Remember, this is a very serious thing. What you're talking about with impeachment is possibly overturning an election, the will of the people in an election. You don't take that lightly. —House Speaker Becky Lockhart, R-Provo
SALT LAKE CITY — When Utah House Republicans gather Wednesday for an unprecedented meeting to consider whether to begin impeachment proceedings against Attorney General John Swallow, there may be few final decisions.
And that's just fine with House Speaker Becky Lockhart, R-Provo, who said all she's expecting from the majority party's planned three-hour caucus meeting is a "very good, robust discussion" about the impeachment process.
"Remember, this is a very serious thing. What you're talking about with impeachment is possibly overturning an election, the will of the people in an election. You don't take that lightly," Lockhart said. "So we have to be very careful."
Under the Utah Constitution, the impeachment process begins in the House and ends in the Senate. Democrats, who are in the minority in both the House and Senate, already have called for lawmakers to start their own inquiry into Swallow's activities.
Swallow — the subject of multiple investigations into a number of allegations, including that he helped broker a deal to pay off a U.S. senator on behalf of an indicted St. George businessman attempting to derail a federal investigation — has said he's done nothing wrong and has no plans to resign.
State legislators have been hesitant to weigh in until now, and the ongoing scandal puts them in uncomfortable and unfamiliar territory.
"For better or worse, there really is no precedent for the caucus that we're going into," Rep. Spencer Cox, R-Fairview, said. "We've never in the history of the state of Utah had this serious of an impeachment discussion involving a statewide elected official."
The House, however, voted to begin impeachment proceedings against 4th District Judge Ray M. Harding in February 2003 after he was charged with felony drug possession. But that's as far as it went. Harding stepped down 10 days later.
While most lawmakers have shied away from talking publicly about impeachment, Cox has not. He posted on his blog a lengthy explanation of the process along with his personal feelings on the issue.
Now he's compiling all the accusations against Swallow along with the attorney general's public responses to them for another blog post that he says won't be for the casual reader.
"The unfortunate part is it really is a big undertaking because there are so many allegations and so many investigations," said Cox, a lawyer. "It's kind of a sad state of affairs when you need a spreadsheet to keep them all separate."
Lockhart said if lawmakers want to know more about Swallow, they only have two options.
"The only way to get more information is to have an investigative process or wait," she said. "We either wait to see what happens in the other cases, or we begin an investigation."
Now, the speaker said, "people don't know anything more than what's been reported, what's out there, and frankly, the Legislature doesn't either. We have no special information. Investigators aren't telling us how it's going."
Cox agreed the 61-member caucus will spend a lot of time learning about the impeachment process, but he said he expects the talk will inevitably turn to whether the House should move ahead.
"I think there will be a natural tendency to go there in the discussion. I think we almost have to, to at least get a sense of where the body is generally," he said.
Options for a legislative investigation into whether Swallow should be removed from office include sending the issue to an existing interim committee or creating a separate committee to review the attorney general's situation.
But Lockhart said it's not clear that House members can gather information about Swallow's troubles without convening an impeachment session to appoint a committee and hire a special counsel.
That may be tough to sell to some lawmakers on starting the process, out of concern that the public is likely to view the start of the proceedings as a signal that the Legislature believes Swallow is guilty of wrongdoing.
"As soon as you hear the process of impeachment has started, most citizens think, 'Oh, he must have done something wrong,'" University of Utah political science professor Matthew Burbank said. "That's just a natural assumption."
Lockhart said that's not what lawmakers would be saying by launching an investigation using their subpoena powers to collect testimony and evidence.
"The question isn't, 'Do you want to impeach this person?' The question is, 'Do you want to convene an impeachment session?'" she said. "We need to be very clear that if we move forward with an investigation, that one of the outcomes could be there's not enough evidence."
Lawmakers wouldn't be duplicating the ongoing criminal investigations by federal, state and local authorities, the speaker said, but looking at whether Swallow committed "high crimes and misdemeanors."
Those are defined, Lockhart said, as "issues of public trust" as well as violations of the law.
While many may believe an official could only be impeached for committing a crime, impeachment is a political rather than a judicial process. An official could be impeached for malfeasance or dishonoring the office. Although impeachment requires only a preponderance of evidence, the higher beyond-a-reasonable-doubt standard used in a criminal case does not apply.
Lockhart distributed a five-page letter Friday from Swallow's attorney, Rod Snow, to the Legislature's general counsel. The letter states there are no grounds for impeaching the attorney general, calling any proceedings unwarranted.
The letter said lawmakers can choose "what appears to be a politically expedient and beneficial approach where innuendos and unsupported allegations become the basis of a rush to judgment."
Or, according to the letter, lawmakers can opt for "the fair and reasonable approach where headlines and allegations are treated only as allegations until proven and are not allowed to drive the agenda of our legislative leaders."
In addition to the U.S. Department of Justice investigation, the lieutenant governor's office is appointing special counsel to determine whether Swallow violated state elections laws.
Also, prosecutors in two counties are looking into allegations involving the state ethics laws, which prohibit accepting gifts and compensation that would improperly influence the impartial discharge of official duties.
And the attorney general is the subject of two Utah State Bar complaints of professional misconduct.
Swallow, a former House member, said he has nothing to hide and that he would cooperate if lawmakers conduct an investigation, including providing information and answering questions.
But he said Utah Supreme Court case law sets a high standard for impeachment.
"You ask yourself, my goodness, have I been accused of things that would get to that level? If I really did bribe a U.S. senator, I should be more than impeached. I should be sitting behind bars somewhere," Swallow said.
The cost of impeachment
Burbank believes lawmakers may be reluctant to begin an investigation because the public will expect to see results after the incidents in question are detailed for the first time outside of media reports.
"That really opens a door. It's hard for politicians to then say, 'We began investigating and there's nothing there,'" the professor said. "It's very hard to then say there wasn't really anything going on."
Lawmakers, Burbank said, won't be expected to look at "illegal actions that have to be proven in court. They're going to be about, 'Does this look bad?'"
There's also an issue of the cost involved in an impeachment proceeding. Although the state has yet to estimate the price tag, similar efforts in other states have cost millions of dollars.
Lockhart said her constituents are split over what action lawmakers should take.
"I'm hearing the entire spectrum, people who say it's a media witch hunt, there's no facts out there, etc., all the way to others who say he's got to go, he clearly can't do the job," she said. "I would have to say I hear more of that — 'It would be better if he resigned' — than I hear anything else."
There is more pressure, too, from others weighing in on the Swallow situation.
Two groups, the conservative Sutherland Institute and the left-leaning Alliance for a Better Utah, have called on Swallow to resign. Gov. Gary Herbert cited Swallow's ethical challenges and said if the attorney general worked for him, he'd be gone.
Lockhart declined to publicly state whether she believes Swallow should step down because of her potential involvement in impeachment proceedings. "He maintains his innocence," she said. "And I can't make decisions for him."
House Minority Leader Jen Seelig, D-Salt Lake, said she agrees with the speaker on the need to approach a legislative investigation carefully.
"I think everyone just wants to be absolutely correct," she said. "If the goal of this is to restore the public trust, we've got to do it right."
While GOP House members mull impeachment proceedings, the Republican-controlled Senate will stay on the sidelines for now.
Senate President Wayne Niederhauser, R-Sandy, said the Senate and House have separate impeachment duties and both are jealously guarding them.
"I think it's clearly the responsibility of the House to file articles of impeachment and go through the investigative process," Niederhauser said.
The Senate, he said, needs to remain impartial because it would conduct the trial if the House advances articles of impeachment.