The U.S. Attorney's Office for Utah is asking a federal judge to gag indicted St. George businessman Jeremy Johnson, accusing him of engaging in a smear campaign against prosecutors and investigators that threatens to disrupt the judicial process.
Johnson, who has been waging a high-profile media assault to assert his innocence and accuse prosecutors of misconduct, fired back Tuesday.
"I find it ironic that the government, with their endless resources and teams of attorneys, are afraid of what I might say to the media or post on the Internet," Johnson said in an statement. "... In an act of desperation they want to deprive me now of my First Amendment right to free speech."
Johnson also has made headlines of late by accusing new Utah Attorney General John Swallow of being part of a bribery scheme to help fend off a Federal Trade Commission investigation of Johnson's I Works company.
The motion, filed late Monday, says Johnson is targeting, in particular, Assistant U.S. Attorney Brent Ward, the lead prosecutor in the criminal case against him, with a campaign that alleges Ward threatened to indict his family if Johnson did not plead guilty.
U.S. Attorney for Utah David Barlow has said no threats were made, and the government argues such accusations could influence the outcome of a trial.
Federal Magistrate Judge Paul Warner has scheduled a hearing for Friday to listen to arguments on the motion for a gag order.
Media attorney Jeff Hunt said such a motion is unusual, particularly for Utah.
"I can't remember a time recently where an order of this nature, that the relief sought by prosecutors here, has been granted," said Hunt, adding, however, that the circumstances in the Johnson case are different than most others.
"It's unusual," Hunt said, "but the facts of this case are unusual."
The government's motion cites a number of what it says are false statements from Johnson posted on websites, in videos or in comments to the news media. Those include:
• Johnson's EvilFTC.com website in which he posts videos, articles and blogs about the lawsuit he and his I Works company face in federal court in Las Vegas that accuses him of illegal operations. The website contains links with, according to the motion, "numerous false (and possibly defamatory) statements" about Ward. It also accuses the FTC of witness tampering.
• Statements to the news media, including The Salt Lake Tribune, in which Johnson said he had planned to plead guilty in his criminal case only because Ward was threatening to indict his family if he did not.
• His "Life of Jeremy Johnson" blog in which he repeats accusations that Ward and Internal Revenue Service Special Agent Jamie Hipwell, the lead investigator in the criminal case, threatened his family.
• An "Unofficial Fan Page United States Attorney for the District of Utah," a Facebook link which appears to be connected to Johnson in which items are posted about his case. The defendant's family, friends and colleagues add frequent comments disparaging Ward and others. Those who post are potential witnesses, the motion says.
• Videos posted on YouTube and elsewhere that allege, among other things, that "witnesses [were] pressured to lie for government."
The U.S. Attorney's Office for Utah declined to comment, but in its motion said that "while defendant has the right to his day in court, he is not entitled to litigate his case in the media (print, broadcast or social) by means of false accusation and innuendo."
Johnson, in his statement, defended his campaign, saying he feared what Ward might do to his family.
"I feel that the only way to stop him is to expose the truth," Johnson said. "It is my hope that the court will allow me to keep my First Amendment right to speak the truth about the government's conduct in this case."
Hunt said the motion does raise First Amendment questions. But, he said, courts have recognized limits to free-speech rights of attorneys and other parties in certain circumstances.
"So you don't have an absolute unlimited right," Hunt added, "to say whatever you want in a criminal prosecution."
But he noted courts have other tools to weed out potential jurors who may have been exposed to information that could hinder their impartiality, including jury questionnaires and lawyers' ability to dismiss potential jurors they don't want on the panel.
The FTC sued Johnson in December 2010, alleging fraudulent advertising of products to consumers who were inadequately informed that they would be charged high monthly fees when they bought initial products for a small price. The agency also contends Johnson created dozens of false-front companies to continue operations after Visa and MasterCard fined him and threatened to cut off credit and debit card transactions.
In June 2011, Johnson was indicted on a felony wire-fraud charge stemming from the FTC case.
Johnson's Internet campaign and comments to news reporters have been aimed at promoting his contention that I Works operated legally and that the FTC built its case on false information, including allegations of witness tampering and inducing false evidence.
He also accuses the FTC of pressuring the Utah Attorney General's Office to indict him even though prosecutors and investigators did not interview a single witness.
On Jan. 11, Johnson was to plead guilty to two other charges, but the proceedings stalled when he sought to have the government publicly agree not to prosecute a list of people, including family members and new Utah Attorney General John Swallow.
Johnson has alleged that Swallow helped broker a bribe to enlist Senate Majority Leader Harry Reid in an effort to derail the FTC investigation.
Swallow strongly denies any such scheme, saying he merely helped Johnson hire lobbyists to work on his case.
Johnson has said he did not want Swallow to suffer the same fate he has at the hands of the government and, therefore, sought to protect him from prosecution, something Swallow says he did not seek and did not want.
Reid's office, too, has denied that the powerful Nevada Democrat had part in any such deals.
The U.S. Attorney's Office has confirmed that Swallow is the subject of a federal investigation.
"I find it ironic that the government, with their endless resources and teams of attorneys, are afraid of what I might say to the media or post on the Internet.
"There are certain guaranteed rights that we all have as Americans. Among those are:
"The right to our property, Fifth Amendment;
"The right to a trial by an impartial jury, Sixth and Seventh amendments;
"The right to reasonable bail, Eighth Amendment;
"The right to speedy trial, Sixth Amendment;
"The right to due process, Fifth Amendment.
"Over the last two years, certain actors in the government have engaged in a systematic effort to convince the public that I should not be afforded any of these rights. They have issued numerous false press releases designed to generate negative media stories to support their allegations. They have also gone on national television and bragged about having an "out in this case" because they were able to trick a federal judge into letting them seize and sell my assets and deny me an attorney.
"As Americans, we are sensitive of these issues and most people believe that everyone is entitled to these rights even if the government alleges you did something wrong. The media has been an important tool for these government actors to keep public opinion on their side throughout this. Now it seems these people do not like their own medicine. In an act of desperation they want to deprive me now of my First Amendment right to free speech. They are desperate to keep the public from knowing the facts about our case, including the falsified evidence they used to seize my assets, deny me an attorney, etc. [Prosecutor] Brent Ward in particular is desperate to make sure that the following facts are not allowed to be published:
"Brent Ward threaten[ed] to arrest my friends and family if I would not tell the judge I was guilty.
"Brent Ward agreed not to prosecute any of the people on his hit list in exchange for my guilty plea.
"Brent Ward planned to run for AG [attorney general] but decided to endorse his friend John Swallow instead.
"Brent Ward and John Swallow both knew John would be given immunity as part of my plea deal.
"Brent Ward has threatened numerous witnesses in this case to give false testimony.
"Brent Ward arrested me before he did any investigation or spoke to even one alleged victim.
"There are multiple criminal investigations going on against Brent Ward and others related to their tactics of using threats and extortion to get what they want in this case.
"I am only speaking out now because Brent Ward has a proverbial loaded gun pointed at the heads of my friends and family. They have committed no crime. They are willing to come in without the benefit of an attorney and prove to [U.S. Attorney for Utah] David Barlow they have done no wrong. My greatest fear is that Brent Ward will be allowed to do the same thing to the people I care about that he has done to me. I feel that the only way to stop him is to expose the truth. It is my hope that the court will allow me to keep my First Amendment right to speak the truth about the government's conduct in this case. I only want to be treated fairly and impartially and to be granted the same rights every citizen is guaranteed under the Constitution."