Lawmakers 'Very Troubled' by Missing Electronic Files in Swallow Investigation

Written by Bob Bernick on . Posted in Today At Utah Policy

How many times is it said: It is not the crime that finishes a politician, but the cover-up afterwards.

And the political problems of Utah Attorney General John Swallow just got a lot worse this week.

 

A number of emails, calendar entries and other electronic documents sought by the House’s Special Committee on the Swallow investigation were found missing from the AG’s office, and perhaps from outside email firms Swallow may have used during the time frame the special committee is looking at.

The committee’s special counsel, Steve Reich, led a broad and lengthy discussion Tuesday outlining how frustrated he is over the inability to get those materials.

It is safe to lay out Swallow’s political problems like this:

-- He is a crook, and actively sought to destroy his emails, calendar meetings or other data that could have led to his downfall. (Reich has no evidence of this at this time, he said.)

-- Swallow is very crafty; knowing about upcoming regular scrubbing of AG office emails, calendars and other information and didn’t act to stop it. (Some chance of this.)

-- Swallow is a lousy – even a stupid – lawyer; not taking basic, routine actions to stop the regular purging of AG office emails and other documents that are part of a ongoing criminal investigation. (How do you run for re-election, or defend yourself in any impeachment process, by saying you just didn’t know you were supposed to put a “document hold” on critical materials that could have implicated you in any wrongdoing.)

You can listen to the whole two-and-a-half-hour committee hearing here.

Reich, in his explanation to the committee about how possibly critical electronic data on Swallow’s AG office desktop and lap top computers were lost, used terms as “very, very troubling” and unusual “coincidences” in trying to explain how hard drives from several computers were erased; how backup tapes were overwritten; and especially how Swallow or anyone in his office failed to order that relative materials concerning allegations against Swallow were never protected.

“It is basic functioning of lawyers” when an office finds out that it, or its leader, is under investigation from several fronts not to immediately issue a “document hold” – the legal term for an order to all office staffers not to destroy, or allow to be destroyed under a normal computer wiping process, important documents that could be critical to the investigation.

A number of times Reich said “IF” Swallow or other AG staffers knew such documents were being destroyed, then the very act – or the non act – of stopping such destructions “can’t be ignored” by the special House committee.

After spending more than an hour laying out evidence that points to something fishy going on by Swallow or some of this staffers, Reich said the committee shouldn’t jump to conclusions, and that he and his investigators will work hard to try to find out the true facts of the information wipe.

However, Reich also said it may come to pass that destroyed documents can’t be restored, or that they may ever find out exactly what happened and why.

Reich pointed out that when lawyers for Jeremy Johnson – one of the men now facing various criminal actions who, Johnson says, asked Swallow for help – sent subpoenas asking for document holds on any Johnson-related matters, the AG office complied.

Yet the office didn’t keep all documents that would normally be kept on other Swallow-related issues.

And in fact, said Reich, Swallow himself in January asked the local FBI to investigation allegations made against him in the press; yet Swallow nor anyone in his office sent out a “document hold” at that time.

Again and again, when various legal issues came up in the AG’s office, Swallow later this year didn’t put on a document hold.

In fact, no hold was placed until Reich’s folks themselves asked the AG office in September to do so.

It was one of the first things Reich did after being hired by the Utah House.

Reich, who has worked in local and federal law enforcement and various investigations, said he was dumbfounded when he discovered that no document hold was placed on Swallow documents going back several years – while Swallow was chief deputy for then-Attorney General Mark Shurtleff.

Reich had no explanation on why the FBI, the federal Justice Department and two local county attorneys, all investigating Swallow, never asked the AG’s office for a document hold.

And Reich said he can’t explain why those other investigations didn’t find out that critical electronic information that may have concerned Swallow was destroyed.

Reich said he can’t yet determine whether such destruction was just regular office computer cleanup, and bad timing for the House’s investigation, or if something else is going on.

Without such a document hold, the hard drives of Swallow’s desk and lap top computers when he was chief deputy were – according to office policy – destroyed or overwritten when Swallow, as the newly-installed AG, this past January asked for new computers.

Aside from those instances, Swallow’s home desktop computer went dead this year as well.

Swallow turned that computer over to his private defense attorney, who hired a special consultant, who says the home hard drive is nonfunctioning.

Apparently the consultant can’t get it to work.

Reich also pointed out to a skeptical special committee that Swallow has turned over to his private attorney his AG office hard-drives.

And Reich wondered how appropriate that might be.

In short, it is a big computer mess.

Reich says he was counting on information stored in Swallow’s computers and emails from other entities to help form a paper trail, if you will, of Swallow’s activities during the last two years when various witnesses are saying that Swallow was acting and saying inappropriate things when he was Shurtleff’s right hand man, and then running for attorney general himself in 2011 and 2012.

The committee also voted to take Softwise, Inc., to court, if necessary, to get personal emails Swallow reportedly sent Johnson, and perhaps others.

Softwise is a Provo-based firm that provides electronic financial services. Swallow used Softwise in his AG campaign.

Softwise lawyers have refused to turn over the emails to the special committee, citing client confidentiality promises.

His voice dripping with sarcasm, committee member Rep. Francis Gibson, R-Mapleton, said he found it ironic that Swallow has pledged his cooperation with any number of investigations, including the committee’s, yet doesn’t seem to be acting like he’s cooperating.

Gibson later said that since Swallow has publicly argued the Legislature’s investigation of him should stop because the FBI and Justice Department aren’t going to indict him -- and the legislative investigation is costing money -- then Swallow should agree to allow the special committee to see his (Swallow’s) testimony before a separate inquiry being conducted by the Lieutenant Governor’s Office.

That office is looking into any Swallow wrongdoing in filing campaign financial reports last year. If the committee is forced to sue in court to get the transcripts, it will cost taxpayers $10,000 to $30,000, said Reich.

Softwise must also give its consent for the Swallow transcript to be given to the House’s committee, since Softwise was also part of the LG’s investigation.

Reich said several times that he doesn’t understand why Swallow or other top aides didn’t issue a document hold order before September of this year.

But, Reich admitted, that neither he nor anyone else can force an agency to issue such an order, just that it would be normal practice for any knowledgeable attorney to do so.

The first thing a qualified investigator does in any public corruption inquiry is to ask for the hard drives of those under suspicion. If they can’t be produced, then the investigator goes to backup tapes – a snapshot if you will of all the hard drives in the office.

But when Reich’s folks asked for the backups, they were told they were either destroyed or overwritten as part of a standard AG IT process.

John Fellows, legislative chief counsel and the lawyer overseeing special committee’s work, said such document holds are standard procedure when a routine GRAMA request is made in state government.

And certainly Swallow’s legal problems would seem to be more important inside of the AG’s office than a normal GRAMA request.

Swallow says he has done nothing wrong and is innocent of all the public claims against him.

Reich says he will continue investigating why Swallow’s home computer hard drive is dead and why his two older office hard drives were wiped or overwritten.

But those hard drives are in the possession of Swallow’s private attorney and have yet to be turned over to the committee for evaluation.