Wednesday morning is the second formal meeting of the Utah House’s committee concerning Attorney General John Swallow wrongdoing investigation.
And perhaps in October, the federal government’s examination of any criminal activity by Swallow will wrap up. (Swallow and his attorneys say no federal charges will be filed.)
But while those two highly anticipated investigations move forward, the one that actually could lead to driving Swallow from office is secretively proceeding.
I’m speaking of the special counsel installed by the Utah State Elections Office, whose work is totally behind the scenes – no public meetings, no public testimony.
Mark Thomas, Elections Office director and chief of staff to Lt. Gov. Greg Bell, tells UtahPolicy that the special council’s work is going on as planned.
And by mid-December it is expected that the counsel’s report will be made public.
It will then be up to attorneys for Snell & Wilmer, the Phoenix-based law firm selected last month as special counsel, which also has Utah offices, to decide whether there is enough evidence to formally take Swallow to court.
At the request of a liberal-leaning public interest group – The Alliance For a Better Utah – the Elections Office looked into a dozen specific allegations that Swallow violated state election/campaign finance laws in his 2012 run for attorney general.
Most of the allegations were dismissed by Thomas’ office. But three were found to have enough merit that the special counsel was hired to undertake an investigation.
Should S&W find there is enough evidence, the firm (not Bell’s office) will bring a charge against Swallow in civil, not criminal, Third District Court.
And after a civil trial, a judge could – following state law – order the attorney general’s 2012 election void.
That would, in essence, kick Swallow from office and a new attorney general would be appointed by GOP Gov. Gary Herbert, with the advise and consent of the state Senate.
Herbert has already said that if Swallow were working for him, he would fire him over any number of serious accusations against the AG.
So there’s little chance that Herbert would appoint Swallow to office.
Rather, any number of loyal Republican attorneys in Utah may “run” for AG within the state Republican Party – whose delegates would select a name to send up to Herbert.
With Swallow out of office, the House’s investigation would end, since the Legislature can only act to impeach a sitting state officeholder and can’t take any criminal or otherwise civil action against a man out of office.
And if the Salt Lake and Davis county attorneys, like the feds, also found insufficient evidence to bring criminal charges against the attorney general, the whole dirty Swallow affair would be over.
Swallow’s attorneys have already stated that under the Utah Constitution, the only way to remove a sitting state officeholder is for the state House to impeach him and then the state Senate to find him guilty in a trial.
In other words, you can’t remove a sitting officeholder via a state court judge deciding an election is void.
So it appears Swallow would fight any such court ruling all the way to the Utah Supreme Court.
Should Swallow’s election be voided, that appeals process could be fast-tracked. And the higher court could still rule before the Legislature acts on any impeachment process – which could take months and proceed well into 2014.
Thomas says while his office recommended only three specific campaign code violations to S&W, the special counsel is not limited to those three. Any elections violations can be investigated and taken to civil court – another extension of power that Swallow’s attorneys disagree with.
“The contract with Snell & Wilmer was signed Aug. 14,” said Thomas. “We still expect them to finish in four months, which would be mid-December.”
The House’s special investigation committee may not even start calling witnesses until November or December.
While the House’s investigation into Swallow could cost upwards of $2 million – it is broader ranging — the Elections Office’s is expected to cost just $200,000.
As far as Thomas can tell – and he is not directly part of the campaign finance investigation – all is going well, with depositions of witnesses being scheduled.
Swallow says he didn’t violate state election code.
He is accused of improperly setting up a “consulting” firm just days before his candidacy filing, which led to Swallow not properly reporting income made from that firm on his campaign disclosures.
In turn, that business arrangement allowed Swallow to be paid money that one of his accuser’s says was a “bribe” to help sideline a Federal Trade Commission investigation, which ultimately went forward.
Again, Swallow denies all those allegations.
But it may well be the Elections Office investigation that leads to Swallow being removed from office, if the 2012 AG election is voided by state courts.