Bob Bernick, Utah Policy Contributing Editor
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In a very unusual move, the Utah House will call itself into session to begin what one GOP representative called a “pretend” impeachment of Attorney General John Swallow.
After more than three hours of debate and question-answering, the 61-member House Republican caucus decided to split the baby – not formally call for impeachment hearings on Swallow now, but set up a never-been-tried-in-Utah-before special investigatory committee, which will have all the powers of a regular impeachment committee but without the name, and some of the legal baggage.
GOP House leaders said that if the special committee finds impeachable offenses took place, the House could start impeachment proceedings later.
UtahPolicy is told that this new committee structure could very well look into matters that a straight impeachment committee couldn’t. Some considerations:
-- Impeachment is against only a sitting officeholder. Swallow has already said that he can’t be held accountable for any actions he took as a private attorney – when he was fundraising for his mentor, former AG Mark Shurtleff.
And there are real questions whether Swallow could be held accountable in an impeachment proceeding for actions he took while he was Shurtleff’s chief deputy AG, starting in 2009. He was a staffer then, and impeachment doesn’t deal with state employee misconduct, only those of sitting elected officials.
-- But the special investigative committee could look at Shurtleff’s time in office, Swallow’s time as a chief fundraiser for Shurtleff (when Swallow was working for a now-deceased owner of a payday lender firm), Swallow’s time as chief deputy, and when he was running for AG last year, before he actually was sworn in as AG last January.
-- The special investigatory committee could also look at current or former staff members in the AG’s office.
“The powers of the (investigatory committee) will be very broad,” House Speaker Becky Lockhart said in a press conference after the long GOP caucus meeting wrapped up.
In short, setting up a special investigatory committee is actually a more comprehensive approach whose net could ensnare more wrongdoers than Swallow (should he ultimately be placed in that category).
-- A formal impeachment process, with a special prosecutor and investigators, with the words “impeach” and “impeachment” repeated daily in newspaper headlines and on the nightly local TV news, would lead citizens to believe that Swallow would in fact be impeached.
But after all of those impeachment hearings, it could be that the 75-member House couldn’t find two-thirds votes (the required super-majority) to impeach Swallow and send him before a trial in the Senate.
Starting the formal impeachment process but falling short could lead to a really unhappy electorate, which may be reflected in the 2014 legislative elections.
A special investigatory committee, not carrying the word “impeachment,” could give political cover later should Swallow be cleared of really foul deeds.
-- What the House Republicans propose has never happened in Utah before. There are no rules or a process to follow. Even more troubling to some is that Lockhart will call the House into session within a few weeks to start this investigatory process – a power not given to her in the Utah Constitution.
But she believes, as does her chief legislative counsel, John Fellows, that the speaker can call the House into session to adopt or change internal House rules, although the Constitution doesn’t say that.
“It is implied,” Fellows told the GOP caucus, through general constitutional legislative powers.
When in that unprecedented session (no one knows what to call it, since it isn’t listed in the Constitution), Lockhart will appoint the special investigatory committee. Process rules and authority will be given to the committee. Likely a special prosecutor outside of the Legislature’s attorney staff will be hired, as well as at least one investigator. The whole investigation could cost millions of dollars, but House GOP leaders promised they would save money where they can.
The whole House will decide the committee make-up and powers (which surely will include subpoena and contempt of Legislature authority to try to make witnesses testify).
-- The 14 House Democrats are happy that Lockhart and the majority Republicans will at least start an independent investigation of Swallow et al., Minority Leader Jen Seelig, D-Salt Lake, told UtahPolicy.
Seelig wants the investigatory committee to be half Democrats, half Republicans, like the make-up of the House Ethics Committee and the Legislative Management Committee.
But several GOP House members told UtahPolicy that they want the special committee to be like standing committees, proportional partisan membership the same as the make-up of the whole House – 61 Republicans, 14 Democrats, or 81 percent GOP to 19 percent Democratic.
-- It was clear from the GOP House caucus discussions that GOP House leadership actually “led” the large, sometimes unruly group, to a consensus Wednesday.
House leaders said they have been meeting “for hours and hours” over the last few days trying to come up with some kind of compromise to straight impeachment or doing nothing, (they wouldn’t use the word “compromise”) and get most of the 61 Republicans in a “feel good” situation.
Assistant Majority Whip Don Ipson, R-St. George, a trucker who sometimes uses interesting language, said: “Half of the caucus wanted impeachment now; half didn’t want impeachment; and half didn’t know what they wanted.”
Yes, Ipson said, he realized he had three halves – but that was the reflection of all of the opinions in the caucus.
-- Swallow, who met privately early Wednesday with dozens of members of the House’s Conservative Caucus, held a brief press conference outside of his Capitol office after the House caucus decision.
He couldn’t have been happier, saying the caucus “got it right” by not proceeding against him in impeachment now.
“Certainly it is not the right time to start impeachment – with “high crimes and misdemeanors” (as impeachable offenses) – that would not have been a good thing.”
Swallow repeated his mantra, that once all the truth is known no criminal charges will be filed against him by several prosecutors looking at his actions, and no impeachment will be brought against him by the House, either.
Swallow promised complete cooperation with the House’s new special investigatory committee. “I’ve always asked” for a forum where he could defend himself against the “witch hunt” perpetuated by the local media, he said.
Swallow said that Shurtleff had “friends and meetings” that he didn’t know about or attend – so he shouldn’t be lumped into any problems for the former AG may now have.
Swallow added that Shurtleff is now under a federal Justice Department probe.
-- All this is not to say that all of the 61 House Republicans were happy with the caucus’ decision.
Rep. Spencer Cox, R-Fairview, who has written an extensive blog posting on Swallow impeachment, called the special committee a “pretend impeachment committee,” adding the House’s real constitutional responsibility to Utahns is to start formal impeachment now.
“We are shirking our constitutional responsibility,” said an emotional Cox. Pointing out that Shurtleff is on tape “extorting” money from a man being investigated by the state and that Swallow later went on luxury trips paid for by that man. How can the “good people” in the AG’s office have any public trust?
The House shouldn’t wait for federal or county attorney investigations of Swallow to wrap up – who knows how long the will take and who knows if that information will be shared with the public and Legislature? He asked.
“I’ll be damned to let (prosecutors) restore the public’s trust” in the AG’s office. That responsibility is up to the Legislature, and only a full-on impeachment proceedings can do that, Cox added.
But Cox said he’ll support the compromise “pretend” special investigative committee.
“We need to clear” Swallow “or put someone else in there who can restore trust,” Cox said.
Two interesting tidbits:
-- Swallow said he watched the GOP caucus on live streaming provided by a local TV station. He agreed with many of the sentiments expressed by his fellow Republicans.
-- And just at the crucial part of the caucus meeting when motions were being made, Rep. Doug Sagers, R-Tooele, was on his iPad, linked to the tape of Swallow talking to a supporter (who was secretly taping the conversation) saying when he was elected AG he would move the state’s Consumer Protection Agency into the AG’s office (even though he doesn’t have that power), with the clear implication that he could help supporters with problems with that agency.
Sagers couldn’t control the sound, and so Swallow’s voice burped out into the caucus meeting, causing embarrassed laughs.
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