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Hawley insider had seat at table in Secretary of State inquiry that cleared senator

KC Star
Jason Hancock, Steve Vockrodt and Lindsay Wise
Wednesday, March 6, 2019

Editor’s note: This story has been updated to include comments from Kelli Ford, spokeswoman for Sen. Josh Hawley.

A top lieutenant and campaign donor to Josh Hawley was allowed to sit in on interviews conducted as part of the investigation into whether Hawley illegally used government resources to support his successful bid for U.S. Senate.

The arrangement, detailed in documents obtained by The Kansas City Star under Missouri’s open records laws, has drawn criticism from some legal experts, who say it compromises the legitimacy of Secretary of State Jay Ashcroft’s conclusions.

“As a general rule, no serious investigator, civil or criminal, would voluntarily invite representatives of the party being investigated to sit in on initial witness interviews,” said Frank Bowman, a professor at the University of Missouri School of Law. “Not only is there an intimidation factor, particularly where the target is a sitting U.S. senator, but letting the target be represented in the interviews allows the target to shape his own response and to coach potential witnesses.”

Ashcroft, like Hawley, is a Republican. He announced last week that his investigation found no evidence that Hawley violated election law.

In written answers to questions from Ashcroft’s investigators, two of Hawley’s out-of-state consultants confirmed The Star’s earlier reporting that they helped steer the attorney general’s office at meetings and in conference calls starting in January 2017, shortly after Hawley’s swearing in as AG. Both stated that their consulting role in the official office ended before August 2017, when Hawley announced he was exploring a run against Democratic Sen. Claire McCaskill.

Ashcroft determined that Hawley had hired the political consultants to advance his priorities as attorney general and there was no evidence showing the consultants were used to promote him as a candidate.

Documents newly obtained by The Star include emails between Ashcroft’s office and Solicitor General John Sauer, who served as first assistant when Hawley was attorney general. Sauer also is a political ally of Hawley’s who donated $10,816 to his attorney general campaign and the maximum $5,400 to his U.S. Senate campaign.

The emails show that Ashcroft’s investigators allowed Sauer to sit in on interviews and notified him early on about which former attorney general office employees investigators planned to interview.

Mark Johnson, a lawyer in the Kansas City office of the Dentons law firm who specializes in election law, said best practices would be to keep witnesses away from the people who are the subject of the investigation.

“That even includes informing the attorney general’s office of people that might be interviewed,” Johnson said. “That certainly, at a minimum, could allow the attorney general’s office to get an indication of which direction the investigation is going.”

Ashcroft might say it was a matter of professional courtesy, Johnson said, but “I would say that’s a bad way of going about conducting a true, impartial investigation.”

George Washington Law Professor Stephen Saltzburg took a different view of Ashcroft’s handling of the investigation.

When one elected official investigates another there’s often a courtesy afforded, so nobody thinks it’s a politically motivated witch hunt, Saltzburg said.

“It sounds to me like an investigation that is intended to become eventually public,” Salzburg said. “It does mean that the attorney general’s in a position to try to potentially influence witnesses, but that’s a risk that the Secretary of State was willing to take in the interest of transparency … There’s nothing that shows me that somehow the attorney general is getting a break.”

Mary Graw Leary, professor of law at The Catholic University of America in Washington, D.C., and a former assistant U.S. Attorney in Massachusetts, also questioned Sauer’s participation in the interview process, saying “it would not make sense to have a loyalist to the subject of the investigation present for the interviews.”

Maura Browning, Ashcroft’s spokeswoman, said the witnesses who spoke with the secretary of state’s office as part of the investigation made it clear from the outset that they would only participate if Sauer was allowed to be present during interviews.

“Those individuals would not speak to us without him present,” Browning said.

A spokesman for the Missouri Attorney General’s Office, now led by Republican Eric Schmitt, said Sauer was present “in his official capacity” at interviews where witnesses consented to him being there. He was not representing the individuals being interviewed.

On Jan. 2, Sauer emailed the Secretary of State’s office noting that he had requested to “participate on behalf of the (attorney general’s office) in any such interviews, meetings, or discussions with former (attorney general’s office) employees.”

Sauer said in the email that the secretary of state’s office had agreed that if witnesses were fine with his participation that he would be allowed to be present and ask follow-up questions.

When one former staff member requested Sauer not be involved in the interview, Sauer warned Ashcroft’s investigators against asking the staffer about anything that might be considered privileged information, saying it would be “unethical and inappropriate.”

Frank Jung, Ashcroft’s general counsel, asked Sauer if he was arguing that the interview couldn’t take place without the attorney general’s office being involved.

If so, Jung wrote, the interview would not take place.

Sauer responded that he would not object to the interview being conducted, but the former staffer should not be asked any questions about things “such as legal advice she may have received while an (attorney general’s office) employee.”

The staff member in question ultimately declined to participate in an interview with Ashcroft’s office.

Sauer also expected to be able to review a final draft of the report before it was made public, but Ashcroft’s office refused.

Bowman, the University of Missouri law professor, called Sauer’s involvement in the investigation “peculiar.”

