November 26, 2014

Ending the Swallow Investigation Due to Cost Ignores the Cost to Public Trust

SwallowA few are calling for a halt in the House investigation of Attorney General John Swallow due to the cost and the Department of Justice’s decision not to prosecute. However, failure to continue investigation would not only short circuit other investigations by hampering evidence collection, but would also fail to address the loss of public trust in the Utah Attorney General’s office.


When the Department of Justice issued a letter to Utah Attorney General John Swallow indicating that it would not prosecute him, or Mark Shurtleff, I am sure that Swallow saw something akin a ray of sunshine.

After months of headlines detailing the litany of accusations against him, it sounded like the turning of the tide. Riding that wave of “good news” for the AG,  Representative Ken Ivory, a vocal critic of the Utah House’s exercise of its oversight role, felt confident getting back on his metaphorical soap box to call for a “time-out” on the legislature’s investigation of Swallow

After all, Ivory said, if the Feds aren’t pursuing Swallow over the bribery charge, perhaps we should reevaluate our investigation after others have tied up their investigation?

[On September 21], the Utah House of Representatives presse[d] ahead with an open-ended investigation of Attorney General John Swallow, despite the fact that federal investigators have shuttered their probe. Perhaps, like the father in the heat of refereeing a child’s ballgame, our heavily Republican House could benefit from the perspective of a much-needed timeout, rather than expending $3 million of taxpayers’ money to make sure we’re not accused of favoring one of our own.

Ken Ivory at Rules Committee

Representative Ken Ivory.

Aside from using a metaphor that really doesn’t apply to the oversight responsibilities of the legislature, it may be the first time that Ivory has ever deferred to the federal government. In anything.

More important, though, is this: why should the legislature defer its oversight responsibilities to anyone?

The answer is that it shouldn’t. As the highest legislative body in the state, the legislature has duty to the people of Utah to check the actions of the state executive officers, including the Attorney General. It isn’t the job of the criminal prosecutor alone to keep Utah’s executive officers honest.

The legislature would be derelict if it did not act on the credible allegations against Swallow, allegations which matter not because they have been made, but because they are documented and have diminished the public’s trust in the Utah Attorney General’s office in particular and in Utah government in general.  If the legislature failed to even examine the documentation, to conduct its investigation, it would be failing the people of Utah.

Not only that, but ending, or even “calling a timeout” on the legislative investigation would hurt or slow the investigations of the Davis and Salt Lake County District Attorneys.

Davis County District Attorney, Republican Troy Rawlings.

Davis County District Attorney, Republican Troy Rawlings.

Among those accusation still outstanding are at least ten violations of state law that Davis County District Attorney Troy Rawlings has stated are under investigation by himself and Salt Lake DA Sim Gill. Further, the those investigations are hoping for assistance from the legislative investigation.

At this point, there are around 10 sections of the Utah Code to contemplate in light of developing facts. We hope the legislative process will supplement the investigations significantly. We look forward to obtaining access to that material prior to making decisions (although there are some statute of limitations issues to discuss in this context). Frankly, the legislative investigation process by the Utah House of Representatives may yield potentially dispositive evidence one way or the other relate to at least one of the subjects.

No wonder it would be in Swallow’s benefit to short-circuit the Legislative investigation on grounds that it is expensive: it would remove one more avenue for the District Attorneys to use to gather evidence.


Meanwhile, Shurtleff took to the airwaves to claim that the investigation by the DAs was biased and a result of political motivations. However, with that possibility in mind, Rawlings sent a letter to attorneys that had supported Swallow’s campaign, seeking their input on the ten allegations against Swallow. As he argues, “If my memory is correct, each of you supported the candidacy of John Swallow for Utah AG.[…]”

Sim and I are confident we (he and I) can and will be fair and objective. However, we also want public confidence (to the degree that is possible) in both the decision-making process as well as any result (moving forward,standing down, or whatever the appropriate consensus determination is from fact and law). We are keenly aware that any decisions we make about this matter will be attacked and questioned. We are not afraid of the evidence, politics or any decision in any direction. However, obviously we want the process and decisions be fair, objective and impartial. The general public must see that both process and outcome, no matter what direction the case goes, were not motivated by a skewed agenda.

