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The two county prosecutors who have led the investigation of former Utah Attorneys General Mark Shurtleff and John Swallow are so frustrated with the meddling of the U.S. attorney's office that they are suggesting the feds take over those cases.
Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings, who have been involved in the probe for years, say the U.S. attorney's office for Utah showed utter disregard for an immunity agreement they extended to Jeremy Johnson — obtaining evidence and testimony from the St. George businessman in violation of the deal — a move they fear could jeopardize or at least hamper their prosecutions.
Gill said Wednesday the justice system hinges on prosecutors being able to back up any promises they make.
"[When] evidence is taken in violation of the prosecutorial decisions … and done in a way that undermines the relationships we're working on to prosecute our cases, it seems to me that can be construed certainly as insensitive and counterproductive to the objective of getting justice," he said. "That's incredibly frustrating."
A spokeswoman for Utah's U.S. attorney declined to comment.
Gill, a Democrat, and Rawlings, a Republican, gave immunity to Johnson, an indicted businessman at the heart of the Swallow-Shurtleff scandal, last year.
In return, Johnson provided considerable evidence, including information about illegal contributions he said he made to Shurtleff and U.S. Sens. Mike Lee, R-Utah, and Harry Reid, D-Nev.
That information was handed over, without the knowledge of Gill and Rawlings, to the U.S. attorney's office for Utah, which previously had filed an 86-count indictment against Johnson and his associates alleging fraud and other crimes surrounding his I Works business empire.
The information also led to a Federal Election Commission lawsuit against Johnson over his alleged illegal "straw donations."
Johnson's defense attorney, Ron Yengich, said in a court motion Wednesday that it was an FBI agent and a Utah Department of Public Safety investigator who provided the evidence to the U.S. attorney's office.
"This investigator and FBI agent is apparently an operative for the U.S. attorney's office in the investigation of Shurtleff and Swallow ..." Yengich wrote, "and provided information without authority of the special prosecutor [Gill and Rawlings] and contrary to an immunity agreement between Mr. Johnson and the special prosecutor's office."
The FBI's Jon Isakson and DPS investigator Scott Nesbitt were principal players in the probe.
The U.S. attorney's office for Utah had recused itself from the Swallow and Shurtleff investigation, citing unspecified conflicts of interest.
But Rawlings, who is prosecuting Shurtleff, said that if the office believes it is entitled to evidence in the matter, then maybe those federal attorneys should do their job and take over the case.
"If the local U.S. attorney's office is now 'conflict-free' and can exercise prosecutorial discretion by dishonoring our immunity agreement, they are 'conflict-free' and can take back the case. I invite them to do so," Rawlings said. "With the FBI's continuing assistance, I ask the U.S. attorney's office … to search for the light, play the cards dealt, follow the evidence provided by Jeremy Johnson and others to whatever island it goes."
Gill, who is overseeing the Swallow prosecution, reiterated that the breadth of the cases against the former attorneys general — and other issues related to them — never should have been matters for a pair of county prosecutors and should have been pursued by federal agencies.
But after the U.S. attorney's office stepped aside, the Department of Justice's Public Integrity Section later reported that it would not file any charges against Shurtleff or Swallow.
Investigations continued, however, with Gill and Rawlings working with agents from the state and the FBI, ultimately filing multiple felonies against Swallow and Shurtleff.
Both former GOP officeholders have publicly proclaimed their innocence, and their lawyers declined to comment on the request that the U.S. attorney take back their cases.
In response to the FEC lawsuit, Yengich further muddied the judicial waters Wednesday, filing a motion that seeks to lift the gag order against Johnson and his attorneys in the businessman's criminal case.
The defense attorney said the gag order has given government prosecutors "an unfair advantage in the court of public opinion and may well have made selection of a fair jury ... nearly impossible."
He also cited a statement by Melodie Rydalch, spokeswoman for the U.S. attorney's office, who said this week that her office has abided by a strict ethical code, putting the federal prosecutors "in a public posture of presumed superior ethics."
Johnson, his lawyers and potential witnesses believe that statement to be inaccurate, Yengich wrote.
In another motion, he asked the court to order the government to turn over any information related to potential conflicts that Assistant U.S. Attorney Brent Ward had when he was lead prosecutor on Johnson's criminal case.
Ward recused himself from the matter when questions surfaced after his decision to seek the Republican nomination to replace Swallow as Utah attorney general. Swallow had resigned after less than a year in office amid the corruption probe.
Among other things, Yengich is seeking any information on Ward's relationship with Shurtleff, Swallow and Lee.