As solicitor general, Bowman said Sauer’s job is to defend the state during appeals, and “so far as I’m aware, he has no authority or official role in factual investigations, particularly investigations into his former boss’ conduct.”

Bowman also saw Sauer’s involvement as a potential conflict of interest, because he was formerly a top assistant to Hawley. Thus he was “a potential witness to whatever happened in relation to the attorney general’s office and the Hawley senate campaign.”

Sauer is a former employee of Cooper & Kirk, a high-profile Washington, D.C., law firm that provided the secretary of state’s office with Hawley’s written responses to investigators’ questions. Hawley’s office refused to answer how Hawley paid for Cooper & Kirk’s services. The firm worked for his Senate campaign last election cycle and represented Hawley for free during his attorney general campaign in 2016.

In addition to revealing Sauer’s role in the investigation, the documents recently obtained by The Star show Ashcroft’s office permitted Hawley and his out-of-state political consultants to answer questions in writing in lieu of interviews.

Browning, Ashcroft’s spokeswoman, said Hawley and his political consultants were allowed to answer questions in writing because “we do not have authority to compel witnesses to answer questions through a subpoena. Some of the witnesses agreed only to answer written questions, and we provided questions in writing at that request.”

Ashcroft had requested assistance in his investigation from Democratic state Auditor Nicole Galloway because her office has subpoena power. But the secretary of state’s office ultimately determined subpoena power was not needed because it said it got full cooperation from the attorney general’s office.

“Documents we requested were voluntarily provided by Attorney General Hawley’s office,” Browning said, “and additional requests were later satisfied by Attorney General Eric Schmitt. Both administrations cooperated with the inquiry.”

Browning also noted that the secretary of state’s office does not “have authority to grant whistleblower protections.”

Johnson, the Kansas City elections law attorney, said oral interviews are preferable to written answers when conducting an investigation. Allowing subjects to respond with written answers tends not to yield straightforward information, he said.
“Written answers are not as reliable as oral answers,” Johnson said. “Written answers are written by lawyers.”

Ashcroft launched his investigation late last year in response to a complaint filed by The American Democracy Legal Fund, a liberal nonprofit. That complaint referenced an Oct. 31 article by The Star that detailed how political consultants helped steer the attorney general’s office under Hawley’s watch.

The campaign consultants’ presence in Hawley’s attorney general office was in stark contrast to the image he projected during his 2016 race for attorney general, when he promised voters a new era in which political consultants would no longer influence Missouri’s government.

The Star had obtained emails, text messages and other records showing that Timmy Teepell and Gail Gitcho, political consultants from Louisiana and Massachusetts, gave direct guidance and tasks to Hawley’s taxpayer-funded staff.

The consultants flew to Missouri for official events and to meet with the attorney general’s staff during work hours in the state Supreme Court building, where the 39-year-old Republican’s official attorney general’s office was located.

The campaign-led strategy sessions began just weeks after Hawley was sworn in as attorney general in January 2017.

Written responses provided to Ashcroft by Hawley, Teepell and Gitcho confirm The Star’s reporting.

Teepell wrote that he was asked by Hawley to provide advice “in helping the office function as effectively as possible,” later saying he participated in meetings inside the attorney general’s office three times in January, April and June of 2017.

Hawley participated in the January meeting, Teepell said, but not the subsequent two meetings.

Teepell wrote that he also was involved in conference calls with official government staff in the attorney general’s office, and made three other trips to Missouri for official events.

Hawley’s attorneys said in written answers that “Teepell advised on the overall functioning of the office” while Gitcho advised on “executing (Hawley’s) agenda.”

Gitcho wrote that she attended two of the three meetings in the attorney general’s office, as well as a St. Louis event. Unlike Teepell, she did not recall Hawley being present at any meeting she attended.

Hawley’s attorney general staff frequently used private email in communications with Gitcho and Teepell.

Teepell told Ashcroft’s office that private email addresses were used because those were the email addresses he had for Hawley’s government staff.

Despite documents and written testimony confirming the details of The Star’s October report, Hawley’s spokeswoman demanded an apology.

“It’s time for The Kansas City Star to apologize for its misleading and dishonest reporting, now conclusively refuted, and report the facts rather than continuing its embarrassing and ideological crusade,” Kelli Ford said.

She stressed that Hawley had fully cooperated with the secretary of state’s investigation and she said the facts exonerate him and his office.

The attorney general’s office provided the secretary of state’s office with timesheets, financial records and purchasing card documents that Ashcroft’s office declined to turn over to The Star on Friday. The documents provided to The Star Friday include the written answers provided by Hawley, Gitcho and Teepell, but did not include any notes, transcripts or recordings of the interviews with current and former staff in the attorney general’s office.

Both Teepell and Gitcho requested the secretary of state’s office keep their answers confidential.

As The Star reported in October and Ashcroft’s investigation confirmed, there are no records of either consultant being paid or reimbursed with state funds. The consultants were paid by Hawley’s now-defunct attorney general campaign committee.

Under Missouri law, elected officials can tap into their campaign funds to pay for expenses incurred in connection with their official duties. But they cannot use state resources for political purposes.

Faculty name: 
Mark Johnson