The fog around these documents delayed our work. —Steve Reich
SALT LAKE CITY — A meeting with indicted businessman Jeremy Johnson at a Krispy Kreme shop in Orem so rattled then-attorney general candidate John Swallow last year that he went on a monthlong spree of destroying data and creating documents to cover any appearance of wrongdoing, a Utah House committee lawyer said Thursday.
Steve Reich, lead attorney for the special investigative committee, spun a damning four-hour narrative of Swallow's actions after the April 30, 2012, meeting with Johnson, who secretly recorded the conversation.
Swallow feared that if his involvement with Johnson became public, it could cost him the election and make him the target of a criminal investigation. He also wondered what he would do if he couldn't be a lawyer.
"We believe the evidence here shows Mr. Swallow panicked following the Krispy Kreme meeting," Reich told the bipartisan panel. "It was this panic that led him down a path of evidence elimination and evidence fabrication."
Committee members were shocked and angry after the first half of Reich's unprecedented report on a statewide elected official in Utah. He'll continue his presentation Friday.
"John Swallow is on a mystical island that only he can see," said Rep. Mike McKell, R-Spanish Fork. "As I sit here and look at what our attorney general did, it's offensive to voters, it's offensive to me, and I think it should be offensive to the Legislature."
Although the committee wasn't charged with making a recommendation on impeachment, McKell said it would "absolutely" be on the table if Swallow hadn't resigned this month.
"It's clear that John Swallow has not been truthful to the people of Utah. Period," McKell said.
Swallow's attorney Rod Snow in an email Thursday denied that Swallow deliberately deleted computer files or that he fabricated documents.
"Nothing to our knowledge was intentionally deleted that was problematic, that is that would have been incriminating. Emails were deleted in the regular course," he said.
Snow said the committee findings reflect its need to justify the more than $2.3 million it has spent on the investigation.
"Just remember there are two sides to this story, and the House only wants to hear one side to justify the expenditure of taxpayer dollars," he said.
Reich said Snow wouldn't agree to a videotaped interview of Swallow.
"We never got to ask him the many questions we had about what happened here," he said, adding it left investigators to rely on Swallow's statements in other forums, including the press.
And through Swallow representatives, investigators got "shifting and contradictory" explanations. "His changing of events goes beyond the frailties of human recollection," Reich said.
It's "highly unlikely" that Swallow's missing 2010 emails were accidentally deleted from his inbox or trash bin, he said.
Investigators found data missing from every electronic device Swallow had since he first joined the attorney general's office as chief deputy in December 2009. Swallow also apparently lost an external hard drive on an airplane last November and lost his iPad in on a trip to Washington, D.C., earlier this year.
"We don't believe this slew of data losses can be innocently explained," Reich said.
Reich didn't go so far as to say Swallow committed any crimes, but he said prosecutors might well consider charges such as obstruction of justice, destroying state records and impeding state employees from doing their jobs.
Swallow is the subject of an ongoing joint Salt Lake County and Davis County criminal investigation.
"Unless you believe in some sort of mystical technology-eating dragon, there's got to be some obstruction," said Rep. Francis Gibson, R-Mapleton.
Reich said investigators learned that Swallow knew all along that his 2010 emails were not lost during the state's migration to a new email system last fall as he had stated. He said the committee spent hundreds of thousands of dollars trying to recover the data. Swallow knew in July that it was missing and didn't admit it through his attorney until "absolutely forced to," Reich said.
"Why is it that his story changed and morphed every time we confronted him?" Reich said.
Everything Swallow did was predicated on the Krispy Kreme meeting, he said.
Johnson claims Swallow helped broker a deal to bribe Senate Majority Leader Harry Reid as part of a plan to derail a federal investigation into Johnson's Internet marketing company.
Swallow has vehemently denied the accusation, saying he only introduced Johnson to a friend with connections to federal lobbyists who might be able to help him, but that it wouldn't be cheap. He also denied getting paid for the introduction.
Johnson and an associate paid Richard M. Rawle $250,000. He hired lobbyists, but the Federal Trade Commission filed a complaint against Johnson and his company before they could do much on Johnson's behalf.
Rawle also initially paid Swallow $23,500 for consulting he did on a Nevada cement plant project in 2010 and 2011 out of that money. Swallow later sent the checks back and asked Rawle to pay him from a different account.
Reich said Swallow created invoices and day planner entries to reflect that work after meeting with Johnson. On Jan. 24, 2011, Swallow jotted down that he had done 12 hours of "cement work." On the same day, he put down 12 hours of work on his attorney general's office timecard, according to a copy of the records Reich showed the committee.
That and several similar calendar and timecard entries led investigators to believe the invoices were fake, Reich said.
Snow said Swallow did a lot of work on the cement plant project and that Rawle was satisfied with it.
"When all this became an issue, John went back and constructed his work and time as best he could to document it, and he has freely admitted that is what he did," Snow said. "There was nothing sinister about it, although it can be made to look that way."
Rawle signed an affidavit explaining his arrangement with Swallow just days before he died of cancer in December 2012. Swallow distributed the document as proof that he'd done nothing wrong.
But Swallow made conflicting statements about how the document was written, Reich said.
"Facing his maker, (Rawle) had his people prepare an affidavit for him, which he reviewed, changed, modified and signed, and it said this (alleged scheme) didn't happen," according to a KUTV interview Reich showed the committee.
In an email to Rawle's company attorney, Chief Operating Officer Cort Walker wrote that he couldn't back up Swallow's statement.
"I believe the first time we saw this affidavit, it came from Rod Snow who probably co-wrote it with Swallow," Walker wrote.
In an interview with investigators for the state elections office, Swallow said, "Well, Richard was really getting sick and taking a downturn, and I believe I prepared some notes that I gave my lawyer, and I believe he prepared the draft."
Also at Johnson's behest at the Krispy Kreme meeting, Swallow had a campaign staffer buy him a prepaid cellphone or "burner" phone that law enforcement couldn't track.
"John needed me to make a purchase that could not come back to the campaign at all. I paid cash," according to the staffer's email to another campaign worker.
Reich said Swallow was aware of his "digital footprint" and took measures to contain it.