Hawley questions Greitens use of private attorneys in impeachment proceedings

8 months 6 hours 14 minutes ago Friday, May 18 2018 May 18, 2018 Friday, May 18, 2018 8:34:00 PM CDT May 18, 2018 in News
By: Annie Hammock, KOMU 8 Interactive Director

COLUMBIA - Attorney General Josh Hawley says attorneys helping Gov. Eric Greitens through impeachment proceedings are acting improperly.

"By all appearances, the private impeachment counsel seem focused on advancing the individual interests of Governor Greitens rather than the institutional interests of the Office of the Governor," Hawley said.

He is asking state Auditor Nicole Galloway to look into it. Hawley said Greitens' office lacks the authority to retain private counsel to participate in any adversarial activities without the attorney general's consent.

"My office was never consulted regarding the retention of those attorneys and has never consented to their hiring," he said.

Greitens' office responded with a statement saying Hawley "has basic facts wrong."

Spokesman Parker Briden said, "Counsel for the Office have entered an appearance with the committee on behalf of the Office, not the Governor personally. They have attended meetings with legislative branch officials on behalf of the Office, and they have interacted with counsel for the legislative branch by responding to informal and formal requests for documents on behalf of the Office, not the Governor personally."

All this comes as a special legislative session began Friday to determine possible disciplinary action against Greitens, who is accused of blackmail and campaign finance wrong-doing.

The governor is also dealing with two criminal cases. He is facing charges of computer tampering related to the misuse of a charity donor list. Invasion of privacy charges in the blackmail case were dropped this week, but prosecutors say they'll re-file.

Dear Auditor Galloway:

 

It has been widely reported that the Office of the Governor has retained- at taxpayer expense- at least two private attorneys to defend Governor Greitens in potential upcoming impeachment proceedings. Public statements made by those attorneys seem to indicate that they represent the Office of the Governor rather than Governor Greitens individually. My Office was never consulted regarding the retention of those attorneys and has never consented to their hiring. 1 understand that your Office is currently reviewing various issues relating to the retention of those attorneys. I write to advise you that, absent express statutory authorization, the Office of the Governor lacks authority to retain private counsel to participate in connection with any adversarial proceeding without the Attorney General's consent.

 

The Missouri Constitution "vests the office [of Attorney General] with all of the powers of the attorney general at common law." State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 136 (Mo. bane 2000). The Attorney General may exercise all common-law powers of the attorney general except when "restricted by a statute enacted specifically for the purpose of limiting his power." Id. At common law, "[t]he Attorney General was the law officer  of the Crown, and its only legal representative in the courts." Darling Apartment Co. v. Springer, 22 A.2d  397, 403  (Del. 194I). As a result, a state attorney general with common-law constitutional authority is "clothed not only with the power but also the duty to represent the State and its several departments in all litigation where the public interests are concerned, and to advise the Executive and other State officers and agencies when called on by them for legal advice in their official capacities."  Id. Missouri statutes reinforce this broad conception of the Attorney General's authority, contemplating that he or she will control litigation on behalf of state entities and officers. Seee.g., §§ 27.050, 27.060, RSMo. Under Missouri law, "[i]t is for the attorney general to decide where and how to litigate issues involving public rights and duties and to prevent injury to the public welfare." State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 347 (Mo. App. W.D. 1980).

I

 

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Thus, it is clear that the Missouri Constitution designates the Attorney General as the presumptive legal counsel of state Exec utive entities and officers- including the Office of the Governor- in connection with adversarial proceedings,  absent an express statutory  provision to the contrary. Am. Tobacco, 34 S. W.3d at 136.1 The General Assembly has expressly authorized certain state entities and officials to retain separate counsel under various circumstances. For example, the General Assembly has authorized the Department of Conservation and the Department of Transportation to retain separate counsel in cases covered by the Legal Expense Fund. § 105.716.1, RSMo. Similarly, the General Assembly has expressly authorized the Public Service Commission to retain separate counsel to represent the Commission in litigationand other adversarial proceedings. § 386.07 1, RSMo.

 

Here, the private impeachment counsel are purporting to act as attorneys for the Office of the Governor, and we understand that their legal fees are to be paid from taxpayer funds. No authority exists for the Office of the Governor to retain those attorneys. The General  Assembly has not enactedany statutory authorization for the Office of the Governor to retain private counsel at taxpayer expense to participate in impeachment proceedings. See, e.g.,Chapter 26, RSMo. And the Attorney General has not consented to the retention of those attorneys. Thus, under Missouri law, the Office of the Governor lacks authority to retain private impeachment counsel, and those attorneys lack authority under Missouri law to act on behalf of the Office of the Governor.

 

The importance of these  principles is particularly clear in this case. By all appearances, the private impeachment counsel seem focused on advancing the individual interests of Governor Greitens rather than the institutional interests of the Office of the Governor. The impeachment  and removal of a governor does not impinge on the power of the Office of the Governor but instead affects the identity of the individual who wields that power. It appears that the private counsel retained by the Office of the Governor are simply advancing the private interests of the individual who happens to currently occupy that Office, rather than the constitutional interests of the Office itself. Under Missouri law, the duly elected Attorney General- not private attorneys retained without the authorization of the General Assembly or the Attorney General- has the duty and authority to safeguard the institutional interests of the Office of the Governor. See Igoe, 611 S.W.2d at 347.

 

In light of these considerations, I ask that your ongoing review consider that the Office of the Governor lacks authority to retain private impeachment counsel and that those private attorneys who purport to represent the Office of Governor at taxpayer expense are acting without authority

In response to accusations from Attorney General Hawley, please see the following statement attributable to Parker Briden, spokesman for Governor Greitens:

 

It is long established that the Governor’s office has the ability to hire counsel to represent the Governor in his official capacity. In fact, former Governor Jay Nixon previously hired private attorneys to represent him and his office. Missouri law specifically provides for statutory authority for the Governor to hire counsel (RSMo. 26.020 provides that “the governor may employ and fix the compensation of such legal…assistants as may be necessary for the efficient conduct of his office.”) This authority allowing state officers to enter into contracts for legal services has been reinforced by the Supreme Court of Missouri in Aetna Ins. Co. v. O’Malley343 1232 (1938). 

 

The Attorney General is well aware that a possible impeachment implicates the institution of the office of the Governor and not just the individual. An effort by one branch of government to sit in judgment on another implicates the core of the executive branch of government. Presidents (including President Trump) and multitudes of governor’s offices, from New Jersey, Virginia, Alabama, Connecticut, South Carolina, and many others, have engaged outside counsel to assist in investigations that affect governors. The Governor’s office has the authority to hire counsel to represent the office to defend its interests in any purported impeachment.

 

As to the argument that the Governor’s Office counsel are “advancing private interests,” the Attorney General has basic facts wrong. Counsel for the Office have entered an appearance with the committee on behalf of the Office, not the Governor personally. They have attended meetings with legislative branch officials on behalf of the Office, and they have interacted with counsel for the legislative branch by responding to informal and formal requests for documents on behalf of the Office, not the Governor personally. The arguments for due process advanced by the Governor’s counsel will affect the dignity of the office for generations to come, regardless of the individual who holds the office.

 

Just days after the House hired two outside lawyers to represent the committee, the Governor’s adversaries would no doubt like to deprive the Governor’s office of counsel.

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