BROOKE GLADSTONE: If freedom of speech is the cornerstone of democracy, then holding up the other corner is freedom of information. No accountability, no informed electorate, democracy starts to crumble, and that’s why we have government disclosure laws. We could take this story to Washington but instead let's go to Missouri, where the former governor and his staff made use of a special app, an app that destroys messages as soon as they’re read. Two attorneys are suing former Governor Eric Greitens over his use of the Confide app to communicate with his staffers. Greitens resigned in June in the face of impeachment threats following an extramarital affair and a campaign finance inquiry but the lawsuit hasn’t gone away.

Barbara Smith, an attorney representing the Governor's Office, argued in June that the state's Public Records Law doesn't apply because the records don’t exist, because the app deleted them.

Mark Pedroli in one of the attorneys suing Greitens.

MARK PEDROLI: Most [LAUGHS] of the Governor’s Office had the app and they were using it to communicate with one another about public business.

BROOKE GLADSTONE: How do you know that?

MARK PEDROLI: Well, we actually just recently were able to prove that with what I would call a smoking gun. It was a text message where two people who were also communicating on Confide were talking off of Confide about their communications on Confide, if you follow that.

BROOKE GLADSTONE: Yes. [LAUGHS]

MARK PEDROLI: It was the draft document on a policy argument. “I can't read your corrections on Confide.” [LAUGHS]

BROOKE GLADSTONE: Oh!

MARK PEDROLI: “So please, send it to me normally so I can read the changes that you made to this policy document.” So it was a clear case of people discussing public business. And think about it, how lucky was that? That was sort of a needle in the haystack, to be able to get a conversation on a regular text message about a conversation that wasn't working [LAUGHS] on Confide.

BROOKE GLADSTONE: It might help us to know little bit more Greitens --

MARK PEDROLI: Mm-hmm.

BROOKE GLADSTONE: -- who was this rising star in the Republican Party.

MARK PEDROLI: Right. He had connections to the Vice President's Office, to all of these people who are terrific fundraisers. And another key point is Greitens had raised a tremendous sum of money from outside of the state, dark money coming in. The idea of them using Confide, I mean, it was always a deep concern to me because of the dark money. When you're raising millions of dollars for 501(c)(3)s -- A New Missouri was an example of a 501(c)(3) that raised millions of dollars.

BROOKE GLADSTONE: These are PACs.

MARK PEDROLI: It’s a PAC to serve the governor’s interests but the problem is, is we don’t know if there’s one donor or 20.

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: And we don’t know how much they’re getting and what do they want.

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: These could be, you know, extremely wealthy people from out of state who just want something, you know, long term or these could be corporations in state who want policies changed for profit.

BROOKE GLADSTONE: So to deal with money issues that you don't want to disclose, you go on Confide. I understand he also was accused of illegally obtaining a donor list to a charity he founded --

MARK PEDROLI: Mm-hmm, mm-hmm.

BROOKE GLADSTONE: -- and using it to raise money for his campaign?

MARK PEDROLI: Well, that was an allegation that was made by the House of Representatives in Missouri. After he stepped down and resigned, most of these investigations went away.

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: And I do believe there were a lot of people on the committee who spearheaded this investigation into Governor Greitens who did not want the investigation to go away. So they have filed other complaints with various agencies in Missouri. There are at least [LAUGHS] three, four or five investigations that were ongoing about wrongful or criminal activity.

BROOKE GLADSTONE: The story, however, most people outside the state would be familiar with, if they've ever heard of Governor Eric Greitens at all, would be his affair.

MARK PEDROLI: Sure. There was an allegation of a photograph taken non-consensually of the woman where it possibly dovetailed into the use of apps like Confide to destroy the communication. If someone took a photograph of somebody and they wanted to send it, maybe they would use that app,

Now, we filed our suit long before that story broke. There was some discussion by the Prosecutor's Office in St. Louis where they said that Confide was at the heart of their case, so there must have been some concerns that Confide was also used for that.

BROOKE GLADSTONE: Is there a situation in which Greitens and his staff might have used the Confide app for perfectly legitimate reasons? I mean, does it necessarily mean that there was some communication going on that should have been in the public domain?

MARK PEDROLI: We already know that they did. The next question is, to what extent did the use of Confide go in discussing public business? Was it 90 percent, was it group texts? We don't know because the app destroys the communications. Like I told the judge in this case, there's always been three tools for us to find out what they communicated about. One is a subpoena to Confide and asking them, two, a forensic expert that can look at the particles and the artifacts on that phone to recreate messages. But the easiest tool is deposition testimony. I want to go to the staff, I want to go to the Governor and I want to sit down at law and I want to ask them, well, what did you talk about, because, frankly, at this point in time, I think that there’s going to be a lot of people who are going to tell me the truth.

Right before we filed the lawsuit, Attorney General Josh Hawley

opened an inquiry into the use of Confide in the Governor's Office. And I think five people admitted to using it in some way dealing with government business but they said it was purely logistical. The [LAUGHS] they, they said this was about planning meetings. [LAUGHING]

BROOKE GLADSTONE: They made restaurant reservations on Confide?

MARK PEDROLI: Right. The whole State of Missouri collectively laughed when that was the answer. Now, that’s the last thing you do on Confide, set up logistics and meetings because [LAUGHS] there’s, there’s nothing to go reference after you send it to know what time you have to be there.

