed Gardner to become a witness “because she set herself up as basically the lead investigator.”
“She made herself a witness to the perjury her investigator created throughout the course of this case and his misconduct,” Rosenblum said. “She was the only witness. The judge recognized, at least the probability, that she would have valuable testimony.”
The Tisaby episode wasn’t the only problem for the prosecution. Al Watkins, an attorney for the ex-husband who revealed the affair, acknowledged he received $120,000 in cash to deal with fallout. One of the people who delivered the money, is publisher of the Missouri Times, Scott Faughn, who also has ties with people and businesses involved with low-income housing tax credits. That could suggest that the revelation of the affair was retaliation for Greitens halting the state low-income housing tax credit in December 2017.
“We tried to chase that down everywhere we possibly could,” said Greitens attorney James Bennett. “We ran out of time before the trial. We assumed that other people with power will continue to do that effort.”
That could be a reference to how a House committee looking into Greitens’ conduct could subpoena people associated with low-income housing tax credits and require them to testify under oath. House Speaker Todd Richardson, R-Poplar Bluff, wouldn’t say last week if the committee would do that, but didn’t rule it out either.
Another case looms
Even if a special prosecutor declines to charge Greitens again, he’s not out of the legal woods.
That’s because Gardner charged Greitens with felony computer data tampering. She accused Greitens of taking a fundraising list from The Mission Continues charity without its permission — and using that information to raise money for his 2016 campaign for governor. Greitens helped found that veterans charity before he ran for office.
Greitens already admitted that he used that list for political purposes. And it’s not out of the question that he could face charges in Cole County for signing a consent order from the Missouri Ethics Commission that included false information.
But Bennett and Rosenblum believe those charges should be dropped as well. Rosenblum said that he thinks “anything this circuit attorney’s office has touched should be dropped because it’s tainted, it’s biased and those decisions cannot be looked at as objective.”
Bennett added that the defense is trying to get a special prosecutor to deal with that case.
“We’re cautiously optimistic that we can get a fair-minded person in there to look at that list, which Gov. Greitens created on his own,” Bennett said. “If they choose to bring a case, we believe we’ll win that one.”
Impeachment impact
Since January, Greitens has seen a full collapse of political support — especially among Republicans. And some of the legislative leaders believe that Monday’s decision won’t stop the legislature from pursuing impeachment.
“The legislature is a separate and a co-equal branch of government with a separate responsibility entrusted to it by our Constitution,” said Richardson, House Majority Leader Rob Vescovo and House Speaker Pro Tem Elijah Haahr in a statement. “We owe it to Missourians to have a fair and thorough investigation of the facts. To date the committee’s work has not only provided two reports on the facts to the General Assembly but, more importantly, it has also exposed additional concerns relating to the governor’s conduct. This is why we remain committed to that process and await any recommendations it has for the House.
“Without the pending trial this week, it allows the Governor to take advantage of our open offer to share his side of the facts,” the statement added.
That statement alluded to two House reports. The first features testimony from the woman, who accused Greitens of sexual and physical abuse. Greitens denied those charges, but members of both parties found the woman credible. The other featured more details into how Greitens obtained The Mission Continues’ list.
Rep. Kathie Conway, a St. Charles Republican who called on Greitens to step down, said today’s announcement may not be as useful for the governor as he may assume.
“One has never been dependent on the other,” said Conway, referring to impeachment being predicated on a conviction in court. “What we do in an impeachment hearing or for articles of impeachment is entirely separated from a criminal charge.”
At least one Democratic lawmaker, though, warned before the announcement that a lack of a conviction could end up having an impact on whether Republicans vote for impeachment. At least 82 members need to vote for that. If such a vote happens, the Senate will pick judges to consider the case.
“You know, he’s going to be spending hundreds of thousands of dollars in our communities with messages about how he’s been vindicated in court and proven innocent. All of these things that are not entirely accurate,” said state Rep. Peter Merideth, D-St. Louis. “But that messaging is going to be back in the bases of all these Republicans. And they’re going to be home. And they’re going to hear that.”
For his part, Greitens, who has refused resignation calls since January, indicated Monday he would continue to serve. As has been custom since he was indicted in February, he walked away from the media scrum without taking questions.
“At this time, I would ask people of goodwill to come together so that all of us can continue to do good together,” Greitens said.
Read the full statement by the Circuit Attorney's Office below:
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