Swallow Investigation Has Already Spent Half of $3 Million Budget

Utah Attorney General John Swallow could never make it as a running back or receiver in the NFL.

He keeps dropping and/or losing stuff. He could never hang on to a football.


Wednesday, in a briefing before an open House GOP caucus, Rep. Jim Dunnigan – the chair of the special House investigative committee looking into various allegations against Swallow — revealed that Swallow, whose trouble in losing/erasing emails, calendars and other electronic data has been well publicized, “lost” his iPad in December 2012 while on a visit to Washington, D.C.

In addition, said Dunnigan, there is now a new discrepancy about one of Swallow’s cell phones.

The committee investigators were at first told that Swallow had lost or misplaced it, as well, so several text messages that investigators are interested in were gone.

But then it turns out that maybe that phone was not lost for good, but maybe misplaced for a while, and now it is found again. But it’s not clear if the texts the committee wants are still on it.

“We’re still looking into this” cell phone flap, said Dunnigan.

But it is pretty clear that the iPad is gone for good.

Note to folks who sell replacement insurance for cell phones, tablets and computers: Don’t sell John Swallow a policy. You’ll be losing money on it.

In addition, when Swallow turned in his old desktop, laptop and cell phone to his IT staff in December of last year (devices he’d used after being hired as deputy AG in December of 2009), they asked him if there was anything on them that he wanted saved, Dunnigan said.

However, apparently, says Dunnigan, no data was saved from Swallow’s machines at all. Data back-up tapes were later erased – also part of AG IT procedure. And now that Swallow data apparently can’t be recovered.

So what’s wrong with devices being wiped by staff when they are turned in?

Considering that Swallow knew, or should have known, he may well be under investigation by several law enforcement agencies, the new attorney general should have specifically asked that those devices not be wiped, but kept as possible evidence, House investigative attorneys say.

Several House GOP members seemed a bit stunned when Dunnigan told them about the latest Swallow incidents – or should we say soap opera.

They were also stunned – one could hear a few grumbles and gasps – when Dunnigan said $1.5 million has been spent, or will be spent soon, on the House’s special Swallow investigation.

That is half of the estimated $3 million that the House, meeting in special session, authorized in July for the whole Swallow investigation.

Dunnigan said because the committee must go to court in at least two cases, the litigation bill is topping $300,000 by itself.

It was hoped the fact-finding work, including issuing subpoenas to various folks and businesses, could be accomplished without having to go to court. That has not proven the case, however.

On Dec. 11 committee lawyers plan to be in state court seeking to get one of Swallow’s previous employers, Softwise, to turn over emails or other electronic communications.

Softwise, which provides software to the pay-day lender business sector, has refused to comply with a committee subpoena, claiming client privilege.

It’s known that Swallow sent some potentially-damaging emails to his now-accusers from his Softwise email account, which he used even after leaving that firm to go to work for the AG’s office.

Swallow worked for Softwise, which also runs a pay-day lender operation in Utah, before being hired by former AG Mark Shurtleff in December 2009 as his chief deputy.

Swallow was also a chief fundraiser for Shurtleff’s campaign and good government PAC.

Several weeks ago, Steve Reich, the special investigating attorney hired by the House committee – who has been involved in some famous public official impeachment proceedings across the country – told the committee that he has never seen the loss of electronic data that has turned up in the Swallow case.

— Swallow’s private desktop crashed earlier this year.

— The AG turned over to his staff his office desktop, his laptop and cell phone, all of which were erased by staff.

— Personal calendar items on one device were also erased.

And now a phone believed lost has turned up, and Swallow’s iPad was lost in Washington, D.C.

There may be adequate explanations for all of the lost electronic data from Swallow’s personal and official devices, said Reich.

But taken together it is hard to not wonder what is up, he added.

Dunnigan and legislative chief attorney John Fellows told the caucus that even though committee investigators are hearing this or that about Shurtleff, out of office Dec. 31, 2012, the committee is not pursuing any of that stuff.

The resolution passed by the House, tasks the committee to find out facts about Swallow’s actions (as alleged in various media reports) and present them to the House; it doesn’t mention Shurtleff.

“We are taking our charge very seriously,” said Fellows. And the committee won’t stray into areas not associated with Swallow’s actions in 2009, 2010, 2011 and 2012.

Still, spending half of their $3 million in just 90 days didn’t sit well with some Republican House members, who glanced around at each other when Dunnigan reported that figure.

Dunnigan said it’s likely sometime in December the committee will start calling witnesses in public meetings, and then the scope and allegations against Swallow will be made more clear.

One GOP House member said it appears to him that the Utah Constitution restricts the Legislature’s authority to removing a sitting officeholder – through impeachment – only for criminal acts committed while in office.

Fellows had two answers for that:

1) The House committee is NOT investigative for impeachment hearings. The resolution passed gives the committee the charge of investigating various Swallow actions – most reported in the media – and to make a report of the facts to the House.

The Legislature can investigate just about anything, anytime it wants.

2) While it is true the Utah Constitution says that officeholders can be impeached and removed from office for “high crimes, misdemeanors, or malfeasance in office,” in reality many other states with similar constitutional language have investigated and impeached officeholders for acts they committed before taking office and/or for acts that were unethical, destroyed public confidence in the officeholder and some such.

Since no high state official has ever been impeached in Utah before, the Utah Supreme Court has not ruled on that issue, said Fellows.

“Impeachment is a political act, not (based on) criminal behavior,” said Fellows.

If the Utah high court ultimately ruled that Swallow couldn’t be removed from office after being impeached by the House and found guilty in a Senate trial for noncriminal acts before he was sworn in, the high court “would be out of step with most other state” supreme courts that have ruled on the issue, said Fellows.

Most other high courts in other states have ruled on impeachment standards “with a more expansive” eye, saying the official could be removed for unethical or inappropriate conduct, which didn’t rise to the level of a crime, Fellows added.

Finally, it is customary that when a fellow House GOP caucus member is praised for his work – as Dunnigan was by one of his Swallow committee members – caucus members give that representative a round of applause.

But after Rep. Mike McKell, R-Spanish Fork, praised Dunnigan for his hard work and diligence, there was silence from the caucus.

An oversight perhaps.

But more and more GOP House members are wondering these days just what they may have gotten themselves into – financially and otherwise – in the John Swallow investigation.