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Appointing versus Electing the Attorney General

March 19, 2013 by Leave a Comment

Senator wants Utah to look at appointing attorney general The Salt Lake TribuneTo avoid the influence of cash on Utah’s chief law enforcement office, Senator Todd Weiler wants the legislature to look into amending the Utah  constitution to allow for an appointed attorney general. With Utah’s long history of flawed AGs, perhaps it’s an idea we should take seriously.

 

During the Utah Legislative Session, ended last week, members of the legislature were largely taciturn on the Swallow scandal, preferring to reserve judgement until the FBI investigation into Swallow wraps and the facts are clear. Regardless, the legislature passed two pieces of legislation addressing, if indirectly, the Swallow scandal.

The first, Senate Bill 83 sponsored by Senator Todd Weiler, addressed employees of the Utah Attorney General’s office accepting outside consulting work–as Swallow has said he did for a Nevada cement project.

The second bill, pushed through on the last day of the session, though with none of the opposition that other last minutes bills have seen in the past, was Senator Peter Knudson’s Senate Bill 289. It aimed to move investigatory power from the Attorney General to the Lieutenant Governor when elections complaints were filed against the AG. While prompted by the Alliance for a Better Utah complaint about Swallow to the Lieutenant Governor’s office, both legislators and staffers went to lengths to point out that the bill was to remove a weakness in the law, not target Swallow.ada cement project after appointment by then Attorney General Mark Shurtleff.

Appointment by Supreme Court or Governor is a good idea

money-and-justice-scalesEven with these two changes in the law–one putting the same restrictions on political appointees as exist on state employees and the other preventing the AG from investigating himself–Weiler believes further changes may be necessary to avoid a repeat of the same problems.

“The discussion is: As an elected official in a statewide race, we’re asking these candidates to run around and ask people for political donations,” Weiler said to the Salt Lake Tribune. “If someone was appointed, we’d take that entirely out of the process. We wouldn’t have the chief law enforcement officer asking people for money.”

In an 2011 proposal for the same, State Senator Steve Urquhart  said that it could get better attorneys into the AG’s office:

“[...] maybe we would get a better-qualified attorney than we tend to get and we might get an attorney with an approach that is consistently on the merits of the issues rather than on the basis of politics or something else.”

Currently, only seven states have appointed attorney generals. The Salt Lake Tribune lists those states as Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee and Wyoming, citing the National Association of Attorney Generals.

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In Tennessee, the state Supreme Court appoints the attorney general, which I find particularly interesting, especially given how Utah’s justices join the bench. Unlike many states, Utah’s Supreme Court justices are not elected but serve ten-year renewable terms after appointment by the governor and confirmation by the state senate. As result, Utah’s Supreme Court has avoided much of the politicization that plagues other states. Not beholden to campaign donations, Utah tends to have justices who are better known for the legal acumen than their political connections.

This kind of process can prove useful for an AG appointment in two ways:

  1. Appointment by the Governor: similar to selection for the Utah Supreme Court, selection of the AG would be based on merit and subject to an “advise and consent” process by the state senate. The process could be further depoliticized by including a vetting process by the Utah Bar Association.
  2. Appointment by the Supreme Court: already less beholden by virtue of their appointment and independence as a separate branch of government, an appointment by the Supreme Court would carry additional levels of review and detachment from the political process, allowing selection of a person without need of review of political bona fides.

There’s no way that politics will be completely removed from the process, but an appointment–either by the governor with consent of the senate or by the Supreme Court–would remove the politics from the Utah Attorney General’s office.

 Swallow opposes, makes “Bandwagon” argument

SwallowNot surprisingly, Swallow, with nothing to fall back upon if he loses his job, does not support the idea. To the Salt Lake Tribune

“The attorney general is the guardian of the public interest and should be independent and provide legal advice based on the law instead of political pressure,” Swallow said. “Utah is one of 43 states where the attorney general is elected by popular vote and this process ensures the attorney general is the lawyer for all Utah citizens.”

 

In case you missed that, Swallow implied that there’s less political pressure on someone who needs to raise hundreds of thousands of dollars to get elected (as he did) than there is on someone who is appointed. (Swallow also wins Logical Fallacy of the Day with his “Bandwagon” appeal to popularity as a validation of his position).

Not the first time…

220px-Mark_ShurtleffAs I noted earlier, this isn’t the first time that someone has suggested we look at moving to appointment of the AG. Given Shurtleff’s history.  Urquhart proposed looking into the idea in 2011.

“I also think it’s much cleaner if the guy making prosecutorial decisions isn’t out soliciting money from people who could be impacted by those decisions,” Urquhart said in a Salt Lake Tribune article at the time.

