February 25, 2018

There is zero chance that John Swallow will resign, unless…

SwallowLast week, it hit the fan for John Swallow.

And it hit over and over and over again.

It started back in January as shaky bribery accusations from an indicted businessman. Swallow, on the other hand, appeared to be an upstanding, conservative and newly elected attorney general.  In just the last couple weeks, though, it has climbed, or rather sank, to a whole new level last week as one news story after another hit.

Calls for his resignation, including from legislators, have increased. And  one legislator, at least publicly, wants to see impeachment proceedings begin.

It left us all wondering: “Who are you, anyway? Did we ever really know you, John?”

Swallow ran as a conservative, and while his campaign issues seemed more appropriate for a Congress than law enforcement, this is politics, and federal issues are more recognizable to voters (as Adam Brown reminded us yesterday). So be it. Swallow’s bona fides, on the surface at least, seemed in order: he had served in the legislature, ran twice for Congress, and was appointed Deputy Attorney General under then-Attorney General Mark Shurtleff. And, because it’s the only elected office in the state where professional licensure is required, he was an attorney in good standing with the Utah bar.

2015232357_Who20Are20You_xlargeIn other words, he had fought the good fight for conservatives and had the requisite credentials, too.

Sure, there were times when he seemed to be fluffing his resume (like the time he exaggerated his role in the Obamacare litigation) and other times when he would gloss over it (such as his career as a lobbyist for the check cashing industry). But he’s a conservative, people!

But this is politics! He’s still a good conservative! It’s a vast liberal media conspiracy to get rid of the attorney general. And, besides, do we really want to set a precedent of impeachment?

It’s pretty serious stuff. After all, the Department of Justice, the FBI, the Davis and Salt Lake District Attorneys, the Utah Bar Association, and the Lieutenant Governor’s office are all conducting investigations into the accusations against Swallow. The FBI may have been investigating him as far back as last summer. And yet, none of them seem very interested in making any public accusations of their own. It’s almost like they are all waiting to see who will go first to bring charges or pass judgment.  I don’t blame them. Accusing a sitting attorney general of breaking the law is no enviable task.

Then there is the state legislature. Speaker Becky Lockhart has sent two emails to the members of the Utah House on the topic of impeachment (Utah Political Capitol has a copy of each). On Friday of last week, Rep. Spencer Cox set off a firestorm by not only calling for impeachment publicly, but laying out his reasons in well-reasoned prose (really, you should click on that link…I’ll wait while you go there). Meanwhile, Senate President Wayne Niederhauser has instructed his members to watch their words since if the Utah House submits articles of impeachment against Swallow, the Senate will sit as jury.

But should they? Should Swallow be impeached just six months after he took office?


 

Impeachment?

If I was a legislator, I would be very hesitant to go to impeachment too fast. After, several investigations are still in process, and in the U.S. of A, we believe that courts should treat the accused as innocent until proven guilty.

However,  impeachment is not the same as a criminal conviction.  It’s a question of public trust.  Criminal standards–wherein we consider whether a person should be deprived of life, liberty and even property–are much higher than those for impeachment. Impeachment is merited for misconduct, alone. As my copy of  Black’s puts it, to impeach is to bring charges for “a violation of the public trust[.]”

Impeach

Under the Utah constitution, impeachment can be brought for “high crimes, misdemeanors, or malfeasance[.]” Further, impeachment can do no more than remove them from office. If the person being impeached has committed a crime, it remains for law enforcement and the courts to take things further to any appropriate penalties.

The interesting thing about  “high crimes, misdemeanors, or malfeasance,” contrary to what it sounds like, is that it is no more than a violation of the public trust.

So, has Swallow done anything that would rise to the level of violating the public trust and merit removing him from office by impeachment?


