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What's next in the Swallow saga?

Published December 2, 2013 10:34 am

Politics • Will he be charged? Will Shurtleff be charged? Who else might go down? Remaining investigations will tell.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated.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.

On Tuesday, John Swallow will return to private life, but he will remain in the public spotlight.

Still facing several investigations and a slew of allegations, Utah's departing attorney general can count on making headlines for months to come.

Here is a look at what's ahead for Swallow and the still-evolving scandal that has surrounded him since four days after he took office in January.

What's next for Swallow?

The first-term Republican attorney general had a vacation planned for last week and will leave office Tuesday at 12:01 a.m. He told Fox 13 News that he recognizes his image may be tarnished, and he isn't sure who might hire him. But, at age 51, he believes things will work out for him. In the long run, by serving four years in state government (more than three as chief deputy attorney general and nearly one as the state's top cop), Swallow, who has proclaimed his innocence throughout the ordeal, will receive a $12,000-a-year pension beginning at age 65, although he could lose that if he is convicted criminally of election law violations. Utah law could also require him to repay his salary since he took office in January if he is convicted.

What happens next with the report from the lieutenant governor's office?

The report from a special counsel for the lieutenant governor found that Swallow violated a series of state election laws by intentionally withholding income from and involvement in five businesses. Swallow resigned a day before the report came out. Lt. Gov. Spencer Cox, however, decided Wednesday that, because the only action his office could take would be to go to court to have Swallow's election voided, there was nothing further his office could do. Under state law, the Alliance for a Better Utah, the progressive group that filed the complaint against Swallow with the lieutenant governor's office, could still go to court to seek to have Swallow's November 2012 election erased.

What's next for the investigation by the Utah House Special Investigative Committee?

It's a wrap. With Swallow stepping down, the only punishment the House could dish out — impeachment — is off the table. While the Legislature's attorney believes the fact-finding committee has the legal authority to continue its investigation, the $1.5 million price tag so far and growing opposition in the House made it politically untenable. Rep. Jim Dunnigan, R-Taylorsville, the committee's chairman, said Wednesday the bipartisan panel will meet Dec. 7 to discuss how to wind down the inquiry and prepare a public report on what investigators found. Dunnigan has acknowledged that some matters under investigation may be left "incomplete." Investigators have interviewed more than 140 witnesses, served 15 subpoenas and received thousands of documents, but they also have been working to retrieve a significant amount of electronic data missing from Swallow's email account, office laptop and desktop computers, home computer and cellphone.

What's the status of the investigation by the FBI and county attorneys?

Salt Lake County District Attorney Sim Gill, a Democrat, and Davis County Attorney Troy Rawlings, a Republican, in conjunction with the FBI, are continuing a long-running investigation into issues surrounding Swallow, his GOP predecessor, Mark Shurtleff, and others. In recent weeks, state investigators have sent a slew of sweeping records requests to the attorney general's office on a broad range of issues. The county prosecutors also are reviewing the findings from the lieutenant governor's special counsel. In addition, they could tap information gathered by the special House committee.

Could Swallow still be charged criminally?

Yes. Although the U.S. Department of Justice declined to prosecute him, Swallow still could face criminal charges from the election-law violations that the lieutenant governor's report found. Violations of the election code are class B misdemeanors under Utah law. There are also criminal penalties for providing false information on a government document. Gill and Rawlings have said they will take the lieutenant governor's findings into consideration as part of their investigation. In addition, Gill and Rawlings sent a letter in July to other county attorneys, seeking to assemble prosecutors who were political supporters of Swallow to review information in advance of potential criminal charges. In the letter, Rawlings said there are 10 sections of the state criminal code that may be at issue, although he didn't specify what they were.

Is former Attorney General Mark Shurtleff off the hook?

Not at all. Shurtleff, whom the Department of Justice also declined to prosecute, remains part of the county attorneys' investigation and could face criminal charges, although it is not known what they might be. Because he is no longer in office, he was never part of the House investigation. Shurtleff has hired prominent Utah defense attorney Max Wheeler to represent him. In the meantime, he has opened his own law firm and is spending time advocating for immigration reform as well.