Then Attorney General Mark Shurtleff opposed the idea, touting the independence that comes with election. Of course, he had his own problems. During his term, Shurtleff was regularly pilloried by the City Weekly for receiving contributions from questionable donors, including the same ones who helped get Swallow elected and some of which are now under federal investigation.

Paul Rolly has also in his column told a short history of Utah’s attorney generals, and few escape some kind of scandal. With Utah’s history, perhaps it is time we change how we think about the office of the attorney general. It’s cliche to talk about lawyers,politicians, sharks, snakes and leeches in the same breath, but do we need to add to the taint of corruption and make the cliche real?

In 1998, the Utah Supreme Court was moved into...

In 1998, the Utah Supreme Court was moved into the Scott M. Matheson Courthouse building. (Photo credit: Wikipedia)

I like Weiler’s request, echoing Urquhart’s suggestion in years past, that the legislature look into changing the Utah constitution to provide for a more independent attorney general uncorrupted by the taint of political contributions. Utahns should be able to look to their attorney general as their advocate, regardless of whether they have been able to donate to his campaign.

Swallow has been accused by three businessmen of soliciting donations in return for protection. Regardless of the truth of the accusations, changing the nature of the selection of the attorney general would remove the possibility that prosecutorial decisions are tainted by money.

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Where there’s smoke: a brief history of John Swallow in headlines

January 17, 2013 by 10 Comments

John Swallow has a habit of making newspaper headlines, but for all the wrong reasons. If it’s true that where there is smoke there’s usually fire, then the headlines that have followed Swallow’s career indicate a lot of fire. Only time will tell how much or if it will catch up to Swallow this time around.

With calls for his resignation already circulating—the Daily Herald in Utah County called for Swallow to step down on Sunday and the Salt Lake Tribune and the St. George Spectrum followed—maybe it’s time to talk a walk down memory lane and recall that this isn’t his first time running afoul of the appearance of ethical behavior.

“SWALLOW DENIES ETHICS BREACHES”

Elected to serve in the state legislature for the first time in 1995, Swallow served three terms in the state legislature before stepping down in 2002 to run for Congress. Over the next two election cycles, Swallow challenged Jim Matheson to represent Utah’s Second Congressional District, falling short each time. It was during this time that Swallow was hit by accusations of questionable ethics.

With the election fast approaching and the Swallow campaign hoping to look good for national Republicans, Swallow found his campaign short on cash.

“That wouldn’t look good,” said Dave Hansen, former campaign manager for Orrin Hatch, was at the time working as Swallow’s campaign manager. “So John said he could loan the campaign $90,000, which would look good on the report’s cash-on-hand, and when the October campaign contributions started coming in, the campaign would repay that. And that’s exactly what we did. That money was never meant for the campaign and actually wasn’t spent on the campaign. To be honest, it was just to make the report look good.”

It’s not atypical for candidates to do this kind of thing, but the question that was left outstanding was: Where did Swallow get the money? While Rob Bishop borrowed money from a credit union during the same cycle to keep the campaign moving, Swallow allegedly sold artwork that he never reported owning in previous financial reports.

“It was all within my immediate family,” said Swallow. “And all legal and above board.”

With the source questionable, and the amount much higher than what Swallow had reported as his own personal assets just six months before, the headline in the Deseret News was glaring: SWALLOW DENIES ETHICS BREACHES. Swallow was later cleared of breaking the law when he admitted selling some paintings, cashing out checking and savings accounts, including an individual retirement account, to make the loans to his campaign.

With just a little bit of political sleight of hand, Swallow leveraged his assets to hide the state of his campaign until after the election.

Tricky, but, at least according to the FEC, legal.

 

SWALLOW EXAGGERATED HIS ROLE IN THE OBAMACARE LAWSUIT

During the run up to the Republican primary in 2012, Swallow painted himself at the forefront of the Obama Care lawsuit…or at least, his mailers did. In reality, the most Swallow did for the case was listen in on a few conference calls and attend oral arguments in a seat that he probably paid someone to stand in line for. Then, he took a taxpayer funded trip to DC to watch other lawyers argue the case and called home to his state to campaign on their coattails.

[…]Swallow was there…along with four hundred others, including attorneys from twenty-six states who were also on the lawsuit and observing the oral arguments that day.  Other than that, I could not find anything to indicate a more active role in the case. Other lawyers argued, other lawyers filed the briefs, and other lawyers responded to the judges questions.

Other than that, the most prominent mention that Swallow received was for a campaign call he made to 55,000 Utahns during his taxpayer funded trip to D.C. And Swallow did not appear happy about that mention.

“I have a right when I’m not working to do whatever I want to do,” Swallow said. “I have a right to campaign. I have a right to decide if I want to make something an official call or something to promote my candidacy.”  Truly the words of someone intensely focused on fighting Obamacare.

