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Courage shown in speaking up against John Swallow [KSL]

May 14, 2013 by Leave a Comment

The following is an op-ed piece that I wrote for KSL as posted this afternoon.

 

John Swallow

SALT LAKE CITY — I’m sure there was a moment when Traci Gundersen wondered if making a bar complaint against Utah Attorney General John Swallow was a wise step for her career.

As far as I can tell, she’s the only person who has been inside the attorney general’s office and has come forward to call “foul” on the attorney general.Unlike others who have publicly accused Swallow of wrongdoing in recent months, Gundersen is unique in that she is not under indictment, in jail or anonymous. In other words, unlike other Swallow accusers, she seems like an honest person with nothing to gain by the claim. Rather, she is a reputable and upstanding attorney who worked in the Utah attorney general’s office during Mark Shurtleff’s term.

Not only has she worked in the attorney general’s office — where she was when Swallow was first brought on by Shurtleff to be groomed as his successor — but her work there caught the attention of others in state government and she was lured away to a job as director of the Utah Division of Consumer Protection. Her job, from 2010 to until last week, when she left the office voluntarily, was to protect Utahns against scam artists and pyramid schemes.

A longtime employee of the state and a well-respected attorney, she must have known that accusing the state’s chief legal officer of violating the attorney/client relationship — one of the most important tenets of the legal profession — would put her on dangerous footing.

Unlike Jeremy Johnson, who is under indictment, accused of a litany of scams, Gunderson is an attorney in good standing with the Utah Bar.

Unlike Marc Sessions Jenson, who is currently interned at the Utah State Prison for failing to pay $4 million in restitution for scams, Gundersen has nothing to gain by attacking Swallow.

But she does have everything to lose.

By taking her complaint straight to the Utah Bar, a body that has the ability to discipline, disbar or impose sanctions on any member of the Utah Bar — including Swallow — she added yet another dimension to the layers of Swallow’s difficulties. Swallow will now need to undergo review by the Utah Bar Association.

With everything to lose, and nothing to gain, Gundersen’s bar complaint, filed quietly and without fanfare, is an act of true courage.

What makes Gundersen’s charge against Swallow so compelling is that it lies in an event that Swallow does not deny. On the contrary, in an interview with Doug Wright, Swallow said, on the air, that he was “proud” of the phone call.

The event in question is a recorded conversation between Swallow and what City Weekly described as “the owner of a telemarketing sales floor” by the name of Aaron Christner.

Recorded while Swallow was still running for attorney general — and still collecting checks for his campaign — Swallow is heard promising to take over the Utah Division of Consumer Protection — housed in the Utah Department of Commerce — and move it into the attorney general’s office.

What makes the call suspect is that at the time the Division of Consumer Protection already had a $400,000 civil penalty imposed on Christner and his business partner Ryan Jensen, as well as an order to cease and desist operations. Further, the Division of Consumer Protection was Swallow’s client, which Swallow readily acknowledged during the call. As his client, Swallow was under a duty not only to tell them that he had been contacted by Christner, the target of their efforts, but to consult with the division on how it would want to proceed.

In the real world, clients give direction on how to proceed with a case to their attorneys, not the other way around. Sure, attorneys know the law, but they cannot act without consulting with their client.

To collect on the penalty, the division referred the case against Christner, and the $400,000 penalty and cease and desist order, to Assistant Attorney General Jeff Buckner, who filed a case with the 2nd District Court in late 2011. However, Christner and Jensen were difficult to find, and throughout early 2012 the division continued to look for them.

Meanwhile, in defiance of the cease and desist order, Christner and Jensen opened another telemarketing company, the last of several proxy companies they are accused of using to hide alleged scams.

Meanwhile, during this time the Republican nomination battle to replace Shurtleff as attorney general was in full swing, and an associate of Christner’s suggested that he should get in contact with Swallow, specifically to attend a fundraising breakfast at Mimi’s Cafe. Christner took the advice to heart and called Swallow, then chief deputy attorney general under Shurtleff with oversight of “the civil divisions and all litigation involving the state of Utah.”

After a few preliminary questions, including Christner informing Swallow that he was being pursued by the Division of Consumer Protection for $400,000 in civil penalties, Swallow offers to help Christner sit down with Shurtleff and then bashes into the Division of Consumer Protection, his own client:

“(T)he way Utah’s so dysfunctional right now, is the client is the Department of Commerce and Consumer Protection, and that is something we, uh, control or even influence greatly, it’s because the work for the governor’s office, and now when I’m attorney general you know, this is kind of confidential, I will try to restructure it so consumer protection is under the attorney general (office) and the attorney general has more authority over those investigations. In fact, complete authority over that,” said Swallow, according to the complaint.