Therefore, it is appropriate and desirable that a supporter (preferably multiple supporters) of current Utah AG John Swallow’s former campaign have fully vested and participating seats at this prosecution vetting table.

[Emphasis added. See the full letter embedded below.]

In other words, to avoid the appearance of partiality, Rawlings and Gill are running the charges through a vetting process by Swallow’s own supporters, first, before coming out against the AG.

That’s a better deal than most criminals get from any prosecutor and an effort far above the line to show a level impartiality that can only strengthen, or end, this investigation.

It’s also far more than Swallow ever did while meeting with the legion of now indicted businessmen while he was drumming up money for his campaign for state office.


Which returns us from the distractions (of questioning Davis and Salt Lake’s prosecutors impartiality and  complaining about the House investigation’s cost, really the expense that Swallow’s behavior is costing the state) to the more important issues raised by the myriad of accusations against Swallow.

You can find a very thorough and easy to follow infographic on the Salt Lake Tribune’s web site, but here are the accusations in summary form.

  • Jeremy Johnson: Accuses Swallow of trying to broker a bribery deal to protect Johnson’s company.
  • Cement Consulting: Swallow failed to report money he received from Richard Rawle, who was working to help Johnson, claiming that it was because it was “held in trust” for his children.
  • Houseboat: Swallow had a conversation with Johnson where he questioned the paper trail about Swallow’s use of Johnson’s 75-foot houseboat on Lake Powell.

“Is there any paper trail on that?” Swallow asked Johnson. “There’s no paper trail on the houseboat,” Johnson answered. “Nobody knows about it.” Swallow used the houseboat at Lake Powell in 2010, while he was chief deputy attorney general.

  • Making Deals while Chief Deputy Attorney General: Swallow helped broker business deals between Johnson and Rawle’s cash-for-gold business and Check City.
  • Protection for Donors: Three businessmen in direct marketing and Internet sales have told the Tribune that they were told donating to the Swallow campaign would be beneficial to their business. The only way the AG can be beneficial to any business is if that business is under potential threat of prosecution.
  • Talking with Targets: While campaigning for AG, Swallow had a phone conversation with Aaron Christner who had been fined $400,000 by the Utah Division of Consumer Protection, which his office was charged with representing in pursuing Christner, and told Christner that if elected he was going to try to move the Division of Consumer Protection under his control.
  • Marc Jensen: “In early 2008, Marc Sessions Jenson was trying to hammer out a plea deal on securities-fraud charges. […]

Jenson says he was told by then-Attorney General Shurtleff to make regular payments to Shurtleff’s friend Tim Lawson. In a plea deal, Jenson was required to pay $4.1 million in restitution. In 2009, receipts show Shurtleff and Swallow visited Jenson’s posh villa in Newport Beach, Calif., charging golf and meals on Jenson’s dime. Swallow returned in July with his wife. Jenson says he paid Lawson in excess of $200,000. Jenson also says he had no choice but to pay their tab and alleges he was extorted.

  • Mount Holly: “Jenson said Swallow promised he could use his influence in the A.G.’s office to help with the [Mount Holly development]. In exchange, Jenson said Swallow demanded a cabin and ownership stake — valued at $1.5 million — in the resort.”
  • And others…

If these were just the ravings of men in orange jump suits, they might be dismissed summarily. However, given the documentation, the accusations are not easily pushed aside. Further, these are all people who Swallow has called, at one time or another, friends and donors. If their friendship and money was good enough to get Swallow elected, why would their testimony be insufficient to raise questions about his fitness for office?

Utahns have a right to know if their attorney general has been honest in his dealings or if he has abused his office and his position as a Deputy of the Attorney General prior to his election.  The efforts to end or halt the House investigation may be couched in language about the high expense, but the result will be to damage the still running investigations by the Davis and Salt Lake County prosecutors.


  Rawlings Letter Re John Swallow by Robert Gehrke

 

About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

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