The words of the day: fabricated, erased, misled and — obstructed.
It’s that last one that raises questions about potential criminal charges against former Attorney General John Swallow, possibly for obstruction of justice.
Steve Reich, special counsel to the Utah House committee examining Swallow, pointed Thursday to instances in which he argues Swallow cooked up evidence, misled investigators and intentionally wiped out — or caused to be deleted — emails and other electronic data.
“Have we hit on anything that could potentially be illegal?” asked Rep. Jennifer Seelig, D-Salt Lake City. “I mean, falsification of documents, misinformation?”
Concerns came from Republicans as well.
“Unless you believe in some sort of mystical technology-eating dragon,” said Rep. Francis Gibson, R-Mapleton, “there’s got to be some obstruction there.”
With the caveat that he is not a prosecutor in Utah, Reich — a member of the defense team during then-President Bill Clinton’s impeachment — said the inquiries about the destruction of evidence and fabrication “may well be a question a prosecutor asks himself or herself.”
“Our analysis,” he said, “is that there are at least some statutes that are implicated here and would be appropriate for any prosecutor who was going to pursue this issue.”
Reich mentioned the state’s obstruction-of-justice statute, criminal provisions within the Government Records Access and Management Act, a separate law that makes it a criminal penalty for failing to retain public documents, and a law against interfering with the official duties of a state employee.
Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings are conducting a criminal investigation into the activities of Swallow and his predecessor, Mark Shurtleff.
“The issues presented today, though public for the first time, were not unknown to us as part of our collaboration with [other] investigators,” Gill said Thursday. “ ... Any relevant issue that rises to the level of criminal charges would be something that would be squarely within the scope of what we’re looking at.”
Eric Benson, a former federal prosecutor and now a white-collar-crime defense attorney, said charges against Tim Lawson, a former political fundraiser for Shurtleff, could point in part to where the county probes might go.
“This information seems especially relevant in this overall investigation,” Benson wrote in an email, “considering that Mr. Lawson has already been charged with ‘obstructive’ type conduct in his pending criminal case.”
Rep. Mike McKell, who is a lawyer and a member of the special House committee, said it would be appropriate for the Utah State Bar to examine whether Swallow misled investigators.
“One of our obligations as an attorney is to be truthful,” the Spanish Fork Republican said, “and I think it’s fair for the Bar certainly to look at Mr. Swallow and if he has truthfully and fairly represented his positions to this committee.”
Swallow’s attorney, Rod Snow, said Thursday that the Bar has dismissed the second of two known complaints against his client. This one accused Swallow of violating ethical standards by discussing a case with a potential political donor who was a target of an investigation by the Division of Consumer Protection. The attorney general’s office represents the division.
In October, the Bar dropped an ethics complaint about Swallow from the left-leaning Alliance for a Better Utah.