Shurtleff, Swallow and now Reyes. Why so much Utah A.G. turmoil? Is there a solution?

Ideas for fixing Utah’s attorney general woes include better oversight, better pay and giving the governor the power to hire and fire the A.G.

(Bethany Baker | The Salt Lake Tribune) Utah Attorney General Sean Reyes speaks as he stands next to Gov. Spencer Cox during a news conference at the Utah Capitol in Salt Lake City on Tuesday, Oct. 10, 2023, after the announcement that Utah had filed a lawsuit against TikTok.

In nearly every respect, the headline-dominating saga involving former Attorneys General Mark Shurtleff and John Swallow, now nearly a decade in the past, remains the most sweeping political scandal in Utah history.

There were gold coins, private jets, country club golf courses, burner phones, and missing and erased computers. It featured a U.S. senator, poker barons, payday lenders and alleged scamsters. There were hundreds of thousands of dollars changing hands, recorded meetings in a doughnut shop and favors purportedly done for friends and political allies.

The episode witnessed the end of the political careers of two statewide elected officials, the ascent of another, a series of unprecedented investigations and a slew of felony charges — all of which cost taxpayers millions of dollars. In the end, no elected officials went to jail.

Coming into the Utah attorney general’s office in the wake of that scandal, Sean Reyes vowed to be the new sheriff in town — to clean up the mess, instill a culture of ethics and integrity and swear off donations from problematic contributors upon which Swallow and Shurtleff had relied.

Ten years later, Reyes himself has become the third consecutive Utah attorney general whose conduct has come under intense scrutiny — albeit for significantly different reasons than his predecessors.

The latest onslaught has triggered audits, investigations and discussions of whether systematic changes are needed to avoid problems in the future — including a fresh look at limits on campaign finances, more robust oversight, and potentially having Utah’s attorney general appointed rather than elected.

(Leah Hogsten | The Salt Lake Tribune) Utah Attorney General Sean Reyes addresses delegates at the Utah Republican Party 2023 Organizing Convention at Utah Valley University's UCCU Center on Saturday, April 22, 2023.

Why Reyes is under the microscope

Most of the focus on Reyes has centered on his long-standing friendship with Tim Ballard, the founder of the anti-trafficking nonprofit Operation Underground Railroad, who is now accused of sexual misconduct and assault in civil lawsuits filed by seven women.

Reyes helped Ballard launch OUR, raised money for the organization, participated in foreign missions and even was tagged as an associate producer for the film “Sound of Freedom,” loosely based on Ballard’s exploits. Early on, Reyes dismissed Ballard’s critics as “haters,” but last month, while announcing that he would not seek reelection this year, the attorney general said he now believes the accusers and that his office is launching a criminal investigation of Ballard and OUR.

Additional reporting has highlighted at least 30 trips Reyes took, many to luxury resorts in Europe, Mexico and the United States, paid for with campaign donations, as well as partnerships his nonprofit Liberate All Value All Foundation claimed to have with various charities — despite most of them never having received any support from Reyes’ LAVA Foundation.

In November, legislative leaders launched a sweeping audit of the management, decision-making and travel policy in the attorney general’s office that is due out later this year. And lawyers for the state are in court arguing that his official calendar should not be made public under Utah’s open records law.

The recurring turmoil has lawmakers hoping that the audit points to possible fixes to prevent the stain of scandal from reinfecting the Utah attorney general’s office.

“We obviously have got something going on inside the A.G.’s office that continues to invite corruption,” Democratic Rep. Andrew Stoddard, D-Sandy, said recently, “and if we don’t figure out what is going on and what’s causing that, we’re just going to keep getting the same result.”

Trent Nelson | The Salt Lake Tribune Then-Attorney General Mark Shurtleff, left, and then-candidate John Swallow share a laugh on the night Swallow secured the Republican nomination to run for attorney general.

A ‘for sale’ sign on the office door

The scandal that engulfed Shurtleff and Swallow was years in the making. It began to unravel days after Shurtleff handed over the reins to Swallow, his hand-picked successor. In January 2013, The Salt Lake Tribune reported that Swallow had huddled the previous spring at an Orem Krispy Kreme shop with Jeremy Johnson, who was under a federal indictment at the time.

Johnson and a business partner had paid Swallow $250,000 in an effort to persuade then-U.S. Senate Majority Leader Harry Reid, D-Nev., to intervene and stave off the federal charges. Johnson characterized the money as a payoff; Swallow insisted it was for lobbying. Either way, it hadn’t worked, and now Johnson and a partner wanted the money back.

Johnson had secretly taped the meeting as the two men talked about money that had changed hands, alleged payments to Reid to back the online poker industry, Swallow wondering if he was under investigation, and Johnson advising him to buy a burner phone — which he later did.

Other questions soon arose.

Evidence emerged that Swallow and Shurtleff had taken gifts from Johnson — use of his private jet, stays in Johnson’s lavish St. George homes and Swallow’s use of Johnson’s Lake Powell houseboat, complete with a helipad — in exchange for their support in receiving a legal opinion from the attorney general’s office that would enable Johnson and his partners to process online poker transactions, a potentially lucrative business.