If you can’t tell, Swallow is telling Christner that while Swallow can’t do anything now — because Swallow’s client is the Division of Consumer Protection and they’re calling the shots — once he’s in charge, he’ll flip the relationship and start telling them who they can and cannot pursue.

It’s like putting the fox in charge of the hen house. The lawyer will take over the client’s organization and start calling the shots.

But that’s not even the rub, not yet. Swallow never told his client — the Division of Consumer Protection — that he had had a conversation with the guy that they had been chasing. The first they heard about it was from the newspaper when City Weekly published the recording of the conversation online.

If you’re looking for a rule — and I know you are — look no further than Rule 1.4 of the Rules of Professional Conduct, which requires that an attorney “inform” the client and “consult with the client about the means by which the client’s objectives are to be accomplished.”

Clearly, Swallow has not consulted nor informed his client of relevent and important communications with an accused malfactor.

Worse, Swallow is expressing an interest in the outcome of the case, a clear violation of another rule, that of Rule 1.8(i):

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client.

In this case, Swallow has been introduced to Christner through a fundraising function, has explained that when he is elected he will attempt a take-over of the government agency that is chasing Christner, and seeking political favor for the action.

If exchanging political contributions for a desired outcome in violation of the law is not a proprietary interest, I don’t know what is. Whatever it is, it isn’t honest.

And the complaint goes on.

Gundersen has now done what no honest person has yet done: she’s made a claim and backed it up by filing charges with the appropriate body. She’s put her name, and her reputation, on the line against a powerful man with powerful friends. Whether it results in moving the Utah Bar to take action against Swallow remains to be seen, but what is not in doubt is her courage.

I hope more like her will step forward in coming weeks and months. It’s time for the attorney general’s office to move out from under the cloud of scandal and restore its integrity, and I fear that we won’t see it happen while the current occupant retains his office.

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Filed Under: Characteristics of Lawyers, Leaders, News Round Up Tagged With: , , , , ,

Tact: a lesson in politics from Mike Mower

April 23, 2013 by 1 Comment

Mike MowerTonight, I caught up with Utah Governor Gary Herbert’s chief of staff, Mike Mower, at a Salt Lake County Young Republican meeting. Mower had a few simple pieces of advice that I thought were interesting.

Rather than push conservative talking points or take the opportunity to push the Governor’s agenda (ok, other than a plug for Governor Herbert’s main goal to create jobs and grow the economy, but that was about it), Mower shared three pieces of advice that, really, are good common sense and could apply in almost any career, not just in politics.

They could all be summed up in one word: tact.

1. “Be nice” was Mower’s first piece of advice. If you want to succeed in politics, realize that you will occasionally disagree with people with whom you must later cooperate. It is one thing to disagree on policy, Mower said. It is another thing altogether to attack someone personally. I might also call this the golden rule: treat others as you would have them treat you.

Mike Mower 2

2. “Network,” or connect with others. Engage others, build relationships, and grow your network. “There is energy in interconnectedness.”

3. Last, be knowledgeable. It’s one thing to have an opinion–it’s another thing to have an informed, rationed, and educated opinion, said Mower. When you are knowledgeable, you’ll be more persuasive and people, including policy makers, will listen to you.

Tie these together–the golden rule, interconnectedness, and knowledge–and you might find something like tact: “a keen sense of what to do or say in order to maintain good relations with others or avoid offense,” according to Merriam-Webster. More important than any political philosophy, is how we treat each other, how we interact.

Publius Online is participating in the Blogging from A to Z Challenge, a month-long quest to post every day (I know…I’ve missed a few days). Each day should match a letter of the alphabet. Today is the letter T, as in Tact.

 

 

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G is for “greatest British peacetime prime minister”

April 8, 2013 by 4 Comments
Former British Prime Minister Margaret Thatcher

Former British Prime Minister Margaret Thatcher (Photo credit: Wikipedia)

Unless you’ve been under a rock today, you’ve heard the news that Margaret Thatcher, former British Prime Minister, has died.

She was eulogized by current U.K. Prime Minister David Cameron as “the greatest British peacetime prime minister.”

Rest in peace, Margaret Thatcher.

Since I’m no expert on Britain’s “Iron Lady,” here’s a few hits from around the web (none of which I can take credit for):

Great quotes:

  • “If you just set out to be liked, you would be prepared to compromise on anything at any time, and you would achieve nothing.”
  • “I am in politics because of the conflict between good and evil, and I believe that in the end good will triumph.”
  • “If my critics saw me walking over the Thames they would say it was because I couldn’t swim.”
  • “Being powerful is like being a lady. If you have to tell people you are, you aren’t.”

