Attorney General Obstructs Audit: Legal Analysis

State Auditor Nicole Galloway released an audit on the Attorney General’s Office on February 6. The audit found that former Attorney General and now-Senator Josh Hawley used state resources for political purposes.

From the emails included in the audit, it’s clear that the current Attorney General attempted to obstruct the investigation, violated attorney-client privilege, and threatened the Auditor with felony prosecution when she refused to allow him to direct the audit of his office.

This obstruction is an abuse of power.

Legal Analysis

The Attorney General has cited RSMo. 29.200.17 in his threat to prosecute the Auditor for publishing transcripts of interviews she conducted while auditing the Attorney General’s Office. This is an attempt to obstruct the Auditor’s independent investigation.

RSMo. 29.200.17 makes “audit workpapers and related supportive materials” confidential “[e]xcept as provided in this section.” Therefore, to determine the authority of the Auditor, the rest of the section needs to be read too.

First, RSMo. 29.200.16 provides the Auditor with wide power to “adopt policies and procedures necessary’ to investigate ‘allegations of improper governmental activities.” This authority encompasses the investigation into malfeasance at the Attorney General’s Office and grants the Auditor the flexibility to determine how the investigation should be conducted.

Second, RSMo. 29.200.11 requires the Auditor to make a report of facts to appropriate officials in cases of law violations or malfeasance by a public officer. The report of facts does not exclude transcripts, interviews, depositions, or any other evidence.

Third, RSMo. 29.200.13 requires the Auditor to publish the report, including on her website.

Nowhere does the law say that the Auditor may not publish the evidence she used to make a report. The opposite is true. The law requires her to make a report “of facts in the auditor’s possession” when it comes to corruption investigations.

The Attorney General also wrongly cites the Yellow Book, a governmental auditing accounting standard published online. The 2011 standard was the one in effect at the time of this audit.

The Yellow Book does not state that any of the evidence the Auditor published is confidential, but it does address the situation when the target of an audit is unhappy and makes threats to the Auditor: “In resolving those conflicts and pressures, acting with integrity means that auditors place priority on their responsibilities to the public interest.” Yellow Book 1.18 (2011). The Auditor followed the requirements of the law and the ethical guidelines of her profession.

Conclusion

The Attorney General clearly attempted to interfere with an audit requested by the Secretary of State and legally conducted by the Auditor. His attempt to obstruct a corruption investigation — especially considering the Attorney General’s role previously as counsel for the Auditor and as the target of the audit — should be investigated by the Legislature. The Attorney General obstructed an investigation, appears to have violated attorney-client privilege, and made an improper threat to a statewide official attempting to complete her constitutional duties. And now, as a result of the Attorney General’s corrupt behavior, the Auditor likely cannot use the Attorney General’s Office as legal counsel, adding costs to taxpayers. The Attorney General’s legal conclusions are incorrect, and his behavior warrants legislative investigation.

What Can We Do?

This is just another example of why we need a new Attorney General, someone who believes in transparency and who understands the role of the office.

The current political appointee we have never worked in the office before, and it shows.

As Attorney General, I will restore the integrity of the office, actually show up in our communities around the state, and get to work on the important issues our Attorney General should be working on instead of getting into fights with our state Auditor.

Help us get an Attorney General who works for us at www.EladGross.org.