Every time Rod Snow, attorney for John Swallow, sends a letter (embedded below) to the Utah state legislature’s leadership to tell them their own legal counsel is wrong, I can’t tell if I should admire him or roll my eyes.
I want to admire him, because Snow is regarded highly in Utah’s legal community and has taken on a scandal plagued client who is under investigation by multiple government agencies, two district attorneys, the Lieutenant Governor, and the Utah legislature.
Or should I roll my eyes? Sow’s letters (this is the third, I believe) to legislative leadership look less like legal briefs and more like political bluff. Written with deft and careful language, they paint a picture that seems more attuned to politics than the law, though they are all cloaked in legal tones.
In other words, it’s nothing that would persuade a judge, but might look like it to the untrained eye.
Flawed Legal Arguments
The law that Snow discusses in his letter is not on point, which is why he is careful to describe the facts that are favorable to Swallow, but not use language too firmly legal. After all, this isn’t a legal brief–it’s a public relations missive.
Snow argues, as he has before, that Swallow can’t be investigated for anything occurring before he took office, sticking his finger in the eye legislators, even mischaracterizing the impeachment authority claimed by legislators as “you can do anything you want[,]” a mockery of the extensive research that legislative counsel has conducted and sent out to the entire Utah legislature in an effort to inform the process.
In other words, it seems like an odd way to win friends and influence legislators. It’s a body full of Type A personalities and telling them they can’t do what is pretty clearly in their purview is not going to win votes.
But back to the wrongness of Snow’s legal argument: as many legislators have repeatedly noted, the argument that anything Swallow did before he took office is off-limits is like saying that Swallow can be wiped clean of all misdeeds by virtue of his election to office. It’s a laughable, argument, not to mention completely wrong.
The assumption that this entire process somehow falls under “due process” protections is also wrong. Due process implicates property rights, and none are at issue here. Even if the investigative committee finds something, even if the Utah House votes to impeach, and even if the Senate then convicts Swallow on the impeachment charges, no property interest will be affected because Swallow does not have a property interest in the attorney general’s office.
Swallow will only be removed from office. It’ll still be up to the FBI, DOJ, Utah and Salt Lake County DAs, and the LG to take things any further.
Impeachment is merely a political check of the legislature on the abuse of power by a member of the executive branch. The investigative committee’s job, and the House’s job, is to determine if Swallow has done anything to merit impeachment.
Curiouser and Curiouser: Subpoena Power and the RFP Process
If this were all that Snow argued–that Swallow could not be held responsible by the legislature for acts preceding his term in office–we could chalk it up to bluster and bluff.
But it’s not all. Snow makes two strange comments near the end of his letter.
First, he raises questions about the RFP process the Utah House has initiated to find attorneys for the investigation. He says that attorneys at his firm, as well as Mark Shurtleff’s former firm in D.C. (the one he was unceremoniously dropped from when it emerged that he may have tried to shake down a businessman for $2 million over breakfast), were contacted to apply for the RFP.
It’s almost like Snow is trying to cast doubt on the RFP process as tainted for seeking proposals from attorneys that clearly have a conflict of interest.
What he fails to mention is that every attorney licensed to practice law in the state received the RFP as it was sent out by the Utah Bar.
Then, strangely, he asks that Swallow be allowed to have subpoena power during the investigation. This is akin to a suspect in a criminal case requesting that he have the right to subpoena witnesses…before he’s ever been charged with a crime. It’s odd, it’s out-of-place, and it’s totally ridiculous. Not only would Swallow being allowed to bring, nay, compel witnesses during the investigation tip his hand to the investigative committee, but it just doesn’t make sense
Once Swallow has been charged (or impeached) and is on trial before the Senate, subpoena power might be more appropriate. At that point, he should be able to bring witnesses he thinks would be favorable. At this point, though, during the investigation?
No. It just doesn’t make sense.
Whatever Snow is intending to do, it’s not winning Swallow friends in the legislature and seems calculated to push and shove, not persuade and entice.
Will it matter? Probably not. But I suspect that if there are legislators sitting on the fence about Swallow, this kind of letter pushes them more further towards his detractors. And if there’s anything Swallow needs right now, its friends in the legislature.
Because Rep. Ken Ivory alone is not going to cut it. It’s going to take a lot more to stop what has begun.
