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Jeremy Johnson plans to invoke his Fifth Amendment rights against self-incrimination rather than respond to an ongoing Federal Election Commission lawsuit, an attorney for the imprisoned St. George businessman said Tuesday.
The FEC sued Johnson and former Utah Attorney General John Swallow in 2015, saying the pair engaged in a scheme that saw straw donors — Johnson's friends and family — funnel $170,000 in illegal campaign contributions to candidates for federal offices in 2009 and 2010.
The case has been on hold since 2016, while Swallow fought unrelated criminal public corruption charges in state court.
Swallow was acquitted in March, his case helped in part by Johnson's refusal to testify in the four-week trial.
On Tuesday, as the FEC case restarted in Salt Lake City's U.S. District Court, Johnson's attorney said his decision not to cooperate with the government stems in part from the Swallow case.
Johnson was ordered to a 30-day jail sentence for refusing to testify and has been held in solitary confinement since he was returned to a California federal prison where he is serving an 11-year sentence for his conviction in another case.
"He had not been in this situation until after he refused to testify in the John Swallow case," Kara Porter told U.S. District Judge Dee Benson. Johnson understands that failing to respond to the FEC's demands for evidence comes with consequences, Porter said, but he doesn't trust the government.
FEC attorney Kevin Hancock said Johnson should have to explain with specificity just why he fears the government if he plans to invoke the Fifth Amendment.
Porter disagreed and said she wasn't aware of any requirement for defendants to "identify their fear level." Johnson, she said, has good reason for his caution. Past promises of immunity offered to Johnson by federal prosecutors in exchange for information in other cases were ignored, triggering both the criminal case brought against him and the FEC civil action, she said.
Any missteps or statement he makes could be seen as inconsistent by government attorneys and grounds for new criminal charges.
"Mr. Johnson is understandably skeptical about the federal government's intentions toward him," Porter said.
Swallow's attorney Scott C. Williams told Benson he believes Johnson has cause for concern. The FEC case, he told Benson, is based largely on supposedly confidential statements Johnson was "incentivized" to make in 2013 interviews with state and federal agents investigating alleged acts of corruption by Swallow and his predecessor Mark Shurtleff.
Since then, Johnson has told the Swallow defense team that his statements to agents are "not reliable" and that if deposed or called to testify he would deny that Swallow had aided and abetted him in any election-fraud scheme.
Benson sided with the FEC's attorneys, however, ordering Porter to file a response to the government's motions for evidence that offers some explanation of Johnson's refusals.
Johnson and Swallow have denied involvement in any scheme or effort to illegally bundle campaign contributions.
FEC attorneys say the funds went to the campaigns of U.S. Sens. Mike Lee, R-Utah, and Harry Reid, D-Nev., as well as Shurtleff during the 2009-2010 election cycle.
Court papers say all the money came from Johnson, once a successful internet marketer, who was directed by Swallow to push the money through conduit contributors.
Under FEC rules, individual campaign contributions are capped at $2,400.
On Tuesday the FEC said it is preparing subpoenas for each of the individuals they believe were repaid by Johnson or his companies for making contributions.