 

“MAILER ALLEGES UTAH AG CANDIDATE WAS INVESTIGATED BY FEDS”

Meanwhile, news surfaced that Swallow had been interviewed by the FBI in connection with a bid scandal helped start in Salt Lake County.  According to the article:

The flier, coming two weeks before Swallow’s June 26 GOP primary against attorney Sean Reyes, raises the issue of a contract dispute involving Salt Lake County and California-based Worldwide Environmental Products, which sought to provide emissions-testing equipment to garages in the county.

Awarding the three-year, $12 million contract turned into a bitter fight. Worldwide alleged the bid was rigged, and the attorney general’s office and, eventually, the FBI and U.S. attorney’s office became involved, according to interviews and records obtained by The Salt Lake Tribune.

[…]

The target of the investigation is unclear. The FBI and U.S. attorney’s office would not comment.

Swallow denied that he was under investigation with a veritable tornado of robodials, mailers, and emails. But he was one of only three people interviewed or subpoenaed by the FBI in the matter. No one in Salt Lake County was interviewed in the investigation, which I find a little odd, since it was Salt Lake County’s bid process that was supposedly under investigation.

At the time I noted that “if the FBI had investigated Swallow for corruption, it would be a game changer. Who wants an Attorney General who is corrupt?”

To top it off, then Attorney General Mark Shurtleff went to bat for Swallow, accusing Swallow’s Republican opponent of illegally issuing the mailer. The next day, Shurtleff walked the accusation back when he realized that his accusation were likely defamatory and false.

But it was too late, the robodial had gone out, smearing Swallow’s opponent with outlandish exaggerations that didn’t stand on fact or law.

Meanwhile, I could not find anyone who actually saw the mailer. I was left to wonder if it had actually been issued to more than a few households, as well as who the real source of the mailer had been. It provided an excuse to attack Swallow’s opponent, but wasn’t really seen by many voters.

 

“AG Candidate Talks Of Taking Over Consumer Protection”

Then the City Weekly found evidence that Swallow was promising a quid pro quo for campaign donations.  In light of the allegations coming to light in recent weeks and a federal suit against many of Swallow’s donors filed this week, the City Weekly discovery is even more revealing, even if it didn’t stick to Swallow at the time. It sounded like a promise of quid pro quo.  You support my campaign, and I’ll protect you from enforcement.

[A]ccording to a tape-recorded conversation he had with the owner of a telemarketing sales floor, [John Swallow] has another plan he’s been less vocal about—taking the agency that investigates consumer protection complaints away from the jurisdiction of the Governor’s Office and putting it under the control of the Attorney General’s Office.

“Now, this is kind of confidential, but when I’m the attorney general, I will try to restructure it so Consumer Protection is under the AG [office] and the attorney general has more authority over those investigations. In fact—complete authority over that,” Swallow is heard telling telemarketing-business owner Aaron Christner in an April 7 phone conversation.

Keep in mind that Swallow was making this statement to a member of an industry that has collectively donated $82,284 to his campaign. At least, that’s as much as was apparent then.

 

“Indicted businessman: Utah A.G. tied to alleged scheme”

And then there was this one, just last week.  With the family bible still warm where he placed his hand to be sworn in as attorney general of Utah, Swallow was in headlines again, this time for allegations that he participated in a scheme to help a Utah businessman avoid investigation by the feds by bribing Senator Harry Reid.

Embattled St. George businessman Jeremy Johnson says new Utah Attorney General John Swallow helped broker a deal in 2010 in which Johnson believed he was to pay Senate Majority Leader Harry Reid $600,000 to make a federal investigation into Johnson’s company go away.

But when the federal government filed a lawsuit Johnson thought he had paid to quash, he demanded Swallow return some of the $250,000 initial payment. Then, just days before the Nov. 6 election, Johnson engaged in a frenetic but unsuccessful effort to get Swallow to drop out of the race, saying information about what Johnson called a “bribe” would come out and force the Republican’s resignation if he became attorney general.

The Salt Lake Tribune has an excellent article that provides a timeline of the scandal. As I mentioned earlier, the Daily Herald has called for Swallow’s resignation.

The allegations against Swallow have sufficient legs, even now before every detail has been uncovered, to justify his immediate resignation. His reputation is now seriously tainted, and that is an impossible thing to overcome for an attorney general.

Emails and secret recordings put Swallow in the thick of a possible bribery conspiracy. While Swallow denies doing anything technically illegal (which may or may not be true), it is clear that there is a substantial appearance of wrongdoing. That appearance alone is sufficient to cause any gentleman or statesman, let alone a state’s chief law enforcement officer, to step down for the good of the people.

From long, sad experience, we know that initial reports of this nature virtually always reveal the tip of an iceberg. Public officials caught in shady dealings always deny and deny and deny. And then with each successive public revelation they tend to get squeezed out of office.

