In our opinion: Unresolved suspicion

Published: Monday, May 13 2013 12:00 a.m. MDT

Every day that passes without resolution to the messy allegations against Utah Attorney General John Swallow is another day in which Utah's administration of justice has to operate under a cloud of unresolved suspicion.

To have the chief legal officer of the state seriously impugned with regard to his impartiality and judgment might not substantially affect the day-to-day work of the many fine public servants who administer our justice system. But those unresolved suspicions are understandably corrosive to the public confidence upon which the rule of law ultimately depends.

All can agree that because of inherent concerns about bias, the attorney general's office is incapable of investigating the attorney general. Consequently, it was a welcome development that the Legislature empowered the lieutenant governor's office to seek a special prosecutor in cases where an attorney general may have violated state election law. And it was another welcome development that last week Lt. Gov. Greg Bell took that responsibility seriously enough to start the process of seeking a special counsel in the serious election law issues facing Swallow.

But the complex issues swirling around Swallow are not limited to just state election law. The former head of the state Division of Consumer Protection has filed a professional misconduct complaint against Swallow. There is an ongoing federal investigation probing allegations of influence peddling made by an indicted businessman. And news outlets have reported allegations of extortion from an imprisoned businessman in regard to payment of Swallow's expenses at a posh resort.

English law is imbued with a concept known as natural justice, a concept that, because of our common law heritage, significantly influences notions of fairness in American law. The accusations mounting against Swallow are testing how and if natural justice applies to Utah's chief law enforcement officer.

Natural justice has two parts. The first is known as the rule against bias: no person should legally determine rights where he or she has an actual or imputed interest. The second is the right to a fair hearing.

Normally, serious accusations of illegality are referred to the attorney general or the district and county attorneys overseen by his office. The rule against bias complicates this in the case of Swallow. He obviously can't decide whether to prosecute himself.

Federal prosecutors, who will certainly consider any conduct they uncover in light of state, as well as federal, laws, could refer potential state violations to the prosecutorial arm in the county where the violations allegedly occurred. That county then could investigate those charges.

Natural justice would further demand a fair hearing for Swallow. There is an often quoted maxim from a prominent Lord Chief Justice of England and Wales, Gordon Hewart: "Justice should not only be done, but should manifestly be seen to be done."

Given the questionable motivations that could be attributed to some of Swallow's more unsavory accusers, it is vital that all the issues be aired forthrightly and fairly. We have previously asked Swallow to use the public square as a forum to make an account. Perhaps the vagaries of the court of public opinion make it an unfair venue for a hearing. But could the vagaries of the unfolding, multifaceted processes of the Swallow scandal feel any more uncertain?

We plead with all who now have any official role in clarifying the status of our attorney general at the federal, state or professional level, to ensure that their fair and transparent processes proceed with resolute dispatch. This cloud that now obscures public trust in our legal institutions must not linger indefinitely.

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