And one of my favorites:

  • “Europe will never be like America. Europe is a product of history. America is a product of philosophy.”

anigif_enhanced-buzz-16364-1365434499-25

 

anigif_enhanced-buzz-19622-1365434487-13The Wall Street Journal told this story about Thatcher’s first meeting with Mikhail Gorbechev:

The close and candid relationships Mrs. Thatcher formed with both Soviet leader Mikhail Gorbachev and Mr. Reagan, and her vocal support of the uncompromising U.S. position toward the Soviet Union, proved an important element in the end of the Cold War.

At her first meeting with Mr. Gorbachev, she leaned over the table to tell her Soviet counterpart over lunch: “Welcome to the United Kingdom. I want our relationship to get off to a good start, and to make sure there is no misunderstanding between us—I hate Communism,” said Sir Bernard, her press secretary at the time.

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Is the union stronger? [Contributor]

February 20, 2013 by Leave a Comment

obama-state-union-2013-climate-change_64249_600x450President Obama’s State of the Union address was in trouble hardly after it began when he said that “we can say with renewed confidence that the state of our union is stronger.”

Economically, that’s hardly believable, with a $16.5 trillion national debt and annual budget deficit topping $1 trillion for the fourth consecutive year. Neither the legitimacy nor effectiveness of Obama’s proposals seemed to hardly improve from his introductory claim.

  • The president started his claim of a recently stronger America by saying that both parties worked together to reduce the deficit by more than $2.5 million, “mostly through spending cuts, but also by raising taxes on the wealthiest 1 percent of Americans.” That’s difficult to say, given that spending cuts to tax increases came at a 10:1 rate.
  • “We can’t ask senior citizens and working families,” he said, “to shoulder the entire burden of deficit reduction while asking nothing more from the wealthiest and the most powerful.” The problem is that U.S. government transfers to individuals in 1960 totaled about $24 billion in current dollars. By 2010, that total was almost 100 times as large. Even after adjusting for inflation and population growth, entitlement transfers to individuals have grown 727 percent over the past half-century.
  • “Already, the Affordable Care Act is helping to slow the growth of health care costs,” he said. That’s difficult since most provisions of the law—including a penalty for not paying for health insurance—doesn’t go into effect until 2014.
  • The Congressional Budget Office (“CBO”) has said that health care spending has grown much more slowly in recent years, both for federal programs and overall, than it did in previous years. In response to that slowing growth, the CBO reduced its projections for future Medicare spending. However, the CBO did not specifically credit the Affordable Care Act as the reason for lowering the projections. Some aspects of the law, the report said, will slightly increase federal outlays in Medicare and Medicaid.
  • “We produce more oil at home than we have in 15 years,” he boasted. Why then, are we paying so much more for gas than 15 years ago? Gas was $1.03 on average nationally in 1998—and even with inflation considered, a 40 percent change has occurred in that time frame.

The unfulfilling assertions amounted to an often-lazy address ideologically—if even enthusiastic orally—from the president. It occurred whether it was when he argued about defeating natural disasters even through executive order, or in stating that legislation like the Fairness Payment Act will be a cure-all to the oft-overrated issue of gender pay discrimination. If the suggestions aren’t already a violation of federalism as defined in the 10th amendment, they are too lofty in their objective, lacking a realism that the American public deserves to hear in tumultuous times.

After saying that the U.S. will continue to “keep the pressure on a Syrian regime that has murdered its own people and support opposition leaders that respect the rights of every Syrian,” Obama said his administration would “stand steadfast with Israel in pursuit of security and a lasting peace.’ Promises of the sort remain hollow given Obama’s incessant apologies about American behavior in foreign policy between 9/11 and the start of his presidency.

It was filled with a level of substance found in a sequence in the latter half of the speech, when the president suddenly diverted from his meticulous briefing of various policies to lay out a vague laundry list of issues. They included “eradicating poverty in the next two decades,” “connecting more people to the global economy,” “empowering women,” “giving our young and brightest minds new opportunities to serve” and “by realizing the promise of an AIDS-free generation.”

Generally, they are about as realizable as personally assuring that Iran wouldn’t use a nuclear weapon against the U.S., as Obama promised in his final foreign policy debate against Mitt Romney in late October in Boca Raton, Fla.

Though many of the president’s expectations outlined until his ambiguous list were misaligned or not appropriate for his national administration to mandate, at least he hadn’t yet delved into nothing more than feel-good fodder. Now, we can’t attribute that to him after all.