Please spare us the pain, Mr. Swallow, and get out now. You can’t be trusted.

I tend to agree, though this is no surprise to people who have read this blog before. I do not trust John Swallow, and he has a history of walking the fine line, if not over that line, between what is ethical and what is not.

Is there more to come out? Almost certainly so. Where there is smoke, there is usually fire, and Swallow’s career—more focused on raising money by promising protection than on actually practicing law—has been shrouded by a lot of smoke. Who knows who else will be hit as the plot thickens around the Attorney General.

Until the smoke clears, though, it’ll be hard to see how bad the fire is and how much damage it has done to Utah and the reputation of the Attorney General’s office.

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Where there’s smoke, or an FBI investigation…

June 15, 2012 by 7 Comments

Yesterday, Democrat’s allegations that John Swallow was investigated by the FBI for corruption hit the Salt Lake Tribune, and almost immediately, I was hit by a storm of emails and a robodial telling me the allegations were false. Not one of them featured a single word from the candidate himself.

I know John Swallow has his career and his election on the line, but really: his campaign should first verify the allegations they’re making before spreading them so far and wide.

Here’s what happened:

A political ad that will hit Republican voters’ mailboxes this week makes a dramatic allegation — that GOP attorney general candidate John Swallow was the target of a federal investigation for intervening in a Salt Lake County bid process.

At first glance, I’m peeved that a Democrat is attacking Swallow. We’re in a Republican Primary, after all. As I read on, though, I’m more than a little surprised that something so serious would be alleged, even by Democrats. Attacking an Assistant AG  for being under investigation by the FBI, even one with as little experience as John Swallow, is over the top unless there is evidence to back it up.

The flier, coming two weeks before Swallow’s June 26 GOP primary against attorney Sean Reyes, raises the issue of a contract dispute involving Salt Lake County and California-based Worldwide Environmental Products, which sought to provide emissions-testing equipment to garages in the county.

Awarding the three-year, $12 million contract turned into a bitter fight. Worldwide alleged the bid was rigged, and the attorney general’s office and, eventually, the FBI and U.S. attorney’s office became involved, according to interviews and records obtained by The Salt Lake Tribune.

A grand jury was convened to hear testimony relating to the contract. Swallow, Assistant Attorney General Alan Bachman and Bachman’s paralegal were subpoenaed to testify. But the case was apparently scrapped at the last minute; the grand jury did not convene.

The target of the investigation is unclear. The FBI and U.S. attorney’s office would not comment.

The article goes on. After Worldwide’s lobbyist pressed for an inquiry, the AG’s office contacted Salt Lake County.  The story indicates that Bachmann and Swallow then called the Salt Lake County attorneys with responsibility for the bidding process and mentioned an investigation into the bid process if Worldwide was not given another opportunity. Both Salt Lake County attorneys claim they were threatened.

Bachman told The Tribune that there was a misunderstanding and that he made no such threat, pointing to an email after his call in which he stressed that the state may investigate, not that it would.

At this point, the Salt Lake District Attorney, Sim Gill, said enough is enough. If the bid process is bad, let’s have a real investigation, and he called the FBI.

“If there’s corruption, we want to find it. We want an objective, transparent look at this,” Gill said. “If you call here and make such accusations, then you know what? Be prepared. We’ll pick up the phone [to the FBI] and say, ‘Investigate us, investigate them, investigate everyone else, whoever is involved in this process.’ ”

At the end of the day, the only people interviewed or subpoenaed by the FBI were John Swallow (who did not comment in the story), Alan Bachman, and Bachman’s paralegal. No one in Salt Lake County was interviewed in the investigation into the bid process, which I find a little odd, since that’s the process that was supposedly, according to Bachman, in need of review.

Naturally, if the FBI had investigated Swallow for corruption, it would be a game changer. Who wants an Attorney General who is corrupt?

I get back to work, but it wasn’t the last I would hear about the story yesterday. I received, a third email at 1 PM, this time through the Utah Republican State Party and identical to the second in content, differing only in the Utah Republican Party headers and disclaimers on the bottom. At this point, it’s starting to feel like a lot of email, almost overkill.

Then, at 8:53 PM, I receive a 45 second call from 801-386-9074, the John Swallow campaign phone number. It’s a robodial of a recording of Attorney General Mark Shurtleff. He starts by saying that he took an oath when he became attorney general. I can’t recall whether he said the oath was to be honest or to uphold the law, but both are similar and amount to the same thing. Then, speaking with some animation, he says that Sean Reyes and Democrats are telling lies so they can push their liberal agenda on Utah. This is a shock to me, since it’s very clear that the mailer is not coming from Sean Reyes, but from Democrat Dimitri Moumoulidis‘s Super PAC Ute PAC.

