In a saga that’s featured twists, turns, drama and intrigue, St. Louis Circuit Attorney Kim Gardner’s decision to drop a felony invasion of privacy charge was genuinely surprising.
There’s no question that Gardner’s move Monday throws an already unpredictable political crisis into flux. Missouri Gov. Eric Greitens, after Gardner's change of course, said the experience left him “humbled,” and likely provides his political team with potent messaging for the state’s votes.
But there’s also little doubt that Greitens still remains in treacherous legal and political territory. Legislators may still move forward with impeachment proceedings — and the governor’s attorneys will still have to try to keep Greitens out of a courtroom.
Here’s what Gardner’s decision may mean for Greitens in the coming days and weeks:
Gardner faces more than just political trouble
From a political perspective, it’s hard to say whether Monday’s events will affect Gardner’s future prospects. St. Louis is one of Missouri’s most Democratic jurisdictions, and it’s way too early in Gardner’s term to discern if she’ll face a credible primary challenger in 2020.
But elections may be the least of Gardner’s concerns. Greitens’ attorneys filed a police report Tuesday against William Tisaby, who Gardner hired to investigate the governor’s case. Tisaby allegedly perjured himself during a deposition — and the governor’s attorneys believe Gardner didn’t do enough to stop him. A spokeswoman for the St. Louis Police Department confirmed that they were opening an investigation.
“She was in a position to know what her investigator did. She did not stop the perjury. She tacitly agreed to it,” said Greitens attorney Scott Rosenblum. “And it was misconduct from the beginning of this case to the end. I can tell you in 35 years, I do not take that allegation lightly.”
Don’t just take Greitens’ attorneys' word for it: St. Louis Circuit Judge Rex Burlison warned last week that there would be a time for “sanctions” against Gardner’s office for their conduct in the case. Michael Wolff, a former Saint Louis University Law School dean and former chief justice of the Missouri Supreme Court, said the punishments could range from fines to prohibiting the case from being refiled.
“The question, of course, for the judge is does this go against her office or against her personally?” Wolff said. “I think in situations like this, it might be personal. It might not be. The judge might decide that the prosecution has suffered enough.”
Refiling the case isn't a certainty
Gardner’s office stressed Monday that she plans to refile the case with a special prosecutor or one of her assistants. Greitens’ attorneys doubt that plan will actually come to pass, citing lack of evidence. Greitens is accused of taking a semi-nude photo of a woman with whom he was having an affair without her consent — and Gardner’s office never found the picture they say he took.
Saint Louis University law professor Anders Walker doesn’t see another prosecutor taking the case.
“I think this is over,” he said, adding that Gardner’s office may focus on Greitens’ felony computer data tampering case.
University of Missouri-Columbia law professor Ben Trachtenberg said Gardner’s best bet may be to find a private attorney that’s willing to step up. That’s happened before in St. Louis, when then-Circuit Attorney Jennifer Joyce tapped Hal Goldsmith to look into a police shooting.
“It might be easier for a special prosecutor to get appointed if the circuit attorney is able to find someone willing to volunteer,” Trachtenberg said. “And so, if you go to the judge and say ‘this respected person is ready to be the special prosecutor, will you please appoint her?’ That may be an easier sell than going to the judge and saying ‘please find someone for me.’”
Greitens still faces a tough crowd in the legislature
Some Republicans appeared to be bracing for the possibility that Greitens wouldn’t be convicted in the felony invasion of privacy case, which may be why there’s been an emphasis that a governor doesn’t need to be found guilty of a crime to be impeached.
“The House’s investigation and the Circuit Attorney’s case are two separate paths,” said GOP Sens. Ron Richard and Mike Kehoe in a joint statement. “The members of the House committee have discovered a disturbing pattern of allegations, most of which are completely separate from the case dismissed today.”
The “disturbing pattern” references two reports on Greitens’ conduct. And it should be noted that Rod Blagojevich was booted as Illinois’ governor in 2009 before being convicted of anything. Wolff said the same principle applies in Greitens’ case.
“That’s a separate proceeding from the judicial proceeding,” Wolff said. “There is no need to have a judicial judgment that the governor violated a law rendered by a court. Because this is really a new proceeding that’s under the control of the House in the first instance.”
Greitens’ camp appears to be bracing for the possibility of impeachment, as evidenced by one attorney sending out potential rules and scheduling on Tuesday for the House to consider. Eighty-two out of 163 House members are needed to impeach Greitens, which would then prompt the Senate to pick seven judges to decide if the governor should be removed.
The words 'in office' could be a critical impeachment sticking point
Whether those judges decide to throw Greitens out may depend on how they interpret a couple of words in the Missouri Constitution.
That’s because a constitutional provision listing what a governor can be impeached for ends with the words ‘in office.’ Wolff said those two words call into question whether Greitens could be dismissed for the felony invasion of privacy allegations, because they occurred before he was elected.
“In our history of impeachments in the United States, there’s very few instances where pre-office conduct even counted,” Wolff said. “And certainly not with any respect to executives in the federal system. We’ve never had it in the state of Missouri.”
State Rep. Peter Merideth, though, believes that the wording in the constitution makes it possible to be convicted for things that happened before an election. The St. Louis Democrat noted that the words “in office” also come after the word ‘corruption’ earlier in the phrase.
“Which shows you that in office applies to two of the list,” Merideth said. “It doesn’t apply to the rest. It doesn’t apply to crimes. It doesn’t apply to misconduct. And it may or may not apply to moral turpitude. That one’s grayer.”
This may end up being a moot point, though, if lawmakers decide to base impeachment off the aforementioned computer data tampering case. Greitens is accused of using a charity fundraising list without that group’s permission. And he’s been accused of signing a false Missouri Ethics Commission consent order while serving as governor, which may render the ‘in office’ question irrelevant.
Greitens still faces void of political support
In the best case scenario where Greitens hangs onto his office, he still faces an immense challenge of gaining back enough state legislative support to place his stamp on Missouri government.
Greitens had that opportunity when he won his 2016 election, because never before had a GOP chief executive had such a Republican legislature at his disposal. In many respects, he squandered that chance with both his past actions — and how he treated lawmakers essential to passing an agenda.
Many of the Republican leaders calling for Greitens’ resignation, like House Speaker Pro Tem Elijah Haahr and House Majority Leader Rob Vescovo, will likely be in positions of power over the next couple of years. And they’ll have every incentive to ignore what Greitens wants in favor of their own ideas. The governor doesn’t have much leverage to change that course, as evidenced by how lawmakers ignored his cuts to higher education this month.
So in the event that he makes it through this torrent of scandal, Greitens will have to live up to his own words — that the last six months humbled him and left him a changed man. And that attitude adjustment may require him to stop castigating his potential legislative allies as “career politicians.”
That may be a tough sell, especially when some of Greitens’ policy enemies may have been involved in unleashing the chaos engulfing his administration. But he may have few other options.
On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.
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