Swallow and Shurtleff were also accused by a then-jailed businessman, Marc Sessions Jenson, of pressuring him into providing them ritzy stays at his resort home in Newport Beach, Calif., and other gifts at a time the businessman was under the supervision of the attorney general’s office pursuant to a plea deal that Shurtleff had allegedly negotiated.

As the revelations rolled out, a series of investigations came to life. The lieutenant governor’s office hired a law firm to investigate potential campaign finance violations. The Legislature — as it has done with Reyes — initiated a pair of audits. The FBI, along with prosecutors in Davis and Salt Lake counties, ramped up criminal inquiries.

In the Utah House, Republicans debated whether to launch an impeachment inquiry or whether to wait and see what federal agents uncovered.

Spencer Cox, then a freshman representative just a few months in office, spoke passionately, assailing his colleagues resisting a House investigation of “shirking” their responsibility. The House should fulfill its constitutional duty, he prodded, not rely on the loathed federal government.

“I’m embarrassed by members of our own body who rail against the federal government and then plead for us to wait for the now suddenly brilliant Federal Bureau of Investigation to do our constitutional responsibility,” Cox chided. “I’ll be damned if I’m going to let them restore the public trust.”

A few months later, then-Gov. Gary Herbert chose Cox to be his new lieutenant governor, positioning him to be the state’s next governor.

The House ended up taking a middle track, creating a House Special Investigative Committee and hiring an outside counsel and investigators to delve into the allegations.

Well before the committee finished its work, though, Swallow was gone, resigning on the eve of the release of the lieutenant governor’s investigation, which cited numerous violations of campaign finance law.

(Trent Nelson | The Salt Lake Tribune) Special counsels Steve Ross and Steve Reich wait for the House Special Investigative Committee to begin its meeting looking into the allegations against then-Attorney General John Swallow on Nov. 5, 2013, at the Capitol in Salt Lake City.

Reyes takes over; House issues findings

On Dec. 30, 2013, Reyes was sworn in as the new attorney general, pledging to restore integrity to the office.

“This is not going to happen in one month or even one year,” he said at the time. “Some of the cultural changes may take several years. But make no mistake: It will begin today.”

The following March, the House committee presented its findings on Reyes’ predecessors: “The committee concluded that Mr. Swallow hung a veritable ‘for sale’ sign on the office door that invited moneyed interests to seek special treatment and favors.”

The committee’s work verified that Swallow had worked to help Johnson’s poker interests while receiving gifts and that Swallow had secretly promised to support the payday lending industry in exchange for campaign donations and created a network of entities to hide the money.

It also detailed how Shurtleff had worked with Swallow to negotiate a deal with Bank of America to avoid the bank foreclosing on the home of a Swallow campaign donor. Shurtleff, on his last days in office, ignored his staff attorneys and dismissed a lawsuit brought against Bank of America on behalf of Utah homeowners, then landed a job with the law firm representing the bank.

The House panel also found that Swallow had fabricated documents in an attempt to create a legitimate paper trail for certain transactions and had lost a suspicious amount of data — deleting emails and calendar entries, wiping computer hard drives, and losing or damaging a series of cellphones, iPads and his home computer.

Four months later, both Shurtleff and Swallow were charged with a host of felonies, surrendered to authorities and were booked, fingerprinted and released. Each faced up to 30 years in prison if convicted.

They weren’t.

Davis County Attorney Troy Rawlings dropped the case against Shurtleff, blaming the refusal of federal investigators to provide him with evidence in its possession that ultimately would have led to the case being thrown out had he gone forward.

(Rick Bowmer | AP) In this July 30, 2014, photo, former Utah Attorney General John Swallow arrives at court in Salt Lake City.

Swallow went to trial and was acquitted by a jury.

A day after the verdict, Swallow told The Tribune he had been “suckered” by Johnson and that “I honestly feel exonerated by the trial. … I’ve never intentionally done something that was illegal or unethical.”

The state ended up paying $1.5 million for Swallow’s attorney fees and another $600,000 for Shurtleff’s. Swallow challenged Reyes for the Republican nomination in 2020, partly criticizing Reyes’ focus on trafficking overseas as a distraction from his duties as attorney general. Swallow lost.

What reforms may be needed?

Now Reyes finds himself facing a measure of the scrutiny his predecessors endured — minus allegations of criminal misconduct — and is stepping down after his current term expires in January 2025.

Going forward, though, a big question has become whether structural changes are needed to avoid another repeat of the problems in the future.

Chris Toth, who spent 18 years on the staff of the National Association of Attorneys General, said it begins with the individual — someone who is committed to public service, adheres to strict ethical standards and instills that culture throughout the office.

That has grown more challenging. As attorneys general have become more powerful and the amount of money spent trying to influence them has mushroomed, Toth said that requires candidates to rigorously vet who is giving them money.

“Generally, if you’re getting involved in lobbying an A.G.,” he said, “there is bad conduct that has occurred or bad conduct that is percolating somewhere.”