For all the emails and robodials, I still haven’t seen the mailer itself. I’m not sure I would have noticed the story, or at least not seen it so early, but for the attention the Swallow campaign has brought to it.

_________________________

English: Photograph of Mark Shurtleff

English: Photograph of Mark Shurtleff (Photo credit: Wikipedia)

Conclusions? First, I find it a little unsettling that the chief law enforcement officer of the state is using phrases like “illegal” so blithely and easily.  Utah law, which the Attorney General correctly cites in all three emails, requires a number of things, not the least is that the person publishing the mailer must know that their statement is false.

A person may not knowingly make or publish, or cause to be made or published, any false statement in relation to any candidate, proposed constitutional amendment, or other measure, that is intended or tends to affect any voting at any primary, convention, or election.

I have yet to see anything that connects Sean Reyes to the Democratic Super PAC, and so it appears that Shurtleff is accusing Reyes of lying without evidence. It is highly inappropriate, especially for an officer of the court like the Attorney General.  While I know that passions during campaign season can get intense, I think the Attorney General, considering the amount of power he holds to investigate and prosecute the law, should be careful about slinging around legal terms that accuse people of crimes.

Further, if there is any truth to the mailer (and again, I have not seen it), a public vetting of John Swallow’s actions is appropriate. In a heavily conservative state like Utah, this is the election for Utah’s attorney general. It is unlikely that in a year like this one, with Mitt Romney on the ballot, a Democratic challenger is going to have a chance , short of a scandal and then it’ll need to be dramatic.

  • Did the John Swallow use his office to pressure Salt Lake County on behalf of Worldwide?
  • Was he investigated by the FBI?
  • Why wasn’t anyone but Swallow, Bachman, and Bachman’s paralegal interviewed?
  • If it’s nothing, why not tell us what was asked?
  • What did the FBI want to know badly enough to subpoena and interview just members of the Attorney General’s office?

Last observation: why haven’t we heard Swallow comment or deny the allegations? He is the only person, outside of the FBI, that has first hand knowledge of why he was interviewed by the FBI. Looking at Robert Gehrke’s article, the emails, and the phone call, though, I can’t find any statements from John Swallow. Even his campaign consultant Jason Powers, whose modus operandi is to stay behind the scenes, is quoted.

Why nothing from Swallow himself?

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City Weekly asks: Is John Swallow offering access to the Attorney General in return for donations?

June 1, 2012 by 8 Comments

In what is, I am sure, an awkward moment for the Swallow campaign (see my thoughts yesterday on exaggerations in their statements here), John Swallow has been caught on tape offering to arrange a meeting with the Attorney General for a potential donor to the Swallow campaign. City Weekly gets the hat tip for this one:

[A]ccording to a tape-recorded conversation he had with the owner of a telemarketing sales floor, [John Swallow] has another plan he’s been less vocal about—taking the agency that investigates consumer protection complaints away from the jurisdiction of the Governor’s Office and putting it under the control of the Attorney General’s Office.

“Now, this is kind of confidential, but when I’m the attorney general, I will try to restructure it so Consumer Protection is under the AG [office] and the attorney general has more authority over those investigations. In fact—complete authority over that,” Swallow is heard telling telemarketing-business owner Aaron Christner in an April 7 phone conversation.

This is all the more disturbing because Swallow is making this statement to a member of an industry–companies involved in online-business opportunities and Internet marketing–that has collectively donated $82,284 to his campaign.

Listen to an excerpt of the call here.

It gets worse. Swallow, during a call to raise campaign funds, promises to set up a meeting with current Attorney General Mark Shurtleff to resolve the concerns of the potential donor, Aaron Christner, who runs a telemarketing business.

In the taped conversation provided to City Weekly, Christner introduces himself to Swallow by inquiring about a Swallow fundraiser breakfast meeting the coming week and telling him about his company’s legal troubles with Consumer Protection. Not only does Swallow tell Christner that, if elected, he would try to take over consumer investigations from the agency, but that he can also arrange a private meeting with Christner, himself and Shurtleff to possibly help resolve Christner’s legal issues by influencing the assistant attorneys general assigned to prosecute cases on behalf of Consumer Protection .

“If [Shurtleff] understands, then [we’ll] see if we can do something to help out that makes sense,” Swallow tells Christner on the recording, adding, “I know there are always two sides, even to a very thin pancake.”

Thin pancake indeed.  I didn’t realize that one had to pay to have one’s legal issues with the state reviewed more favorably by the attorney general’s office

Issues I have with this conversation, then?