Possible Reasons for Impeachment

 

corruptionAt this juncture, it becomes a judgment call of the legislature. In the last six months, we’ve learned lots about Swallows path to public office that ought to give us pause. Any number of them could be a reason for impeachment (and note that the  “high crimes, misdemeanors, or malfeasance” for which Swallow could be removed need not have occurred during his short term):

  • Campaign finance violations. Both Swallow’s campaign and his donors have had a hard time accurately reporting donations. 
  • Deceptive campaign finance filings. The LG’s office is still investigating, but it appears that Swallow tried to hide information from voters in violation of campaign finance laws. Note that Swallow does not deny that this has happened and through his counsel “has offered to amend the disclosure forms per the statute[.]”  Ironically, this is nothing new for Swallow. He has a history of getting his campaign financials wrong.
  • Complicity in attempted bribery. Last week, a recording surfaced that had Shurtleff, while still AG, offering a $2 million bribe while Swallow looked on. Swallow has not denied the accusation directly.
  • Cash for Protection. Three businessmen have accused Swallow of asking for donations in return for protection from prosecution by the AG’s office. Not surprisingly, the FBI has interviewed these men. Of course, this isn’t news.
  • Conflicts of Interest. If quid pro quo relationships, bribery complicity, and deceptive campaign finance filings aren’t enough, evidence has emerged that Swallow was still trying to stay in business with the very people his office should have been pursuing, even after he was appointed Deputy Attorney General.
  • Dereliction of Duty. Unproven, but still out there, is the possibility that Swallow was involved in helping indicted businessman Jeremy Johnson dodge federal investigators. Swallow should have been pursuing Johnson, not trying to make him a business partner.
  • Violation of Client-Attorney Relationship: In short, Swallow violated legal ethics by betraying his client’s trust and attempting to conspire with the target of his client’s investigation. And he has admitted it happened, stating publicly that he’s proud of it.  That’s messed up.  Because I’m an attorney, and because this accusation comes from another attorney and not someone under federal indictment, this one strikes close to home.

Sadly, I suspect that this is only the tip of the iceberg, as Holly Richardson has put it. At most, it reveals a culture that should be removed from our political system. Already the effect has been felt on the Attorney General’s office where front line staff is reporting low morale.


 

Is it enough to impeach? Or will Swallow resign?

Is all this enough for impeachment?

I think so…I hope so.

If not, every Republican legislator on the ballot in 2014 is sure to face questions from constituents about why they would let someone like Swallow stay in office. Voters may not understand the intricacies of the law around impeachment, but they do understand honesty, honor, and justice.  They can tell the difference between a smear campaign and a pattern of corruption, and Swallow, and his mentor Shurtleff, have left a pattern of corruption in their wake that is staining our state.  They may talk a conservative game, but corruption is not a principle of conservatism.

But will Swallow resign?

Will Super Dell get elected Governor of Utah?

He can see just as well as the rest of us how his actions will be viewed once he’s out of office.  He saw how Shurtleff’s new million dollar law firm job ended prematurely this week, with the law firm scrubbing all reference to him from their site, after Shurtleff’s attempted bribery recording emerged. He knows that he can expect much the same response if he reenters the private sector.  After all, what law firm wants to take on an attorney with that baggage, to say nothing of legitimate bar complaints and federal investigations pending?


 

If the Lockhart convenes the House for Impeachment…Swallow will resign

The House isn’t going to begin impeachment proceedings unless its members are sure they can send articles to the Senate.  Further, the members of the House will want to be on the record condemning Swallow for the accusations against him, if just to provide cover for the next election (cynical, I know, but it is what it is).  Swallow may have taken a beating in the press, but none of that is anything like being the first AG to be impeached in Utah history.

He’ll resign before that happens….but only if the House convenes to for the purpose of impeachment.

Short of impeachment, I put Swallow’s chances of resigning at zero. Zilch. Nada. Kaput. He’s got nothing to gain by leaving willingly, but everything to lose. He’s not going to give up what cost him a $1.5 million of other people’s money to get elected. 6HKT_Impeachment_Process.pdf

 

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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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