In addition, groups like the Republican Attorneys General Association, its Democratic counterpart, and the Attorney General Alliance have, in recent decades, made it easier for entities that want to spend millions to influence the attorneys general, he said. Often that money is not reported.

Reyes currently chairs RAGA, which is also by far his biggest campaign donor — funneling nearly $450,000 to his campaign since 2014. And last year, the government of Qatar paid to send Reyes to the 2022 World Cup with funds channeled through AGA.

The Swallow investigative committee compiled a series of “suggestions” of policies to address issues arising from that scandal — including a series of changes to campaign finance laws.

Having a law enforcement official raising large amounts of money creates the potential for conflicts of interest, and Sen. Mike McKell, R-Spanish Fork, who served on the Swallow investigative panel, said it’s worth reexamining those rules.

One already enacted post-Swallow reform was the creation of an ethics commission for executive offices — governor, attorney general, treasurer and auditor. The Tribune reported last year, however, that the five-member commission had seen long vacancies in several seats, handled its last complaint in 2021, and had an out-of-order hotline.

Jeff Merchant, executive director of the progressive group Alliance for a Better Utah, said he would like to see an inspector general established with investigative authority over those offices.

“If we just have the Legislature doing it, I’m sorry, they have an inherent conflict of interest. When it’s Republicans from the top down, there’s some incentive not to rat each other out,” he said. “We need to have somebody who is somewhat independent looking over what it is that these people who have immense amounts of power are doing [and] keeping them in check.”

(Leah Hogsten | The Salt Lake Tribune) Sen. Michael McKell, R-Spanish Fork, talks with Senate Minority Leader Luz Escamilla, D-Salt Lake City in February 2023.

Which is best: elected or appointed?

The proposed change that has received the most attention is McKell’s push to change the Utah Constitution to give the governor the authority to hire — and fire — the attorney general. It’s a power given to the nation’s president but a rarity at the state level.

Forty-three states elect their attorneys general; five have the office appointed by the governor and confirmed by the Legislature. In Maine, the attorney general is chosen by the Legislature, and, in Tennessee, the attorney general is appointed by the state’s Supreme Court and confirmed by the Legislature.

McKell is not the first to explore the appointment route. In the mid-1990s, Utah’s Constitutional Revision Commission recommended appointing the attorney general, but many saw the proposal as politically motivated, since at the time Democrat Jan Graham held the office.

In 2011, then-Sen. Steve Urquhart, R-St. George, floated the idea, arguing it would attract better candidates and alleviate conflicts that arise when they solicit money from people they may have to investigate or prosecute. Two years later, amid the Swallow-Shurtleff uproar, Sen. Todd Weiler, R-Woods Cross, revived the proposal, but it has never gained much traction.

Gov. Cox, who is McKell’s brother-in-law, has said he believes appointing an attorney general is the best option.

Reyes has argued it would be a mistake to change the selection process because “appointed A.G.s can’t exercise independent discretion or decision-making, and they become just an extension of the governor or whoever appoints them.”

While some states have moved from an appointed attorney general to an elected one, no state has gone in the other direction, according to a 2014 Harvard Law Review article.

Former state Rep. Lowry Snow, who also served as president of the Utah Bar, said it’s unlikely that voters would support a constitutional amendment that takes away their ability to elect an attorney general.

“I don’t want to say we’re stuck with — that’s the wrong word — but I don’t see Utah changing its system of how the attorney general is selected,” he said. “So what can we do?”

Snow said the Legislature could beef up its oversight of the office, with lawmakers taking a deep dive during the summer into how the office is run and requiring the attorney general to provide a report to — and answer questions from — legislators.

“What I’m really talking about here is transparency and accountability,” Snow said. “I think with our current attorney general and to a large extent his predecessors whom we’ve had issues with, we haven’t had the degree of transparency we should have for the public benefit.”

For his part, Stoddard is exploring the idea of prohibiting the attorney general from doing legal work outside the office — a limitation that is in place for county attorneys but not at the state level.

McKell and Stoddard also say the state needs to explore upping the attorney general’s salary. Currently, Utah’s attorney general is paid $173,755 a year. That is well above the average Utah income and the $141,825 average salary for attorneys general nationally, according to a report earlier this year by a Utah legislative commission that reviews salaries, but it remains significantly lower than comparable private-sector salaries, especially for the head of a large firm.

“An entry-level associate in downtown Salt Lake makes about the same salary as the sitting attorney general,” said McKell, who is a lawyer. “It opens up the attorney general to these side hustles as we’ve seen for three in a row. And it just decreases the quality of the candidates we get.”

Stoddard said that also makes the various perks dangled in front of the attorney general — like junkets on private jets — more attractive and creates a sense that he or she is entitled to take them.

But, as Toth notes, on some level, the job also requires someone willing to turn down perks, refuse problematic contributions, eschew partisan grandstanding and focus on administering justice fairly.

“At the highest level, it’s a failure to remember it’s not about you. It’s about your constituents,” he said. “It’s a failure to maintain standards of professional conduct for yourself. You’ve got to draw a line somewhere. You’ve got to set standards and adhere to those.”

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