  • Why is a restructuring of the AG’s office “confidential” but worth mentioning to a member of the affected industry and potential donor during a fundraising call, but not to the public?
  • Why is candidate Swallow an offering access to the Attorney General during a fundraising call? If Assistant Attorney General Swallow is going to set up a meeting, it shouldn’t be in a quid pro quo situation.
  • Why is Swallow passing judgment on the investigation during a fundraising call? Around 1.43 on the call, Swallow says that the AG’s office tries to work things out for people “who are trying to do things right and make mistakes” by accident. How does Swallow know that? And why is he commenting on it during a fundraising call?
  • If there is an investigation, why is Swallow communicating directly with the investigated party, and not with the investigated party’s attorney?
  • Is there a quid pro quo being offered here? You donate to the campaign, and I’ll arrange a meeting with the AG to work out your issue?

How about the person recording the call, this Christner. What is his motive for doing so?

Since 2008, Christner has been involved in several entities that work at selling online business opportunity and coaching services. In March 2, 2011, Christner and his business partner, Ryan Jensen, were fined $400,000 in an administrative hearing by the Utah Division of Consumer Protection for telemarketing for three months while their company was not properly bonded or licensed.

Jensen and Christner approached City Weekly earlier this year out of concern that the state’s regulation of the telemarketing industry is unfair and inconsistent. They also objected to the recommendations made to them by owners of other companies in the industry to ingratiate themselves with state politicians through campaign donations.

Christner documented the call he made to Swallow on April 7, 2012, after hearing about a fundraiser breakfast to be held the following week at a Mimi’s Café in Salt Lake County. The fundraiser was not publicized on Swallow’s campaign website and, according to Jensen—who attended the event but did not make a contribution—included a number of players in Utah’s call-center and Internet-business opportunity industry.

Christner says he never had the meeting with Shurtleff and Swallow mentioned in the phone conversation. On April 27, his case was appealed in Salt Lake City’s 3rd District Court and the fine against his company was reduced to a $2,320 judgment.

Former district Judge Paul Cassell notes to City Weekly that it isn’t uncommon for the attorneys at the AG’s office to communicate with defendants.

However, I don’t know how often the attorneys are also candidates for AG and are making comments like this:

“Utah is so dysfunctional right now,” Swallow says. “Again, the client—the client is the Department of Commerce and Consumer Protection and that is not someone we can control or even influence greatly. It’s because they work for the Governor’s Office.” It’s then Swallow tells Christner that he plans to put Consumer Protection under the Attorney General’s Office when he’s elected.

But “I’m not attorney general yet,” Swallow says.

At which point he will A) have “control” and be able to “influence greatly”, and B) be able to decide whether investigations on donors like Christner should move forward.

Is this the kind of thing we want happening in the Attorney General’s office?

Please read the whole article over at City Weekly and decide for yourself.

[City Weekly]

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Exaggerated Claims: Swallow at Supreme Court to “ensure” unconstitutionality of Obamacare?

May 30, 2012 by 7 Comments

If you’re on the Swallow for AG campaign email list (and I suspect that I will shortly be purged from that list), you just got an email making some exaggerated claims about John Swallow‘s role in the Supreme Court’s review of the Affordable Care Act.

In short, the email walks through a loose timeline for the Affordable Care Act (also known as “Obamacare” more colloquially), putting Swallow at each crossroad of the legal battle. But for him, and Utah, Obamacare might not have made it before the Supreme Court.

Except that isn’t quite how it happened. We’ve already learned that Idaho had passed a law that gave standing to challenge Obamacare, and that Utah jumped on board. Sincerely, of course, but not necessarily crucial to the fight against the Affordable Care Act. It was important politically, but not really legally.

Now, Swallow’s campaign is claiming that he was at the Supreme Court to “ensure” the law was found unconstitutional. It’s a claim that stretches the truth.

Here’s a picture of the claim from Swallow’s campaign:

There is some question about the accuracy of the campaign's claim.

Swallow was in the observation section–the chamber–of the Court during the arguments, but he wasn’t really there “representing” Utah to the Supreme Court and he didn’t have any role to “ensure” that Obamacare be overturned during that trip. In fact, there wasn’t a ton for him to do to “ensure” that Obamacare was ruled unconstitutional. Mostly, his role involved “sitting” and “observing.” Also, later that week, while still there on taxpayer dollars, it involved “campaigning.”

I wanted to be sure, though, that in all of the news I had listened to, read, and watched that week during the historic oral arguments (see posts on it here and here), that I hadn’t missed something.  Maybe Swallow really was doing something to “ensure” it was overturned during that March 26, 2012 date the campaign cites?

No, not really.

The closest article I could find was on March 27, 2012 in the Salt Lake Tribune that indicated Swallow was there…along with four hundred others, including attorneys from twenty-six states who were also on the lawsuit and observing the oral arguments that day.  Other than that, I could not find anything to indicate a more active role in the case. Other lawyers argued, other lawyers filed the briefs, and other lawyers responded to the judges questions.

