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Swallow investigator: Scope of lost data is worst he's ever seen

Published November 6, 2013 11:02 am

House • Reich tells the panel he has never seen anything like that before.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated.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.

A lawyer for the Utah House committee investigating Republican Attorney General John Swallow laid out a "troubling" pattern of vanishing electronic data unlike anything he has seen.

"It is worrisome that the scope of records lost here touches literally every data device the attorney general has had, either in the attorney general's office or at home, since he started as chief deputy attorney general," said Steven Reich, special counsel to the bipartisan House committee.

Reich explained to committee members Tuesday how emails and calendar items appear to be missing along with data from Swallow's state-issued desktop and laptop computers, his handheld data device, his personal cellphone and his home computer.

"The scope of the data loss here is not anything I have seen before and something I find deeply worrisome," said Reich, who was on the defense team during President Bill Clinton's impeachment and led an investigation that resulted in the ouster of then-Connecticut Gov. John Rowland.

"I leave open the possibility that there are benign explanations for each of the things we're seeing, but, taken as a whole, taken across the board, what we have learned as part of our investigation should be very troubling to the committee."

Reich said three people have been identified who had access to Swallow's computers. Two of them have been interviewed and said they did not delete any data.

The committee has yet to interview Swallow.

Reich said he is "extremely confident" that federal investigators conducting a criminal probe into Swallow, who took office in January, and his Republican predecessor, Mark Shurtleff, were not aware of the missing documents.

The U.S. Department of Justice notified Swallow and Shurtleff in September that it was closing its investigation and would not file charges.

Reich, who was an associate deputy attorney general in the Justice Department until this spring, said it's impossible to say how the information would have influenced DOJ's decision-making.

A Justice Department spokesman declined to comment Tuesday on whether DOJ knew of the missing information or if it could prompt a reopening of its investigation.

House committee members echoed Reich's concern about the missing information and urged investigators to get to the bottom of the matter.

"I certainly have this feeling that we should be preserving these public records," said House Majority Leader Brad Dee, R-Ogden. "Wouldn't the people of Utah have that expectation, especially from the chief legal officer for the state?"

"When I listen to this, I get a little worked up," said Rep. Lynn Hemingway, D-Holladay. "Does he [Swallow] consider this committee a bridge club where we just get together and play cards?"

Investigators have copied computer hard drives and servers in the attorney general's office, but office lawyers have refused to let the committee have the copies, citing fears that they may contain health information that is private under federal law.

The committee has asked a 3rd District judge to order the release of the information, and the attorney general's office plans to support the order and seek an expedited hearing.

Once the committee has the copies, computer experts could determine what — if any — information is retrievable.

Swallow's attorney, Rod Snow, and the office's spokesman, Paul Murphy, have said the documents and emails from Swallow's computers vanished before the attorney general was under investigation — or at least before he knew he was under such scrutiny.

But Reich said Swallow should have known that he was required to keep the information for three reasons:

• Under state records law, it is a class B misdemeanor to destroy records.

• The office received a subpoena in February 2012 in the criminal case of St. George businessman Jeremy Johnson.

• In an April 2012 meeting with Johnson at a Krispy Kreme doughnut shop in Orem, Swallow indicated he thought he might be the target of a federal probe.

At that meeting, which Johnson secretly recorded, the men discussed an investigation by federal law officers and Swallow told Johnson, "I think I'm their target."

"Apparently, the attorney general's representatives believe, in the face of a very distinct pattern of missing information, this committee should throw up its hands and concede nothing can and should be done to get to the truth," Reich said. "If relevant records were intentionally deleted, the committee must examine if those deletions were part of an effort to hide the truth."

Swallow's representatives have said his emails from 2010 were lost when the state changed its email system in November 2012. Some 3,500 of Swallow's emails were recovered in January. It's unclear how many were lost.

"We have been told by witnesses in the state Department of Technology Services," Reich said, "they do not believe that data was lost during the migration, and they cannot identify another user statewide that suffered the kind of data loss the attorney general suffered."

Murphy said that is not the case. He said several employees in the attorney general's office, including himself, lost email during the migration and that it took a considerable time and effort to resolve the issues.

The retrieved Swallow emails were recovered from backup tapes kept in the office. Reich said those backup tapes no longer exist because supervisors in the office failed to issue a "litigation hold" on records — even though they knew investigations were going on.

Snow said that Swallow believed the information from his laptop and desktop computers had been transferred before the hard drives were erased and tried to recover it when he learned it was not.

Committee investigators are "jumping to conclusions and making assumptions that are without a fair and factual basis," Snow said. "They do not know what is missing. The A.G. does not know the substance of what might be missing, but is confident anything that may be missing is benign. As we've said before, we would welcome the recovery of any data."

In January, Swallow asked the U.S. attorney to investigate allegations by indicted businessman Jeremy Johnson that Swallow had helped arrange an attempt to bribe Senate Majority Leader Harry Reid, D-Nev., to help make a federal probe Johnson's I Works business disappear.

Reid denied any wrongdoing. Swallow, who also has denied wrongdoing, asked for the investigation to clear his name. A short time later, the U.S. attorney's office acknowledged there was an open investigation of Swallow.

In May, the lieutenant governor's office said it would investigate whether Swallow violated campaign law by failing to report outside consulting work. In July, the Justice Department served subpoenas on Swallow and the attorney general's office. The House also launched its investigation that same month.

Despite all of those instances, the attorney general's office did not direct staff to retain materials until Sept. 27.

"The failure to issue a document hold is hard to fathom," Reich said.

Murphy said that ­— between the normal records retention required of state agencies, documents maintained in response to various open-records requests and those provided to investigators — he believes that the pertinent information was kept. Murphy added that "thousands and thousands" of documents have been turned over to the House investigators in response to the subpoena.

The committee was also informed that a subpoena it issued to a Provo company, Softwise Inc., has thus far been ignored. The panel gave attorneys permission to take "any and all steps necessary" to enforce the subpoena, including seeking a court order.

Softwise develops computer programs for payday-lending companies. It was founded by the late Richard Rawle. Swallow did legal work and was a registered lobbyist for the company until he joined the attorney general's office in December 2009.

Swallow also put Johnson in contact with Rawle when Johnson needed help with the Federal Trade Commission investigation of I Works. Swallow continued to use his Softwise email account after joining the attorney general's office, and the committee wants copies of those records.

Reich said the committee "cannot sit idly by while an entity decides for itself it does not need to comply with a demand."

Calls to Softwise seeking comment Tuesday were not returned.

The committee is also seeking a transcript and exhibits from Swallow's two-day sworn testimony before a special counsel for the lieutenant governor's office, which is examining whether Swallow concealed business interests on his candidate-disclosure forms.

Since launching its investigation in August, the committee has spent nearly $700,000. Reich said investigators are sensitive to the growing price tag and noted that the issues springing from the missing documents make the probe "immeasurably harder and immeasurably costlier."

gehrke@sltrib.com

Twitter: @RobertGehrke —

Audio on the Web

To hear audio from Tuesday's House committee hearing, go to http://tinyurl.com/mz4sd2d.

To hear audio from Jeremy Johnson's secretly recorded doughnut shop meeting with John Swallow, go to this Salt Lake Tribune link: http://tinyurl.com/k688ask.