Could anyone else be charged?

Yes. Shurtleff's top deputies — without Shurtleff's knowledge — asked a state investigator last year to begin looking into whether the activities of one of Shurtleff's friends, Tim Lawson, broke the law. Lawson, often described as a political fixer, popped up in numerous cases and dealings with the attorney general's office. The investigator and deputies in the A.G.'s office met with Rawlings in February to discuss charging Lawson. Rawlings also raised questions about Shurtleff's possible culpability in the activities and cited numerous potential crimes. Gill and Rawlings are also seeking records related to Jason Powers, a campaign consultant and fundraiser for both Shurtleff and Swallow.

How will Swallow's replacement be chosen?

Members of the Republican State Central Committee are scheduled to meet Dec. 14 to whittle a field of contenders to replace Swallow to three names. Those names will be sent to Gov. Gary Herbert, who will choose one of the three. Whoever is selected will serve until an attorney general is elected in November 2014 and takes office in January 2015. Some have suggested — and Democrats have endorsed — that a caretaker attorney general replace Swallow next month and serve only until January 2015, letting others seek the office in the 2014 election. Either way, the winner of that election would have to run for re-election in 2016 if he or she hopes to keep the job come 2017.

Who might replace Swallow?

So far, four Republican candidates have filed to run for the open seat. They are:

• Sean Reyes, an attorney whom Swallow beat in a Republican primary last year.

• Bret Rawson, an attorney for the Fraternal Order of Police and reserve police officer who is representing West Valley City police officer Kevin Salmon in the investigation into the shooting of Danielle Willard. He is also on the legal team for Marc Sessions Jenson, who has accused Swallow and Shurtleff of shaking him down for trips and gifts.

• Brent Ward, who is currently an assistant U.S. attorney prosecuting the criminal case against Jeremy Johnson, the I Works founder charged with 86 criminal counts related to that business. Ward made his name trying to root out pornography as a U.S. attorney and with the Justice Department.

• Michael Wilkins, a former Utah Supreme Court justice, who has said he would serve until a new attorney general is elected.

In addition, state Rep. Derek Brown, R-Cottonwood Heights, has said he is considering joining the race. He, too, said he would serve as a caretaker and not seek election in 2014. Rep. Dan McCay, R-Riverton, and former state Rep. Morgan Philpot are also mentioned as possible candidates.

Until a replacement is chosen, retired Gen. Brian Tarbet, who served as general counsel for the attorney general, will run the office.

Jeremy Johnson has been awfully quiet. What's he up to?

Johnson remains under a court-imposed gag order stemming from his criminal case. He and four other former I Works executives face 86 criminal counts in a federal case in Salt Lake City accusing them of bilking tens of thousands of customers out of millions of dollars. The next hearing is set for January. Johnson also faces a civil complaint in Las Vegas from the Federal Trade Commission. The FTC asked a judge last week to forgo further proceedings in the case and rule that, based on "voluminous irrefutable evidence," Johnson and his I Works company illegally tricked consumers into ordering online products such as how to receive government grants for personal expenses. The FTC is seeking the return of $281 million. Johnson has three weeks to respond.

Weren't there complaints to the Utah State Bar? What happened with those?

Who knows? The state bar's process for investigative complaints against lawyers is shrouded in secrecy. At least two complaints were filed, one by the Alliance for a Better Utah, the other by Traci Gundersen, the former head of the state's Division of Consumer Protection. The bar dismissed the alliance's complaint in October, citing a lack of evidence provided to support the claims. The Gundersen complaint, which alleges Swallow had improper negotiations with a target of an investigation — who had suggested an interest in donating to his campaign — apparently is still pending.

When will this whole mess be finished?

Months. For instance, Dunnigan said that compiling the House report will be a "laborious" process. It is likely weeks away. Part of that report will recommend changes to state election laws. Those proposals will be debated in the legislative session that runs through March. If criminal charges come, that process could take months. And the legal proceedings against Johnson and others have been dragging on for years.

gehrke@sltrib.comTwitter: @RobertGehrke

Tom Harvey contributed to this story.