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House members cool to Swallow probe — even as it's warming up
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Some Utah House members are cooling to an investigation of Attorney General John Swallow after the Justice Department declined to prosecute him even as Swallow's top deputies express concerns about the burden the budding probe may impose on his staff.

At the very least, representatives who backed the investigation now want to see it wrapped up quickly, and one lawmaker, who voted against the probe, said it should immediately be put on hold.

"A lot of time, a lot of energy and a lot of expertise went into the Department of Justice decision not to carry forward with it, and for us to duplicate that now … is not prudent," said Rep. Eric Hutchings, R-Kearns. "I don't believe we're going to get any better results than they already did, at least on those topics."

Hutchings said he believes many of his House colleagues have soured on the investigation, as have his constituents, who told him at a recent town hall meeting they wanted the investigation stopped.

"One [comment] was that $3 million seems like an awfully expensive witch hunt," Hutchings said. That sentiment marked an about-face from his meeting with constituents two months ago, when there was overwhelming support for the inquiry

Hutchings said if there are specific issues the Justice Department didn't examine, the bipartisan House panel could investigate those and then end — although he acknowledges it's unclear what federal investigators did or did not find out. But right now, with an appeal to the public to bring forward tips or information about potential misconduct, Hutchings said the probe appears to be a fishing expedition.

"If we want to turn this into a purely political process and we want to air someone's dirty laundry," he said, "then we could go into every scrap and put it all out there."

Last week, the Justice Department's Public Integrity Section notified Swallow and his predecessor, Attorney General Mark Shurtleff, that it would not file charges. Two county attorneys are continuing to investigate with assistance from the FBI.

Rep. Ken Ivory, R-West Jordan, has said he would like the probe put on hold while legislators get a legal opinion on the House's authority to conduct the investigation and the body better defines the scope of the inquiry.

On Thursday, FBI Special Agent Todd Palmer confirmed the FBI was still assisting with the county attorneys' probe — involvement that Swallow's attorney, Rod Snow, had said he would find unusual because the FBI isn't typically "farmed out."

House Speaker Becky Lockhart, R-Provo, has said she expects the House investigation to continue.

"It's interesting information," she said of the DOJ decision. "It doesn't change the fact the House committee was set up to find facts, so we'll continue to do that."

Senate President Wayne Niederhauser, R-Sandy, said the public needs to have answers, and the Justice Department's action doesn't provide them.

"We need to have some clarity, so I support the House moving forward, because the DOJ didn't leave us any transparency," Niederhauser said. "We've been kind of left in the lurch, and the House needs to move forward until there's been clarity and has done their duty to their public. . We owe it to the public. That's our responsibility."

One of those lukewarm to the investigation from the outset is Rep. Dana Layton, R-Orem, who said she still wishes lawmakers had taken more time and not rushed into the inquiry.

"The way I read the Constitution of Utah," she said, "unless something qualifies as a high crime or misdemeanor or malfeasance in office, I'm not sure all this talk of the public trust plays into it legally."

For now, lawmakers are committed to an investigation that is expected to cost as much as $3 million, with an uncertain outcome.

"There are so many needs the state has," Layton said. "I'd rather see it go into education or when you think how much $3 million could do in health and human services or any number of good causes, it's hard to think it's worth it."

If there were a way to do it, Layton said she'd like to see the probe brought to a quick end.

Rep. Dixon Pitcher, R-Ogden, said that the DOJ's decision doesn't mean there was no wrongdoing by the Republican attorney general, so it makes sense to proceed, adding that it should be done quickly.

"Nobody wants a long-term thing," he said. "Go to the places that need to be investigated, talk to them and find out right from the outset through testimony if there are things that are substantive and, if they aren't, then fold this thing up and let's move on."

Rep. Joel Briscoe, D-Salt Lake City, said enough uncertainty remains to justify the House investigation.

"The Salt Lake and Davis county attorneys' investigation is continuing. My understanding is the FBI is continuing to investigate. Just because a federal prosecutor elects not to prosecute doesn't mean a person isn't guilty," Briscoe said. "It doesn't shut all the doors for me."

Rep. Derek Brown, R-Cottonwood Heights, said the responsibilities of the committee — with its five Republicans and four Democrats — are different than those of the federal prosecutors.

"We only know that the federal authorities don't have enough information to indict, but what they are looking at differs qualitatively from the committee investigation," Brown said. "So, at this point, I don't believe for that reason that the committee needs to shut its doors."

Rep. Jake Anderegg, R-Lehi, said that in the conversations he's had with House colleagues, those who "were against it before are emboldened. Those who were for it before are, 'Well, are we wasting taxpayer money?' "

"If we get six months, 12 months down the road and spend $2 to $3 million and say, 'Yeah, he was stupid, but we're not going to impeach him,' then that's going to be a black eye," Anderegg said. "I would be in favor of it continuing, but I'm also very cognizant of the fact we're spending real money on something that may not even be there."

Legislators aren't the only ones questioning the House probe.

In a pair of meetings — one Friday with Senate staff and another Monday with House staff and legislative general counsel John Fellows — Brian Tarbet, general counsel to the attorney general, and one of Swallow's top deputies, Wade Faraway, voiced their concerns about the scope of the House probe and the disruption it may cause.

"There's a lot of people on that [investigative] team so the question is: 'Why do you need that many people? What's going to be the scope of the investigation? Are we to expect 500 subpoenas?' " Chief Deputy Attorney General Kirk Torgensen said of the meeting. "So a lot of this is just: How is the attorney general's office going to respond appropriately to whatever is coming our way."

Joe Pyrah, chief deputy of the House, said the meeting wasn't a challenge to the committee's authority, but a discussion of how the investigators planned to interact with the office.

"We just assured them that the committee is limited in scope by the resolution. They're limited in scope to issues related to Attorney General Swallow, and we're not investigating the attorney general's office," Pyrah said. "I think there's a better understanding and I think the conversation about scope was healthy for them and it was healthy for us."

Torgensen said there were no firm answers to what the attorney general's office should brace for, but he anticipates future discussions.

"A lot of that takes a lot of time. So are we all of a sudden going to swamp 30 people in the attorney general's office responding to this?" Torgensen said. "I think there's a fair point that the state's business needs to get done."

gehrke@sltrib.com Twitter: @RobertGehrke

Scandal • Attorney general's top aides worry about the investigation infringing on the staff's work.
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