Other than that, the most prominent mention that Swallow received was for a campaign call he made to 55,000 Utahns during his taxpayer funded trip to D.C. And Swallow did not appear happy about that mention.

“I have a right when I’m not working to do whatever I want to do,” Swallow said. “I have a right to campaign. I have a right to decide if I want to make something an official call or something to promote my candidacy.”  Truly the words of someone intensely focused on fighting Obamacare.

So: was Swallow in D.C. to “ensure” the Affordable Care Act was ruled unconstitutional? Or was he there to promote his candidacy?  Because while I am sure that it was thrilling to be there for the arguments, I’m not convinced that his presence was necessary in the chamber to “represent Utah” or strike fear into Justice Kennedy‘s wavering heart and “ensure” anything other than a call to voters to say “hey! Look! I’m in D.C at the same time as Obamacare is being argued, so, you know–vote for me because there must be an association between being here and my role in the case.”

That’s my theory. It’s a campaign gimmick. If only he hadn’t made that call to exploit his taxpayer-funded trip to D.C.

Other attorneys in the Attorney General’s office, and who were closely connected to the lawsuit against Obamacare, have called Swallow’s role in the case into question, too:

[...]Utah’s former solicitor general, Annina Mitchell, who was the designated point person for the state [on the Obamacare challenge] up until her retirement last year, said Swallow’s claim is exaggerated.

“That’s so disappointing. It’s not true,” Mitchell told The Tribune Friday. “I’m disappointed, as someone who worked with him, that John feels it necessary to mislead Utahns about his role.”

Mitchell, who served at the Attorney General’s office for twenty years (which also means she has more than twice as many years actually practicing law as John Swallow,  where ”practicing” means more than just having a law degree), was solicitor general for the state for nine years. No small fry in the legal community. When she speaks, other lawyers pay attention. With her litigation experience, she was assigned to the case for her litigation background, not her political connection.  She knew who was lifting the load.

“I don’t remember John Swallow ever making a substantive comment in those conference calls,” Mitchell said. “We read and evaluated the materials, but we’re not talking about a huge investment of time or litigation skill.”

Back to the beginning: Swallows campaign has exaggerated his role in the fight against the Affordable Care Act. And if they’re willing to exaggerate that, what else are they willing to exaggerate about Swallow?

(I’m not even clear that John Swallow always understood the legal path the case would need to take to get to the US Supreme Court. At one point in 2011, he tweeted that the Florida Supreme Court was about to rule on the case, instead of the District Court of Florida. [blackbirdpie url="https://twitter.com/JohneSwallow/status/32122629380898816"] Any first year law student could tell you that a challenge to a federal law like Obamacare would need to come through federal court, not state court. Further, anyone who was as closely connected to the case–let alone leading it, would know which court was about to rule on it. It may be a minor mix up, but for a lawyer who is claiming leadership on the case, it’s an embarrassing faux pas that could have been resolved even by just looking at the newspaper that day).

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Tweets aside, should Utah’s attorney general be appointed?

April 20, 2011 by 2 Comments

Mark Shurtleff, Utah Attorney General, is the first in Utah history to be elected to three terms.

Should the attorney general be appointed by the chief executive of the state? Or should states continue to elect their lead legal adviser and prosecutor?

Utah, along with forty-three other states, elects the state’s attorney general in a general election along side other statewide offices, such as governor, lieutenant governor, and so on. The attorney general’s job, according to the office’s site, is to “enforce the law, provide counsel to state agencies and public officials, to work with law enforcement and protect the interests of Utah, its people, environment and resources.”

Mark Shurtleff, Utah Attorney General

Utah’s current attorney general is Mark Shurtleff, first elected in 2000 and later reelected in 2004 and 2008, the first AG in Utah history to receive three terms. Each time, he has been reelected by large margins, walking away with about 69% of the vote in 2008.

Despite this level of popularity, though, Shurtleff has not won everyone’s friendship. Further, his willingness to take campaign contributions from groups that were in the midst of prosecution has raised questions about his objectivity.

One example of this was reported in the Salt Lake City Weekly story “Called Into Question.”  A call center that pushed questionable real estate products, Mentoring for America (or MOA) was investigated and cited between 2004 and 2007 for because it “promised unrealistic guarantees to customers, sold them programs they couldn’t use and otherwise conducted deceptive trade practices.” In 2008, it was under investigation, again.

Around the same time, Shurtleff received $20,000 in donations to his campaign. According to City Weekly:

 …on Jan. 16, 2008, almost a month after it received its most recent charges from the state, MOA contributed $20,000 to Attorney General Mark Shurtleff’s 2008 re-election campaign. Three months after the charges were dropped by the Utah Division of Consumer Protection, Shurtleff would bank another $10,000 from the company, according to MOA’s PAC report.