The president did get it right near the end of the address.

“It is not a bigger government we need,” Obama said, “but a smarter government that sets priorities and invests in broad-based growth.”

That’s refreshing. But given several trepidations about some of his other expectations, validity of the statement is, once again, in question.

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For Lincoln’s birthday, a book recommendation: Crisis of the House Divided by Harry Jaffa

February 12, 2013 by 1 Comment
English: Abraham Lincoln - Photo taken in Feb....

English: Abraham Lincoln – Photo taken in Feb. 1860 by Mathew Brady. (Photo credit: Wikipedia)

Today is Lincoln’s birthday. Might I suggest a book on the man who may have been our greatest president?

It might be said of Abraham Lincoln, born on this day in 1809, that if he had not existed, we would have needed to invent him. With very rare exception, no person in American political history has had such a lasting and permanent effect on the American psyche, revered with an awe usually reserved for the founding generation.

Whether it was his ability to turn a phrase, tell a story, or move men (and the nation) with the power of his words, Lincoln stands unique among American presidents. He stood astride one of the most tumultuous times of our nation’s history, perhaps as more than just the coincidental president when the crisis of the question of slavery divided our nation.

In his monograph on the Lincoln-Douglas debates–Crisis of the House Divided–Harry Jaffa analyzes Lincoln’s political principles from his reentry into politics in 1854 to his Senate campaign against Stephen Douglas in 1858. His theory is intriguing: “had not Lincoln challenged Douglas in 1858, there would probably have been no subsequent crisis, or at least none of the same nature.” 

Cover of "Crisis of the House Divided: An...

Cover via Amazon

In other words, by taking on Douglas, and destroying him as the leader of a national political coalition, “dividing him from Republicans and the South,”  Lincoln consciously set the nation on a course that would constitutionally commit it to his view of national political responsibility, a view at odds with the South’s interest in maintaining slavery.

At the relatively young age of “fourscore” years, our nation still allowed the institution of slavery a place, leaving as yet unfulfilled the promises of the Declaration of Independence:

We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness[...]

What happened next was the deadliest conflict in American history, killing between 620,000 and 851,000 men in battle, to say nothing of civilian deaths. When it ended, the South lay in ruins, Lincoln was dead by an assassin’s bullet, and despite constitutional amendments ending slavery, decades more would pass before the children of slaves would begin to see the equality under the law that Lincoln believed was embodied in the Declaration of Independence.

What was it about the debates, and Lincoln’s political philosophy, that had the power to move the nation in such a dramatic, and violent, way?

The book is Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates by Harry Jaffa, and though it is over fifty years old, it remains a classic on the topic.  As you celebrate President’s Day, take a moment to learn a little more about how Lincoln steered our country and cemented his place in history, starting before he ever took on the mantle of the Presidency.

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Review | HHhH by Laurent Binet

February 7, 2013 by Leave a Comment

HHhH: A Novel

HHhH may be one of the most intriguing novels I have read in recent memory. Translated from French, its title is based on a German sentence: “Himmlers Hirn heisst Heydrich”, or “Himmler’s brain is called Heydrich”. It is the story of the 1942 attack in Prague on Reinhard Heydrich, one of the most dangerous men in the Hitler‘s inner circle, if not in all of Nazi Germany, and one of the main architects of the “Final Solution,” the Holocaust. Known variously as “the Butcher of Prague” by those who feared him and “the man with the iron heart” by Hitler, Heydrich was a dangerous, evil man.

But Binet’s novel, cleverly if awkwardly named, is something more, and something different. Perhaps the best way to describe it is to say that the novel is as much about Binet’s obsession with the attack, the Czech and Slovak heroes Jozef Gabćik and Jan Kubiš who carried it out, and its central villain, Heydrich himself. I have heard the writing of a novel described as requiring a certain level of insanity and obsession, and Binet demonstrates a level of intense scrutiny that could match this description.

Reinhard Heydrich shown as a SS-Gruppenführer ...

Reinhard Heydrich shown as a SS-Gruppenführer and General of the Police (Photo credit: Wikipedia)

Almost pageant like, his unconventional style puts him in the middle of the book, a narrator that at times reminded me of the Chorus in the Prologue of Shakespeare’s Henry V, eager to be both in the scene and to describe it. Indeed, we move with him as he tells the story, quibbling over what details to include, what to exclude, how to tell the scene, and what were the characters really thinking. For, after all, the characters lived, were real, and the events described happened.

