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Greitens offered to resign as part of deal to dismiss computer-tampering charge

St. Louis Circuit Attorney drops felony charge against Missouri Gov. Eric Greitens

Circuit Attorney Kimberly M. Gardner held a press conference on Wednesday, May 30, 2018 at 10:30am to announce that she will be dropping the charges in the Felony Tampering with a Computer case against Missouri Governor Eric Greitens.
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Circuit Attorney Kimberly M. Gardner held a press conference on Wednesday, May 30, 2018 at 10:30am to announce that she will be dropping the charges in the Felony Tampering with a Computer case against Missouri Governor Eric Greitens.

Missouri Gov. Eric Greitens offered to resign as part of an agreement to dismiss a felony computer-tampering charge against him, according to the St. Louis prosecutor's office.

St. Louis Circuit Attorney Kimberly Gardner announced Wednesday that she would dismiss the charge.

The deal, which did not require Greitens to admit guilt, released Gardner and all members of her office and consultants from any civil liability related to the tampering case or a previous felony invasion-of-privacy case against Greitens.

Gardner and Greitens' legal team started talking about a deal over the holiday weekend. A source close to the agreement told The Star that Greitens' legal team reached out to Gardner's office by telephone on Saturday to seek dismissal, raising the possibility of the governor's resignation as a bargaining chip.

Greitens announced his resignation Tuesday.

"Now it’s time for all of us to come together," Gardner said Wednesday. "It’s time to heal the wounds of our city and state and focus on building a place where people feel they are heard. Where victims, regardless of their station in life, know that we will do what is right regardless of the powers against them."

The agreement settles a felony charge brought by Gardner based on evidence uncovered by the office of Missouri's Republican Attorney General Josh Hawley, who essentially accused Greitens of electronic theft for his use of a donor list belonging to a veterans charity he founded.

Greitens committed "potentially criminal acts" by using the list without the charity's permission to raise money for his gubernatorial campaign, Hawley alleged at a press conference in April. Gardner responded by filing the computer-tampering charge a few days later.

“The Circuit Attorney acknowledged that the evidence was sufficient to prosecute this case, but it is within her discretion not to do so,” said Mary Compton, a spokeswoman for the attorney general's office, in a statement.

Hawley's investigation into the veterans charity remains ongoing. His office also is looking into Greitens' use of social media.

"Our office intends to pursue and conclude its investigations in an orderly fashion," Compton said.

In a press conference on Wednesday, Gardner disputed Greitens' past statements that she had been engaged in a politically motivated witch hunt against him.

"There has been no witch hunt," Gardner said. "No plans to bring pain to him or his family. Quite the contrary. The consequences Mr. Greitens has suffered, he brought upon himself. By his actions. By his statements. By his decisions. By his ambition. And his pursuit for power."

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The agreement between St. Louis Circuit Attorney Kimberly Gardner and former Missouri Gov. Eric Greitens was released to the public but included provisions that were entirely blacked out.

Seven terms

A copy of the agreement to dismiss obtained by The Star included seven terms. Two of the terms were blacked out and marked "under seal."

The document Included an acknowledgment by Gardner that the outcome of any trial on the tampering charge "would be attended with considerable public expense and the outcome could not be predicted."

The agreement also noted that Greitens would withdraw all motions to disqualify Gardner and her office from prosecuting the case, and stated that all parties agreed it is "in the interests of justice" that the charge be resolved quickly.

In the agreement, Gardner stipulates that the court may dismiss the tampering charge with prejudice — meaning it can't be refiled — "upon receipt of the defendant's resignation from office by the Secretary of State of Missouri."

Greitens also agrees "after advice of counsel" to release Gardner, her office and any consultants from any civil liability and waive "any claim to court costs not already taxed."

Susan Ryan, a spokeswoman for Gardner, said the provision releasing the circuit attorney's office from liability "was included in an effort to protect the city from having to pay to defend frivolous lawsuits."