In total, the Shurtleff campaign received $187,000 in donations from seven Utah call centers in 2008, six of which were under investigation by the Division of Consumer Protection. The litany of complaints against MOA, and the slap on the hand that it received, is heartbreaking.

When asked about the conflict of interest created by receiving donations from people and companies that are under investigation, Shurtleff was frank and honest: it’s complicated and it’s burdensome.

He said starting to draw lines among legal donors might create a need to do background checks on all donors. “I couldn’t take money from individuals without a background check,” he said.

Shurtleff also said that he’s never had a problem prosecuting donors.

“I have prosecuted and sued companies that have given me money,” he said. “Despite all the innuendo and rumors … there has never been and never will be a documented case of pay-to-play, tit-for-tat” favors for contributions.

The Idea: Appoint the Attorney General 

Regardless of Shurtleff’s intent, it has raised the question about whether the office should stay elective or whether it should be made appointive.  Utah State Senator Steve Urquhart of St. George recently floated the idea that–to allow the attorney general to avoid the appearance of impropriety due to campaign donations–the position should be appointed by the governor, similar to how the President appoints the U.S. Attorney General.

Not only would the state attorney general be free from the need to collect campaign donations, but would also work in closer cooperation with the Governor in setting priorities.

The feds do it and it seems to make sense,” Urquhart said in an article in the Salt Lake Tribune.

“I also think it’s much cleaner if the guy making prosecutorial decisions isn’t out soliciting money from people who could be impacted by those decisions,” Urquhart said.

The flaw in the idea, as Shurtleff quickly pointed out, is that the attorney general needs to be a check on the executive branch, as well. By limiting the attorney general’s independence–making it responsive to the governor and the legislature instead of voters–changes the nature of the prosecutor’s office to little more than corporate counsel to the Governor.

“If there’s any misdeed or malfeasance in the executive branch then I’m responsible to the people to take action,” Shurtleff said.

Public Policy? Or a Grudge?

If this were just a policy discussion, then Sen. Urquhart would have had the legislative office attorneys look at it, he’d propose a constitutional amendment (which is what the change would require), and the state legislature would have voted on it next year.

But it’s not just a policy discussion. Apparently Steve and Mark don’t get along very well. The attorney general went ad hominem  and attributed Sen. Urquhart’s suggestion to personal ambition, not public policy.

“We know he has an interest in this job,” Shurtleff said, adding Urquhart’s only hope would be through an appointment. “I think he can’t get elected statewide.”

Never one to miss an opportunity, Sen. Urquhart had some fun with Shurtleff’s snark.

http://twitter.com/SenatorSteveU/statuses/58282279742603265

When @hollyonthehill called his bluff, asking for a picture, Urquhart folded, making a jab at Shurtleff’s accidental tweet of 2009 announcing his intention to run for the US Senate.

http://twitter.com/SenatorSteveU/status/58284190269059072

http://twitter.com/SenatorSteveU/statuses/58283191152283648

___________

Jabs and accidental tweets aside, the question remains: should the attorney general be an independent elected official or should he, as in the federal system, be appointed?

Elected or Appointed, the Attorney General Should Be Impartial

Both options have merits that merit consideration and with the race to replace Mark Shurtleff kicking off this year, voters should closely examine the candidates for their willingness to maintain not only independence, but impartiality. Candidates for attorney general should be asked who their donors are and how they will be independent from influence by those donors.

While Shurtleff is correct to note that statewide races are expensive, it is also notable that he has won each race, including his first election, by margins more than 20 percent higher than his Democratic opponents. It’s hard to justify taking money from questionable donors when clearly there is not a need for it.

Further, the chief prosecutor should be above suspicion. Taking so much money from questionable donors should result in concerns by voters about the ability of the attorney general to exercise prosecutorial discretion in voters’ interests, not his own. Whether Shurtleff acts with impartiality or not becomes a moot point when so much money is accepted from so many parties that should be receiving the full inspection of the state’s chief prosecutor.

For more in the press on this issue, see also:

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Governor Herbert “isn’t an attorney.”

July 22, 2010 by 1 Comment

Just in case you were wondering, Utah Attorney General wants to make it clear: Mark Shurtleff is in charge of the investigation into “the List,” now and Governor Herbert is not, let me repeat, not an attorney. (and by “The List,” I am referring to this)

All cleared up?

“The governor is not an attorney, he’s not a prosecutor.”

and

“It was administrative fact-finding, what they’ve done. It really wasn’t an investigation. That begins today.”

Mark Shurtleff is large and in-charge, folks.  Step aside and let the professionals work.

Joking aside, find the full story on ABC4 here (“Utah’s attorney general makes clear he’s now in charge of “List” investigation”).

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