Strange and unconventional, but oddly gripping and thrilling, even as it ends tragic and triumphant. For the end of the story is not a secret–you can find the facts of the tale on Wikipedia. But the imagination with which Binet approaches his subject, the path his obsession takes, is worth hearing it told in his voice. “O for a Muse of fire[...]”

(Review published previously at Attack of the Books!)

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Obama’s surreal fiscal cliff speech

December 31, 2012 by 2 Comments

After a refreshing vacation to Hawaii for Christmas, President Obama took the stage this afternoon (EST) to make a speech on the impending fiscal cliff. Driving home during lunch, I listened to KSL’s Doug Wright describe the scene, and I arrived home just in time to watch the President speak.

Wright was describing the scene while waiting for the President to take the stage, and since Obama was late, he tried guessing where they were at. He could see a podium, but he after listing through the typical rooms where Obama addresses the nation from the White House, he concluded that he didn’t know where they were.

Then a prep team started to arrange people in the room, standing them on tiered levels behind the podium. Finally, Obama came in, and about then I found a live stream.

To listen to him, though, you wouldn’t have known that he was addressing a national fiscal crisis that could send America’s economy into a spiral. Or that nearly every income earning American is about to a tax hike. Or that several rounds of negotiations had failed, first with Speaker John Boehner in the House, and then between Senators Harry Reid and Mitch McConnell in the Senate. You wouldn’t have been able to guess that his own Vice President had been called upon by McConnell to salvage what Reid clearly could not.

Nope. You would have thought that he was ready for a fun night of ringing in the New Year, the first of his second term.

At a time when almost everyone, but the most partisan on the political left, agrees that spending has got to be reigned if the deficit is going to be cut, Obama came to the stage and mocked his opponents, mocked Congress, and warned that raising taxes on the wealthy was only the beginning.

Every time he discussed a deal, Obama called for a “balanced” deal, by which he means that tax hikes must be included.

And I want to make clear that any agreement we have to deal with these automatic spending cuts that are being threatened for next month, those also have to be balanced, because, remember, my principle always has been let’s do things in a balanced, responsible way. And that means the revenues have to be part of the equation in turning off the sequester and eliminating these automatic spending cuts, as well as spending cuts.

Now, the same is true for anyfuture deficit agreement. Obviously we’re going to have to do more to reduce our debt and our deficit. I’m willing to do more, but it’s going to have to be balanced. We’re going to have do it in a balanced responsible way.

In other words, being “responsible” and “balanced” means raising tax rates. Say what you will about taxes, and I think there are fair arguments to be made both ways about their effect on the economy, Obama’s sole solution seems to be increasing tax rates without any discussion of what spending he’s willing to decrease in order to prevent the federal debt from growing.

And even the President’s own bean counters agree that raising taxes will not stop the deficit and federal debt from growing.

In fact, he all but sounded like he was trying to scuttle negotiations that were taking place across town to force tax hikes on all Americans, all so he can point at the Republican controlled House of Representatives and say: “See? See what they did? You can’t trust them.”

What he did say, after blaming the failure to reach a grand deal on the fiscal cliff on Congress, was that we should

Keep in mind that just last month Republicans in Congress said they would never agree to raise tax rates on the wealthiest Americans. Obviously, the agreement that’s currently discussed would raise those rates, and raise them permanently.

That’s not the diplomacy of a deal maker or a leader. That’s just petty snubbing. Why would any Republican want to compromise when they know they’re going to have it stuck in their face before they can even pen the agreement on paper?

After spending most of his speech acting like he wanted negotiations to fail, Obama closed by joking about staying in DC for New Years, and the obviously supporting audience laughed, again.  Obama made an appeal to get past politics, then, all but ignoring that he had spent the previous ten minutes playing politics:

But the — the people who are with me here today, the people who are watching at home, they need our leaders in Congress to succeed. They need us — they need us to all stay focused on them. Not on politics. Not on, you know, special interests. They need to be focused on families, students, grandmas, you know, folks who are out there working really, really hard, and are just looking for a fair shot, and some reward for that hard work. They expect our leaders to succeed on their behalf. So do I.

It was strange, surreal, and odd, and even Doug Wright commented as such as the speech, to an adoring crowd, ended.

The campaign is over, Mr. President. It’s time to start acting like a leader, not like a guy who just won class president of the local high school. Leading doesn’t happen by demanding what you want and making fun of people who oppose you. It happens by treating them with grace and respect, seeking compromise, and recognizing their interests are as important as your own.  Like you, they are trying to do what’s best for America, and just because you see the course differently is no reason to demean and deride from the bully pulpit of the Presidency.

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