Perhaps it’s what John Swallow doesn’t say that is most vexing in his meeting with Jeremy Johnson last year at an Orem doughnut shop.
Yes, Swallow, then Utah’s chief deputy attorney general, can be heard conceding he may be the target, or the “big fish,” in a federal investigation. Sure, he wonders aloud about whether he accepted fees from a company Johnson says was part of a scheme to bribe a powerful U.S. senator. Indeed, he voices fears that he could lose his law license and end up a “felon.”
But even if Swallow, now Utah’s attorney general, can explain those comments, what he doesn’t say could be just as troubling. For instance, Swallow does not:
• Balk verbally at Johnson’s suggestion that he buy a Wal-Mart cellphone whose calls cannot be traced.
• Speak up forcefully when Johnson suggests that a third party destroy emails that could become evidence in a federal probe.
• Tell Johnson, who was secretly recording the conversation, that the plot contained in the indicted businessman’s description of an alleged earlier payoff to the same U.S. senator, Senate Majority Leader Harry Reid, may have broken the law. Nor does Swallow warn Johnson that he, as a leading law enforcement officer, might be obligated to report such an illegal activity.
“I have said from the beginning that there are things that in hindsight I would have done differently,” Swallow reaffirmed in a statement released Tuesday. “To ensure this never happens to me or anyone else, I have also instituted policies in the Attorney General’s Office to make sure the highest standards are followed.”
The transcript of the April 30, 2012, Swallow-Johnson meeting at an Orem Krispy Kreme — now available at sltrib.com along with a previously posted audio file — raises questions big and small. Swallow and his allies see vindication in the recording. Others see cause for concern for Utah’s top cop.
“Transcripts sometimes are very tough because we can glean from them things that were not intended or communications that were not there,” says Brett Tolman, a former U.S. attorney for Utah who is now in private practice. “But transcripts also are unique because they can give you information, like in this instance, when an individual doesn’t know they are being recorded.”
Emily Chiang, an associate professor of law at the University of Utah who teaches ethics, says an overarching question — beyond any exchanges in the transcript — is why a top law enforcement official would meet with someone under indictment.
“There are two general concerns: one about the appearance of impropriety and one about actual impropriety,” she writes in an email. “As a public official and prosecutor, Swallow would be obliged to avoid even the former.”
Paul Cassell, another University of Utah law professor and a former federal judge, says he doesn’t see in the transcript possible criminal actions by Swallow. But Tolman finds troubling aspects — from possible crimes to ethical missteps — that could draw investigators’ attention.
Here are some excerpts:
Swallow: I wish you could just (inaudible).
Johnson: Well, that’s why go get a friggin’ Walmart phone.
Swallow: I know.
Earlier in the conversation, Johnson had urged Swallow to get a cellphone from Walmart because, he said, those calls could not be traced. He repeats that advice toward the end of their meeting as well.
Cassell sees no criminal intent here on Swallow’s part.
“My sense of the transcript,” Cassell says, “is that Swallow just ignores this suggestion.
Besides, Cassell adds, “buying a nontraceable phone is not a crime — just as someone keeping their voice down so the cops won’t hear them is not a crime.”
Johnson: So I transfer a million dollars to some weird company, one-time deal, that’s it. And guess what happens the next week. Reid introduces a bill to make online poker legal. So to me everything Richard’s saying —
Swallow: Rings true?
Johnson: — makes sense. And you can go and verify that he actually did introduce that bill.
At several points, Johnson tells Swallow about what Johnson believes was an effort by online-poker companies to pay Reid to introduce a bill legalizing the game. Johnson does so as a way of bolstering his assertion that his own deal with Richard Rawle, the late owner of a Provo-based payday-loan chain, involved a similar effort.
Here, Tolman says, Swallow may have a duty to report a potential crime. “Is there an obligation at that point that he has a discussion with folks in his office?”
Cassell counters that, since it appears Swallow doesn’t believe a crime occurred, he need not report it.
“In any event,” Cassell says, “federal law does not require people to report crimes to authorities — although good citizens do report crimes when they come to their attention.”
For his part, Swallow maintains he “certainly did not receive any credible evidence about a plot to bribe a senator.”
“He thought the comments seemed absurd,” according to Utah Attorney General’s Office spokesman Paul Murphy.
Reid’s office has adamantly denied Johnson’s allegations as well.
Swallow: So why would they [investigators] even be thinking about Harry Reid?
Johnson: Well, because it’s — it’s in your emails.
Johnson: You’re — you spell it out pretty clearly that the money is going to —
Johnson: — influence Harry Reid. And I just feel like — I — I feel like — I feel like —
Swallow: What a curious (inaudible) thing for me to say. Wow.
Johnson has alleged that Swallow helped broker a bribe to enlist Reid’s help in derailing a Federal Trade Commission investigation of Johnson’s I Works business.
Like Reid, Swallow has denied any such scheme. Swallow says he merely helped Johnson hire lobbyists to work on his case.
In this exchange, according to Johnson, Swallow had sent him an email mentioning Reid and that it would likely take a lot of money to fix the businessman’s problems.
Tolman says investigators would be interested in seeing such an email, which could point to greater involvement by Swallow.
Cassell senses Johnson may be trying to set up Swallow.
“Johnson seems to be alleging bribery of a U.S. senator, which seems far-fetched to me,” he says. “And Johnson has an obvious motive to try and concoct such a scheme and then try and suck Swallow into it.”
Swallow: Is Reid the politician [the FBI is looking at]?
Johnson: It could be. That’s what I’m saying. I don’t know that it’s you. They redacted all the emails. My attorney doesn’t know. So —
Swallow: I’m — I’m not confident that it’s not me they’re looking for.
Here, a worried Swallow concedes that investigators could end up suspecting him of greater involvement in the deal. At one point he says he hopes he’s not the “big fish.”
“There’s an acknowledgment and an awareness by Mr. Swallow that he would understand why someone [in law enforcement] might be looking at him,” Tolman says. “That’s an interesting aspect of the dialogue.”
Tolman was the subject of acritical 2009 letter that then-Utah Attorney General Mark Shurtleff sent to U.S. Attorney General Eric Holder. Shurtleff and Swallow were political allies.
Swallow: Well, when I talk to her [an FBI agent], I’m going to tell her everything. I mean —
Johnson: Who? The lady?
Swallow: I would tell her, yeah, my involvement.
Johnson: I think — she tried to call you, too?
Swallow: No. No. But I have nothing to hide.
In this exchange and others, Swallow insists he has done nothing wrong and that he was minimally involved with Johnson. At one point he tells Johnson that “at the end of the day, I thought — I thought you were — you were paying Richard [Rawle] money so that he would lobby.”
Swallow says he helped connect Johnson to Rawle because “I felt the FTC was screwing you.”
Swallow: I don’t even know what those guys [investigators] have the power to do. Do they have the power to go to Richard and get his emails?
Johnson: No. Not without — well, you might tell Richard to delete sh-- off — to be wary that there could be an investigation and if there’s anything on his server that he doesn’t want the government to have to —
Could these comments spur cries of obstruction of justice? Maybe not.
“Swallow does not agree to do anything like this, so that wouldn’t be an obstruction charge against Swallow,” Cassell says. “In any event, a federal obstruction-of-justice charge generally requires specific awareness of a federal investigation.”
Cassell acknowledges “the transcript is just one piece of a larger puzzle — there may, of course, be other evidence out there.” But, overall, he sees Johnson as trying to entice Swallow into admitting to something that Johnson himself has crafted.
Tolman says there are various things in the transcript FBI agents or an ethics panel would want to investigate.