[BROOKE LAUGHS]

The idea that they said this was just crazy, and people couldn’t believe it.

BROOKE GLADSTONE: You said the easiest way to move ahead with your lawsuit, which is in discovery now --

MARK PEDROLI: Right.

BROOKE GLADSTONE: -- is to depose the Governor and his staff.

MARK PEDROLI: And, and I have asked the judge. The judge said, not now. This is where it gets interesting. The judge granted a stay to the current governor, the new governor, because we had asked for a stay of discovery on all my depositions. I had served subpoenas to people who had used Confide because they were one of the 20 people --

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: -- that was turned over pursuant to court order. You know, I was probably days away from sitting down and finally getting into this communications network. And what the judge did was he, he told me to sequentially do my discovery. So he said, sequence one will be send your subpoena to Confide. See if they have the communications. If they don't, then go to sequence two. Sequence two is make an argument to me that there might be some of these communications on their physical phones and maybe there’s a, a way we can get a forensic expert to look at the phones. And if that doesn't yield any of the actual messages that were sent and received on Confide, come back to me later and ask for further discovery.

We are doing that now. The new Governor is gonna make an argument, probably through an expert, that we can't get the messages from the forensics on the phone, that we’re not going to be able to get it through Confide. Then they're gonna say, ‘cause they’ve already indicated this, that the case should be dismissed.

BROOKE GLADSTONE: Now, the thing is, is you can find out who has Confide on their phone because you can just go to Confide and look it up with a phone number?

MARK PEDROLI: Right. The -- and here's the problem though is ‘cause when the Kansas City Star reporter Jason Hancock wrote the story in December of last year, my guess is, is that it shocked the, the Office of the Governor. A lot of people probably dropped their accounts. So what happened is the attorney general came in. This is a very political issue here too in, in Missouri ‘cause, as you may or may not understand, our attorney general is running against Claire McCaskill for the Senate. It’s a big national election, obviously. Everyone’s [LAUGHS] gonna be, you can bet on it, dumping a lot of money in the State of Missouri. He’s a Republican. Greitens was a Republican. He had to investigate, opened an inquiry into it but what he did not do, which was my complaint, was file a lawsuit. He deprived himself of the primary tool of any litigator, and that's the power of the court to issue a subpoena for evidence.

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: So instead, what he did was he went in and had interviews with the people in the Governor's Office. Well, what ended up happening was the Governor's Office told him that there was only five or eight people who had used Confide. Fast forward a few months later after my lawsuit, we had subpoena power. We got a court order from the judge telling the Office of the Governor to turn over the names and the phone numbers of all the people who used Confide in the Governor's Office. And it went from 8 people to 20. Our lawsuit yielded more information than an attorney general inquiry, which raises a whole host of questions. For example, can the Office of the Governor lie to the top cop of the state? What's the fallout, if you do?

BROOKE GLADSTONE: So when do you get to go to trial?

MARK PEDROLI: Well, hopefully any day now we’re going to get the information from Confide --

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: -- ‘cause they’ve already publicly announced on Twitter [LAUGHS] that they don’t have anything.

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: The next step is we go to the judge, we talk to an expert, a forensic expert to determine whether or not these 20 people and their 20 cellphones can somehow be forensically analyzed to reproduce messages that were sent on Confide. If the answer to that is no, then we go to our third tool. The judge should allow me to take the depositions of the people who used Confide to determine the extent of its use to conduct public business. That will probably happen either at the end of the summer or early fall.

And let me add that in the Governor's Office they did issue public phones. But if you ask me my opinion, those public phones were put in a drawer. One of the, the documents that was produced said, never use your public phone to conduct public business by text. So it did look like it was designed to evade the law. It was a conspiracy.

BROOKE GLADSTONE: It’s hard to believe that this is happening on the state level so widely and on the federal level.

MARK PEDROLI: This is what’s always captured me about 501(c)(4)s and dark money groups.

BROOKE GLADSTONE: Mm-hmm.

MARK PEDROLI: These state laws, there’s a race to the bottom on protecting the privacy of people to drive in more money in capital investment or incorporation in these states, and it's very disturbing.

BROOKE GLADSTONE: When you talk about LLCs and these dark money groups, how do they function?

MARK PEDROLI: Any way they want. An LLC is just an organizational stamp. They could just exist, have a bank account and write checks.

BROOKE GLADSTONE: But if you give money to a candidate, you have to disclose that, right?

MARK PEDROLI: But what if you give it to A New Missouri, which was the name of the 501(c)(4), and what if the person that's giving it to them is a front? I mean, even banks have Know Your Customer laws, and there's no way to know who the top donors were to my governor. So if you add dark money and dark communications, tell me how foreign governments won't be able to pour in millions of dollars. It’s easy.

BROOKE GLADSTONE: Well, thank you very much.

MARK PEDROLI: Thank you so much.

[MUSIC UP & UNDER]

BROOKE GLADSTONE: Mark Pedroli is a Missouri attorney suing former Governor Eric Greitens for allegedly violating open records laws. His organization is called The Sunshine Project. We tried to reach the former Governor's Office and his associates from those days. We never heard back.

BOB GARFIELD: Coming up, why we have to start fighting fire with fire.

BROOKE GLADSTONE: This is On the Media.