St. Louis Circuit Attorney Kimberly Gardner. (Photo by Rebecca Rivas.)
A circuit judge will determine whether St. Louis Circuit Attorney Kim Gardner is entitled to claim privilege for her communications with political donors and key figures in the 2018 investigation of former Gov. Eric Greitens, the Eastern District Missouri Court of Appeals ruled Tuesday.
The court affirmed a 2020 decision by St. Louis Circuit Judge Christopher McGraugh that found Gardner’s office purposely violated the Missouri Sunshine Law by refusing to turn over documents to John Solomon, a Washington, D.C. reporter who is a Fox News contributor and former staff member of The Hill.
Under the ruling, Gardner’s office must provide Solomon with a list of the documents potentially subject to disclosure and provide the documents themselves to McGraugh to determine what is and is not a public record.
While Greitens resigned in 2018 as the Missouri House moved toward his impeachment, he is attempting a political comeback this year as a candidate for the U.S. Senate. Polls have consistently shown him to be among the frontrunners in the Republican primary set for August.
A large portion of the opinion discusses Gardner’s argument that McGraugh’s decision should be set aside because he didn’t allow a response to be filed late to the allegations in Solomon’s lawsuit. Assistant Circuit Attorney Lopa Blumenthal, who handled the case, argued at various times that the filings were late because of a clerical error, that there was confusion at the start of the COVID-19 pandemic and that she didn’t file it because she wanted to add material, Eastern District Appeals Court Presiding Judge Robert Clayton wrote in the Tuesday ruling.
Instead, Clayton wrote, it was reasonable for McGraugh to decide the failure “to file a timely responsive pleading to the amended petition was not an act of negligence but instead was a deliberate, conscious, and reckless choice to risk the possibility of a default judgment.”
Gardner’s last chance to overturn the ruling would be an appeal to the Missouri Supreme Court, said Solomon’s attorney, David Roland of the libertarian Freedom Center of Missouri. He doesn’t consider that likely.
McGraugh ordered Gardner’s office to pay a $5,000 civil fine for the Sunshine Law violation and in Clayton’s opinion, the appeals court granted attorney fees because Solomon prevailed.
Gardner’s office could continue the fight by challenging McGraugh’s decisions on each document, but it would add to the cost, Roland said.
“If it matters that the meter will be rolling, it may influence their conduct,” Roland said.
In a statement issued late Tuesday, Gardner’s office said she would explore an appeal.
““We are disappointed with the court’s decision, and intend to investigate and pursue the office’s right to have the decision reviewed,” the statement read.
When Greitens resigned from office in June 2018 he faced felony charges stemming from allegations that he threatened to release a nude photograph of the woman — taken while she was blindfolded and her hands were bound — if she ever spoke publicly about the emotionally and physically abusive relationship.
In his 2019 request, Solomon asked Gardner for all her communications with the woman, her former husband, the ex-husband’s attorney, Al Watkins, and Missouri Times publisher Scott Faughn, who made $100,000 in cash payments to Watkins in the days leading up to the story about the alleged blackmail breaking on St. Louis television station KMOV.
Solomon also sought communications with key figures who opposed Greitens push to limit or end the state’s low income housing tax credit program; liberal billionaire George Soros and his political operations; and leaders of the Missouri House impeachment inquiry, including former Republican state Rep. Jay Barnes of Jefferson City.
During the investigation, Greitens and his attorneys alleged that Faughn’s payments originated from figures in the low-income house tax credit industry, noting that one of the sponsors of his weekly television talk show is Sterling Bank, which specializes in financing projects involving low-income housing tax credits.
Solomon filed his lawsuit in 2020 after Gardner’s office refused to turn over any of the records he sought. Gardner’s office claimed the records were closed because the prosecution of Greitens was dismissed and the records were privileged.
This story has been updated since it was first published.
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