Updated at 5:15 p.m. with Judge Rex Burlison taking request under advisement.
Attorneys for Missouri Gov. Eric Greitens want to disqualify St. Louis Circuit Attorney Kim Gardner from overseeing the governor’s latest felony charge — and instead appoint a special prosecutor.
It stems from how Gardner has handled Greitens’ other felony case for felony invasion of privacy.
Greitens was charged on Friday with felony tampering with computer data. He’s accused of taking a fundraising list from The Mission Continues without the organization’s permission — and using that information to raise money for his 2016 gubernatorial bid.
In a Monday filing, Greitens' attorney, James Bennett, wrote that the St. Louis Circuit Court should appoint a special prosecutor instead of Gardner. St. Louis Circuit Judge Rex Burlison did not make a ruling on Tuesday afternoon, but asked both the prosecution and defense to submit the names of people who could serve as special prosecutors.
Among other things, Bennett says that Gardner has a “personal motivation to justify the prior charges and conduct by bringing new charges, which the defendant believes to be unfounded.” During a court hearing on Tuesday afternoon, Greitens attorney Jack Garvey contended that Gardner was seeking "redemption and resurrection" after complications with the felony invasion of privacy case.
He also said that William Tisaby's involvement "corroded" the computer tampering case. Gardner hired Tisaby to interview witnesses about Greitens. He allegedly made false statements during a deposition, including about whether he took notes while interviewing witnesses.
The filing also states that Burlison told attorneys in a closed meeting that Tisaby, an investigator Gardner hired to interview witnesses in the felony invasion of privacy case, may have committed perjury.
“[Burlison] then explained to Ms. Gardner ‘the point still remains is that there is (sic) allegations that someone has to investigate,’” the filing states. “Without explaining the basis for her conclusions and acknowledging that other members of her staff had stated that Mr. Tisaby would be investigated, the circuit attorney responded ‘these are allegations that are unfounded.’ It is very difficult to understand how any person could conclude that Mr. Tisaby told the truth in his depositions. Thus, the circuit attorney’s support for Mr. Tisaby is difficult to understand.”
In response, Gardner’s office said in its filing that it “categorically rejects the claim that she is ‘interested’ or vindictive, and the circuit attorney likewise disputes the reckless and unwarranted accusation of subornation of perjury.”
“Defendant’s argument, if accepted, presents the very real prospect that courts will be called upon to appoint a special prosecutor in every case where the defendant has aggressively attacked the methods and conduct of the prosecutor in one case, to preclude the prosecution of other meritorious cases against that defendant,” the filing states.
Gardner said on Tuesday that Tisaby played a "very minimal" role in the computer tampering case. Gardner spokeswoman Susan Ryan said that Tisaby only spoke with one witness in that case. She told reporters after the hearing that Tisaby followed up tips about Greitens.
And Gardner's filing goes on to say that there is “simply is no realistic likelihood of vindictiveness when the prosecutor files an unrelated charge based on her own investigation and an investigation by the attorney general of the State.” That’s a reference to how Attorney General Josh Hawley sent evidence to Gardner in the computer data tampering case.
“The defendant’s motivation is transparent: he wishes to disable both the circuit attorney and the attorney general — the responsible elected officers charged with enforcement of the criminal laws — from proceeding on a criminal charge, in an obvious effort to delay the cause so as to deflect the General Assembly from pursuing its own agenda,” the filing states. “The court should not aid or abet this gambit.”
That line may be a reference to how Greitens’ attorneys want any special prosecutor to be “outside and independent from” Hawley’s office. Hawley called on Greitens to resign after a House report on the governor’s conduct was released. Greitens’ attorneys have requested a restraining order to prevent Hawley from any future legal involvement with the governor. A hearing on that request is set for Thursday in Cole County.
Greitens is facing the possibility of being impeached, especially after GOP House Speaker Todd Richardson called for the governor to step down. It only takes a majority of House members to impeach a governor — and then a panel of judges that the Senate selects decides whether that officeholder is removed.
Watkins' financial records can be obtained
Meanwhile, Burlison refused to stop a bid from Greitens' attorneys to obtain financial records associated with two $50,000 cash payments to attorney Al Watkins. Watkins represents the ex-husband of the woman Greitens had an affair with in 2015. He's also represented at least two other people who have injected themselves in the governor's saga — Eli Karabell and Paul Henreid.
Watkins confirmed to reporters on Monday that he received the $100,000 to deal with fallout from the reveal that Greitens had an extramarital affair. He said he doesn't know where the money came from. He did say, though, an "intermediary" called his office about the money.
Watkins declined on Tuesday to identify the intermediary. A House committee looking into Greitens' conduct issued a subpoena on Tuesday for Watkins to testify.
Follow Jason on Twitter: @jrosenbaum