Attorney General John Swallow didn't delete emails to hide anything, lawyer says

Published: Wednesday, Nov. 6 2013 6:54 p.m. MST

Intentionally destroying records could result in felony evidence tampering or obstruction of justice charges if it can be shown the person knew the documents were under subpoena or were going to be sought in a government investigation. The person does not need to be the target of the investigation, according to state law.

"Both of those issues are obviously in play right now," said University of Utah law professor Paul Cassell, a former federal judge and prosecutor.

But he said it would have to be proven that the intent was to prevent someone from being prosecuted. Destroying records because they might be embarrassing would not be enough for a criminal charge, Cassell said.

Snow said Swallow had no investigations pending against him from 2009 to early 2013.

Reich cited several instances, one going back to April 2012, where Swallow would have known of possible or existing investigations.

Swallow also knew that St. George businessman Jeremy Johnson had criminal and civil cases against him in 2011. Johnson accused Swallow of helping arrange a deal in an attempt to derail a Federal Trade Commission investigation in Johnson's Internet marketing company in 2010.

An Oct. 17, 2012, email from Snow to Johnson asks him to postpone a deposition of Swallow in the criminal case until after the November election, when Swallow won the attorney general's race.

In December 2012, Swallow obtained a deathbed declaration from Provo businessman Richard M. Rawle saying Swallow did nothing inappropriate when he introduced Johnson to him as someone who could lobby the FTC on Johnson's behalf.

Committee members during Tuesday's meeting also questioned the thoroughness of the Justice Department investigation into Swallow that ended with no criminal charges being filed.

Rep. Francis Gibson, R-Mapleton, said it seems that the DOJ didn't seek the information the House committee wants the attorney general to turn over.

"Did the feds not ask for this? And if they did, would they really have discontinued their investigation?" he asked.

Reich said he couldn't answer that but believes it was the House committee's investigators who uncovered the missing data.

"I am extremely confident that the other investigative bodies who've been looking at this issue were not aware of what we have found," he said.

The DOJ served a subpoena to Swallow in July seeking documents related to Johnson, imprisoned businessman Marc Jenson and several others.

In email obtained through a public records request, Swallow told his chief deputy Kirk Torgensen he wants to ensure "full compliance and cooperation" with the subpoena. Murphy said the office provided the requested information.

The House committee subpoena demands some of the same records but looks broader and more detailed in scope.

Cassell said it could be a matter of different approaches to the investigation.

"I think the feds were sort of looking for dirty laundry on particular occasions, and I think the state investigation is going through all the laundry and discovering that some socks and underwear and other things are missing along the way," he said.

Email: romboy@deseretnews.com

Twitter: dennisromboy

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