Frank Pignanelli & LaVarr Webb: Does it make sense for the House to investigate Swallow?

Published: Sunday, July 21 2013 12:00 a.m. MDT

John Swallow

Scott G Winterton, Deseret News

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We'd really rather be fishing (Webb), or sipping a cool libation (Pignanelli), than pontificating about politics. But duty calls (along with demanding editors), so we address a few current issues.

The Legislature has established rules and membership for the Utah House special committee investigation of Attorney General John Swallow. In retrospect, and with all the other parallel inquiries, does it make sense for the House to be investigating Swallow?

Pignanelli: "If you judge, investigate." — Lucius Annaeus Seneca

During the special session, the most time-consuming issues were the Swallow impeachment and possible changes to Utah's liquor laws. This cocktail of controversies (pun intended) caused several devout Latter-day Saint lawmakers to quip in jest that the attorney general mess was tempting them to imbibe in alcohol. (Experienced in such matters, I offered assistance.)

Federal and state authorities are investigating whether John Swallow violated specific laws and regulations. The legislative investigation has a different mission — to determine if certain actions conducted by Swallow (regardless of legality) prevent him from performing in office. The simple fact is that Utahns have lost confidence in their attorney general. There are no demonstrations of support from the business and legal community for the state's chief law enforcement officer. Excepting a handful of ultraconservative activists, the state wants him gone. The Legislature appropriately and effectively responded to their constituents.

Speaker Rebecca Lockhart continues to amaze veteran observers with her leadership style. Without benefit of precedent, she shrewdly constructed an impeachment committee with strong investigatory powers and transparent to public view. All demands regarding open government made by my client, the Utah Media Coalition and their prominent attorneys Jeff Hunt and Michael O'Brien, were satisfied without question. In the meantime, Senate President Wayne Neiderhauser and his colleagues are not prejudicing themselves with public statements so they can act as jurors. Most Democrats are satisfied with the proceedings (other than committee partisan division).

Dang. All this statesmanlike conduct deprives me a reason to drink.

Webb: Certainly, the Legislature has the right, if it desires, to be the guardian of ethics and propriety in state government — investigating and potentially booting out of office scoundrels who don't maintain proper standards.

But it's a tricky thing — perhaps enough to drive Frank back to the bottle.

I'm no lawyer, but it's clear that in most cases of possible misconduct, the investigative and evidence-gathering parts of legal processes are done quietly and privately, guided by long-established standards, laws and procedures. The accused person, after all, might be innocent. If evidence points to lawbreaking, further public steps in the justice system are openly pursued and guilt or innocence is established.

By contrast, the legislative procedures are inherently open and public, under the glare of media and citizen scrutiny. And it's not precisely clear what lawmakers are looking for — Lawbreaking? Loss of public confidence? Questionable ethics? Inability to perform one's duty? — and what rises to the level that impeachment should go forward. In addition, these legislative hearings might last for many months, keeping this matter continually on TV and in the headlines, the focus of much speculation and second-guessing.

So time will tell whether the House investigation is constructive or merely adds another ring to the multi-ring Swallow circus. To their credit, House leaders have been careful, thoughtful, bi-partisan and thorough in their deliberations and actions. But this undertaking is truly groundbreaking, without precedent or previous experience. It's impossible to predict the outcome.

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