Letter from Rod Snow to Lockhart-Niederhauser 7-15-13 (00398470)
Related articles
- John Swallow and a timeline (hollyonthehill.com)
- Governor Calls House into Special Session to Address Subpoena Powers, Immunity Offers of Swallow Investigative Committee (publiusonline.com)
- Speaker Lockhart calls the House into session; Rep. Dean Sanpei to sponsor resolution to investigate Swallow (publiusonline.com)
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For someone to criticize one of the best attorneys in the State (Rod Snow), it would be nice to know the author’s credentials so I know whether it is worth the time to read his “authoritative” criticism.
Gary, I think you’ll note that I’m careful not to make any kind of criticism of Rod Snow himself, and in fact I acknowledge that he is well regarded throughout the state.
What I am questioning here is the legal standard he is pushing, which is wrong, and the odd requests for subpoena power while his client is only under investigation, not charged, as well as his odd comments regarding the RFP process.
Because this is the internet, and not a court room, no reference of authority is necessary: only good reasoning. If you want to respond to those arguments, I invite you to do so. Unfortunately, it appears you are engaging in the logical fallacy of an appeal to authority.
> Unfortunately, it appears you are engaging in the logical fallacy of an appeal to authority.
Not necessarily. If you have no legal training, there is good reason to doubt what you say, or at least take it with a grain of salt. And good reasoning is not enough, if it relies on axioms that neither the writer or the reader understand. For example, I find your due process argument to be a bit off, and from it suspect that you are not legally trained, are writing without much research on the subject, _or_ are oversimplifying a much more complex topic.
That aside, I think you miss the most obvious problem with Snow’s objection to the breadth of legislature’s investigation: the legislature has broad power to investigate any subject on which it can legislate. There may be some question whether Swallow may be impeached over acts that proceeded his election to office, but regardless, the legislature may find that it is prudent to change the law prospectively to address Swallow-type shenanigans in the future.
Nathan, it’s the internet, not a courtroom, or doctor’s office. My authority here is only as valid as the reasoning I provide, so if you think that my reasoning is suspect, I’ve got nothing on you. However,if you choose to take what I say more seriously because I say “I’m a lawyer and I say so,” that’s the logical fallacy of an appeal to authority. I won’t do that here.
Regarding your concerns about the oversimplification of a due process argument, it’s clear that simplification was my intent. Simplification is exactly what Rod Snow is doing in his letter, and my critique is on the same terms. Due process is shorthand for the safeguards that protect the loss of life, liberty or property by the government and is a term found in the bill of rights and extensively understood in non-legal circles (if you want to get into the arcane limits that describe due process, you’ll have to go elsewhere for that–this is not a legal blog). You don’t need to be lawyer to understand that Swallow will not lose life, liberty or property if he loses his position as Attorney General of Utah. On the contrary, the process delineated in the Utah constitution is a check against the abuse of his powers as AG, to wit, for “high crimes, malfeasance, or misdemeanors” (as noted by Snow in his letter). The only result, as has been extensively discussed, is his removal from office.
No loss of life. No loss of liberty. And no loss of property.
So, whether I am an attorney is not really material here. If you find the arguments facile or without merit, feel free to demonstrate to the contrary. But to appeal to authority, which you have done in the negative by asserting that my authority should be in question, without an giving argument to the contrary, even that includes the definitions which you seem to think are unclear to the reader, is, to be honest, without merit. Quod gratis assertitur gratis negatur.
Regarding your last paragraph: Snow may be making this argument, but he does it in such a manner as to mock the legislature, which I believe is foolish. See his in quotes comment that the legislature thinks the standard of impeachment is “they can do anything you want[,]” a standard that is either a gross oversimplification or just plan inaccurate. The legislature has established rules of the investigation and set parameters for that investigation. Is your argument that the legislature cannot look prior to Swallow’s term in office for whether he is fit?
If so, I can grant you your opinion, although it seems to beg reason. It would seem to imply that election to public office clears you of any wrong doing prior to election, especially if the public was not in possession of information that would have categorically changed their votes.
My first comment wasn’t an appeal to authority, or the lack thereof; instead, it’s an appeal to humility. Law generally, and constitutional law and due process particularly, are very complicated subjects. Moreover, the jargon of the law, the legal terms of art employed, often bear significantly different meaning than the same term in common usage. Consequently, reasoning on the basis of the everyday understanding of term can lead to wrong results, not through fault in reasoning, but because the premises, the assumptions underlying the reasoning are bad.
For example, return again to the constitutional guarantee of due process. While you’re correct to state that it protects life, liberty, and property, the legal meaning of these terms, particularly the last two, can diverge dramatically from the lay understanding. Thus, the right to such things as welfare benefits and a driving license are protected as property rights. Likewise, a person’s liberty interest includes the right to appear and be heard where “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.” If you were to simply reason from a lay understanding of “liberty” and “property”, you’d conclusions on the items above would be incorrect.
