What's happened here makes our job immeasurably harder and immeasurably costlier. —Steve Reich
SALT LAKE CITY — A lawyer for the Utah House committee investigating Attorney General John Swallow says it's troubling that records are missing from every electronic device Swallow has had since he became chief deputy four years ago.
Steve Reich also told the panel Tuesday that he couldn't fathom why the Utah Attorney General's Office didn't issue a "document hold" in the face of several investigations into alleged wrongdoing on Swallow's part, and that Swallow seemed aware as far back as April 2012 that federal authorities had an eye on him.
"I will tell you the scope of the data loss here is not anything that I have seen before, and it is something that I find deeply worrisome," he said.
Reich told the nine-member committee that investigators have run into a "series of troubling circumstances" the past month, including the missing electronic records, the attorney general's office failing to preserve evidence, and a witness ignoring a subpoena.
"What's happened here makes our job immeasurably harder and immeasurably costlier," said Reich, who served as lead counsel to the Connecticut House committee that investigated then-Gov. John Rowland in 2004.
Not only do investigators want to recover information missing from Swallow's desktop, laptop and personal computers, cellphone and PDA, they also want to figure out if it was deliberately deleted, he said.
Reich said investigators can't say how the data disappeared, but "what we can say now is that if relevant records were intentionally deleted, the committee must examine whether those deletions were part of an effort to hide the truth."
Only three people, including Swallow, had access to Swallow's accounts, and two of them told investigators they didn't remove any of the missing data, Reich said.
"That obviously leaves one individual that we'd want to talk to about what happened. It would be the attorney general," he said.
Under state law, it is a class B misdemeanor to destroy records.
Reich said he would leave open the possibility of a "benign explanation," but "what we have learned should be very troubling to the committee."
His report seemed to stun committee members, some of whom questioned whether the first-term Republican is taking the House investigation seriously.
Rep. Francis Gibson, R-Mapleton, said Swallow pledged full support to the federal investigation, "but yet to this committee, that doesn't seem to be the case." The Department of Justice decided in September not to file criminal charges against Swallow.
And Rep. Lynn Hemingway, D-Salt Lake City, said, "Does he consider this committee a bridge club where we just get together and play cards?"
Swallow's attorney, Rod Snow, said Swallow is "just fine" with the missing records being recovered.
"We do not believe that any of the data will suggest wrongdoing on the part of the attorney general," Snow wrote in an email.
Investigators say a large number of Swallow's emails are missing from computer servers along with many electronic calendar entries from 2009 to 2011. Swallow served as chief deputy attorney general from December 2009 before being elected to the top spot last November.
Swallow's home computer crashed in January, and Snow said despite it being sent to a private computer consultant, the data could not be recovered.
Swallow received new state-issued desktop and laptop computers and a PDA when he took office in January. Reich said the office technology staff asked him if he had everything he needed from the old devices, and when Swallow said yes, nothing was transferred to the new computers. The old ones were then wiped clean, he said.
Swallow also replaced his personal cellphone in 2012. Reich said it's unclear if the information can be retrieved.
One explanation that came out of the office last week for the lost emails was the state switching email systems last November. But the Utah Department of Technology Services, which oversaw the transfer, says it isn't aware of any data being lost in the migration.
Swallow spokesman Paul Murphy said the attorney general "self-reported" missing emails in January, and that about 3,500 of them were recovered.
The committee issued a subpoena to Swallow and his office in September.
The Utah Attorney General's Office has blocked access to some of the data, saying it contains personal health information that is private under federal law. The committee filed a motion in 3rd District Court last week to force the attorney general's office to allow its computer expert to recover the data without reviewing medical information.
Filing court motions and hiring a computer expert has driven up the cost of what the House had estimated would be a $3 million investigation.
"To the extent that the data is missing, it makes the committee do more work, more time and more expense," said committee Chairman Jim Dunnigan, R-Taylorsville. "We're now going to have to expend taxpayer dollars to try to recover or even have access to this data."
The committee has spent $688,000 on legal and investigative fees to date, he said. Dunnigan didn't know how much the computer forensics expert would be paid.
Reich said there are several reasons why the "unfettered intentional deletion" of records would be inappropriate. One of them is the knowledge of an investigation, which would call for the common practice of a "document hold" to keep any relevant records.
Reich cited three instances where Swallow seemed aware federal investigators might be looking at him, including an April 2012 meeting with St. George businessman Jeremy Johnson in an Orem doughnut shop. Johnson claims Swallow helped broker a deal to pay off Senate Majority Leader Harry Reid, D-Nev., to quash a Federal Trade Commission investigation into Johnson's one-time thriving Internet marketing company.
During that exchange, Johnson and Swallow discussed the possibility of a federal investigation and whether Reid or another politician would be the target.
"I think I'm their target," Swallow tells Johnson, according to a transcript of the conversation that Johnson secretly recorded.
Said Reich, "If the facts show that an intentional deletion of documents occurred after the attorney general expressed the view that he was the target of a federal investigation, how can the committee not examine that issue?"
Swallow himself also sent a letter to the Utah U.S. Attorney's Office calling for an investigation in January. He also received a subpoena from the U.S. Department of Justice in July demanding he testify or supply records as part of its investigation.
Snow said there were no investigations pending against Swallow from 2009 through early 2013.
"It is when documents start disappearing after an investigation commences and you are aware of it that should raise suspicions," he said. "That is not the case here."
The attorney general's office did issue a document hold two days after receiving the Sept. 25 subpoena from the committee.
Reich also told the committee that Softwise Inc., a Provo payday loan software company, has refused to respond to a subpoena issued last month. Investigators believe Swallow sent emails from a Softwise account, he said.
The company's manger, Todd Rawle, is the son of the late Richard Rawle, whom Swallow introduced to Johnson as someone who could help lobby the FTC on his behalf. Swallow also worked as a consultant for Richard Rawle on a cement plant project in Nevada.
The money Swallow received from that work is an issue in a state elections office investigation into alleged campaign finance disclosure violations.
The committee approved a motion directing its lawyers to take any steps necessary to enforce the subpoena.
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