Attorney General John Swallow didn't delete emails to hide anything, lawyer says
Tom Smart, Deseret News
SALT LAKE CITY — A Utah House investigative committee's findings raised suspicion that information missing from Attorney General John Swallow's computers and other electronic devices was deliberately destroyed.
Swallow didn't make himself available to answer that question Wednesday, but his lawyer said accusing him of erasing emails for nefarious reasons is ridiculous.
"To my knowledge, the attorney general never deleted any emails with the purpose of trying to cover anything up or trying to hide anything," Rod Snow said.
Snow took issue with a report the committee's lead counsel made to the nine-member bipartisan panel Wednesday, saying it "way overstated the problem."
Steve Reich outlined during a House committee meeting Tuesday what he described as a troubling pattern of missing documents in the attorney general's office to an extent that he has never seen. He said data are missing from every electronic device Swallow has had since he served as deputy chief in December 2009.
Swallow swapped out his desktop and laptop computers as he took office earlier this year. The hard drive on his home computer crashed in January, and he got a new cellphone last year, according to Snow.
Reich said investigators want to find what happened to records on those devices and suggested in his presentation that they could have been intentionally deleted.
"Why they're missing, we don't know, and I don't think John knows," said attorney general's office spokesman Paul Murphy.
Kirk Jowers, head of the University of Utah's Hinckley Institute of Politics, said the "whole story could be 'it just looks bad.'"
At best, it's just another suspicious aspect of Swallow acting unethically, and at worst, it's not an improbable accident that the records disappeared but an effort to hide something incriminating, he said.
"The question I would ask the attorney general is, 'Would you believe this story if one of the people you were investigating claimed this accidental mass loss?'" Jowers said. "I think the attorney general's office would treat this story with a lot of skepticism."
Reich explained to the committee why he thinks going to the time and cost to recover the missing data is important. He said he raised the question because representatives of the attorney general's office have called the effort a "fishing expedition."
"Apparently, the attorney general's representatives believe that in the face of a very disturbing pattern of missing records, this committee should throw up its hands and conclude that nothing can or should be done to get to the truth of how this broad set of records went missing and what information it might contain about the underlying issues," Reich said.
The time frame for the missing data, 2009 to 2011, is "highly relevant" to the committee's work, said Reich, a former Justice Department and White House attorney who represented congressional Democrats in President Bill Clinton's impeachment.
House Majority Leader Brad Dee, R-Ogden, challenged Reich to not let the issue get lost in the minutiae of the investigation because it is "extremely germane" to what the committee is looking at.
Snow said the question is, How do investigators know how much email and data are missing?
"We don't know, but whatever it is, we hope they recover it. We think it will be benign and unrelated to anything significant here," he said.
Furthermore, Snow said, the House investigation "isn't so much a document case as a witness case."
It is a class B misdemeanor under state law to destroy government records.
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.
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