Now, I can’t see in the above post where Snow makes a demand of due process, so I can’t speak to that directly. However, insomuch as you claim that the due process protections are irrelevant to Swallow’s possible impeachment, that is far from certain. While the U.S. Supreme Court has decided that the right to hold an office is not a property right, I have found at least one state court that appears to disagree with that conclusion. And the Utah Courts, interpreting Utah’s constitution, could rightfully and legally conclude the Swallow _does_ have a property interest in his office. Moreover, it looks like Swallow would have a strong liberty interest in the impeachment proceedings because an impeachment would certainly place his good name at stake.
In sum, I believe Swallow could assert a very valid argument that due process is required in the impeachment process. (Though, that said, the impeachment process, if it observes the minimum procedural requirements, such as allowing Swallow to be heard, will give him all the process he is due.) And in turn, you are wrong on the merits—due process is not the non-issue you imply. Moreover, I think this should demonstrate the point I was originally trying to make: because the untrained can and will misunderstand the technical nature of the law, legal opinions from the untrained should be taken “with a grain of salt.”
Finally, to the second paragraph of my post. If you read it more charitably, you will find that I disagree with Snow’s position. Leaving aside the prudence of its decision, the legislature certainly has the legal authority to investigate Swallow since he became licensed as a lawyer, and certainly during the time he worked in the AG’s office and during his electoral campaign. I also agree with you that Snow’s expression of his position isn’t particularly wise. In effect, he’s poking a bear with a stick. But I think I can guess at a motive. On this point, and others, including the RFP and the Civil Right Act, Snow is attempting to spread FUD, hoping to stop or stall the investigation. Swallow is likely hoping that the investigations will come up empty-handed, and with those ended, the legislature will lose its motivation to proceed.
Nathan P., I think you make fair arguments.
Regarding whether Swallow enjoys the liberty of “good name, reputation, honor, or integrity,” I suppose I can concede that there’s case law on that point, but we’re not talking about an average citizen here. Rather it is a public official who has already had his “good name, reputation, honor, or integrity” affected by thrusting himself into the public sphere. With Swallow’s popularity with the public in the lower 20s, it’s hard to argue that he retains any interest in reputation that can be but increased by an investigation finding him to be exonerated of charges.
Would you share your finding of a state court case found a property right to hold office? I would be interested in reading that case. To date, the cases that Snow has cited appear only superficially on point but factually irrelevant. While I don’t think the case against Swallow by the legislature is as clear cut as either side would like it to be, I don’t think that it is so sophisticated that one need be a lawyer to understand it.
Rep. Ken Ivory isn’t the only legislator still in Swallow’s camp. Last I checked Rep. Jim Nelson is still supporting Swallow (for reasons I have yet to comprehend).
David, I spoke with Rep. Nielson shortly after the vote to establish an investigative committee. His reasons for voting against it were not related to his support for Swallow, but rather the drafting of some of the language in the resolution (Section 7, if my memory serves) that he felt was too expansive. Beyond that, nothing in my conversation with him, nor anything I’ve heard him say in public, has given me any indication that he has any bias or support for Swallow.
I’ve spoken to him on the topic a number of times even before the GOP legislative caucus and subsequent action. He doesn’t talk about it in terms of supporting Swallow but his explanations in those private conversations rang hollow. Either he has some private reason to support Swallow or else he is unnaturally risk-averse. I can’t decide which but either way I’m ready to get a better Rep.
Well, I can’t speak to your impression of your conversations with Rep. Nielson. I’ve known him for a long while, and my impression of him is that he’s a sincere individual.
So…I take him at his word. Watching his proposed change to the resolution indicated to me that he wasn’t trying to stop the resolution altogether, which it appeared from the Rules committee meeting on that morning that Rep. Ivory was trying to do, but merely trying to carefully craft the language to what he thought was more appropriate and less broad. As an attorney, I can sympathize with that, even if I don’t necessarily agree with his analysis of the effect of the language. For that reason, I don’t see him as a “supporter,” per se, of Swallow, the same way I see Rep. Ivory as supporting Swallow.
Fair enough. I agree that nothing he did seemed calculated to stop the resolution altogether. I guess I’m just frustrated that he thought his changes important enough to vote against the resolution despite how obvious it is that the legislature can’t just sit back and watch the whole Swallow situation erode the public’s trust in our political system while waiting for outside investigations to come to a conclusion.
Yeah, that threw me off, as well, which is why I called him. Fortunately, it wasn’t a close vote. I suspect he’ll need to explain the vote, again, though, in the future.