Perhaps it’s what John Swallow doesn’t say that is most vexing in his meeting with Jeremy Johnson last year at an Orem doughnut shop.
Yes, Swallow, then Utah’s chief deputy attorney general, can be heard conceding he may be the target, or the "big fish," in a federal investigation. Sure, he wonders aloud about whether he accepted fees from a company Johnson says was part of a scheme to bribe a powerful U.S. senator. Indeed, he voices fears that he could lose his law license and end up a "felon."
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But even if Swallow, now Utah’s attorney general, can explain those comments, what he doesn’t say could be just as troubling. For instance, Swallow does not:
• Balk verbally at Johnson’s suggestion that he buy a Wal-Mart cellphone whose calls cannot be traced.
• Speak up forcefully when Johnson suggests that a third party destroy emails that could become evidence in a federal probe.
• Tell Johnson, who was secretly recording the conversation, that the plot contained in the indicted businessman’s description of an alleged earlier payoff to the same U.S. senator, Senate Majority Leader Harry Reid, may have broken the law. Nor does Swallow warn Johnson that he, as a leading law enforcement officer, might be obligated to report such an illegal activity.
"I have said from the beginning that there are things that in hindsight I would have done differently," Swallow reaffirmed in a statement released Tuesday. "To ensure this never happens to me or anyone else, I have also instituted policies in the Attorney General’s Office to make sure the highest standards are followed."
The transcript of the April 30, 2012, Swallow-Johnson meeting at an Orem Krispy Kreme — now available at sltrib.com along with a previously posted audio file — raises questions big and small. Swallow and his allies see vindication in the recording. Others see cause for concern for Utah’s top cop.
"Transcripts sometimes are very tough because we can glean from them things that were not intended or communications that were not there," says Brett Tolman, a former U.S. attorney for Utah who is now in private practice. "But transcripts also are unique because they can give you information, like in this instance, when an individual doesn’t know they are being recorded."
Emily Chiang, an associate professor of law at the University of Utah who teaches ethics, says an overarching question — beyond any exchanges in the transcript — is why a top law enforcement official would meet with someone under indictment.
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"There are two general concerns: one about the appearance of impropriety and one about actual impropriety," she writes in an email. "As a public official and prosecutor, Swallow would be obliged to avoid even the former."
Paul Cassell, another University of Utah law professor and a former federal judge, says he doesn’t see in the transcript possible criminal actions by Swallow. But Tolman finds troubling aspects — from possible crimes to ethical missteps — that could draw investigators’ attention.
Here are some excerpts:
Swallow: I wish you could just (inaudible).
Johnson: Well, that’s why go get a friggin’ Walmart phone.
Swallow: I know.
Earlier in the conversation, Johnson had urged Swallow to get a cellphone from Walmart because, he said, those calls could not be traced. He repeats that advice toward the end of their meeting as well.
Cassell sees no criminal intent here on Swallow’s part.
"My sense of the transcript," Cassell says, "is that Swallow just ignores this suggestion.
Besides, Cassell adds, "buying a nontraceable phone is not a crime — just as someone keeping their voice down so the cops won’t hear them is not a crime."
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