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Although the agreement between Gardner and Greitens resolves the tampering charge, a separate investigation will continue into allegations of wrongdoing by Greitens during his affair with his hairdresser in 2015. Jackson County Prosecutor Jean Peters Baker is leading that probe.

Gardner said Wednesday that she can’t comment on what Baker will do. "Ms. Baker has complete authority to do what she believes is the just thing to do based upon her evaluation of the case," Gardner said.

Baker took over the investigation into Greitens' alleged misconduct after Gardner dropped a felony invasion-of-privacy charge. That charge stemmed from allegations that Greitens had photographed the woman while she was bound and partially nude in his basement.

The woman later would testify to a bipartisan investigative committee of the Missouri House that Greitens also held her in a bear hug when she tried to leave the basement and coerced her into oral sex as she sobbed uncontrollably.

The woman's attorney said Wednesday that she was declining interviews but thankful to all of the individuals involved that honored her privacy by not publishing her name and other identifying information.

"Our gratitude goes out to the media, the House committee, the St. Louis circuit attorney and the special prosecutor among others," the attorney, Scott Simpson, said in an email. "Now that the Governor has resigned I hope my client can go back to being a private citizen and put this matter behind her."

Gardner dropped the invasion-of-privacy charge earlier this month after the judge in the case ruled that he would allow Greitens' attorneys to depose Gardner about whether she had knowledge of perjury committed by a private investigator hired by her office.

The private investigator, William Don Tisaby, was hired by Gardner to work on the invasion-of-privacy case.

Greitens' attorneys accused him of lying about his methods and the evidence he collected. Tisaby pleaded the Fifth Amendment in response to more than 50 questions in a deposition by the defense team.

Tisaby's attorney, Jermaine Wooten, has said the perjury allegations are without merit, and Gardner's office has said there's no evidence that any action by Tisaby was anything other than mistaken or confused, or that any of his actions were illegal or materially affected the case against Greitens.

'A very unusual agreement'

Legal experts interviewed by The Star characterized the agreement reached between Gardner and Greitens as unusual.

It reads a bit more like a civil settlement than what is typically seen in a criminal case, with both the governor and the circuit attorney seeking mutual releases, said Jean Paul Bradshaw II, a partner at Lathrop Gage and a former U.S. attorney.

But Bradshaw said the deal is probably a good resolution of the charges.

"Given how at least the initial (invasion of privacy) case was handled, it raised some issues of personal liability on behalf of the circuit attorney’s office or staff members there, so I guess that makes this a little different," Bradshaw said.

"The state’s interest in seeing this case prosecuted is probably outweighed by the value of the resignation, so it’s probably a fair resolution of this. It’s just a very unusual agreement, but let’s face it, this is a very unusual circumstance."

Bradshaw and others raised concerns about the censored parts of the agreement.

"To have a confidentiality provision in something that’s actually filed in court, and where one of the parties is the state’s governor, I’m not sure what’s in the public interest there in doing that," Bradshaw said.

John Ammann, attorney and law professor at St. Louis University school of law, said he's very worried about the ethics of sealing significant provisions in the agreement, especially since the deal ties Greitens' criminal case to his threat of a civil lawsuit against Gardner.

"There’s all kinds of trouble with it," Ammann said. "What the hell is the redacted stuff? The public should be able to see the entire agreement. This is about the governor."

Pat McInerney, a partner in the Spencer Fane White Collar and Government Investigations practice, said it's important to ask how the risk to the city of St. Louis and the prosecutor's office balanced against the conduct of a sitting governor who might have committed a criminal offense — allegedly for his own personal political goals.

"It’s the battle between getting the deal done and transparency, particularly in the public office holder context," McInerney said.

"There’s a general disfavor for secrecy in criminal cases, especially the resolution of criminal cases," he said.

"The very nature of this case is an attack on transparency. It is at least ironic that portions of this stipulation for dismissal are redacted and won’t be visible to the public."

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