Robert Bennett: Shurtleff and Swallow are 'innocent until proven guilty' in the A.G. scandal

By Robert Bennett, For the Deseret News

Published: Mon, July 21, 2014, 12:55 p.m. MDT

 Max Wheeler, left,  attorney for Former Utah Attorney General Mark Shurtleff, right,  talks about charges of bribery and various other charges against his client who was  booked and released from the Salt Lake County Jail Tuesday, July 15, 2014, in Salt Lake City.

Max Wheeler, left, attorney for Former Utah Attorney General Mark Shurtleff, right, talks about charges of bribery and various other charges against his client who was booked and released from the Salt Lake County Jail Tuesday, July 15, 2014, in Salt Lake City.

(Tom Smart, Deseret News)

The fact that two of Utah’s former attorneys general were arrested on the same day for a series of alleged crimes has made national news. The history behind the current travails of Mark Shurtleff and John Swallow goes back a long way and is worth reviewing.

I first heard things were amiss in the attorney general’s office in 2009, after Shurtleff announced he was going to run against me in the Senate race. Lots of people came to me with lots of tales about sleazy things taking place on his watch.

I wanted to make sure that no one connected with my campaign would be tempted, in the heat of battle, to repeat any of them if they were false, so, to guard against that, we hired a researcher to look into the public record to determine what the facts really were. We did find some actions that looked pretty bad, at least on the surface. However, we stopped all further inquiries when Shurtleff pulled out of the race.

But others didn’t. Speculation about alleged improprieties that might have been crimes, gleaned from the same public records we had been examining, began to appear in the press. Once it became known that official investigations by a variety of agencies were underway, there were frequent rumors that legal action against Shurtleff was imminent. I can’t count the number of times during the last four years when I have been told, “Shurtleff is going to be arrested within weeks.”

Then the U.S. Department of Justice announced that it had concluded its investigation and that no legal action would be taken. I assumed the matter was dead, and, obviously, so did Shurtleff.

I believe it was Swallow’s election that brought it back to life. He had not only been Shurtleff’s deputy and then hand-picked successor, but also his closest political ally. The allegations against Swallow set off new investigations into his past and reopened old ones from Shurtleff’s. The state Legislature got into it in-depth, Swallow resigned under a cloud and Shurtleff tried to put distance between himself and Swallow by citing the Justice Department decision not to prosecute him, saying it was proof of his innocence.

It now appears that one reason there have been arrests is that not everyone connected with the federal investigation agreed with the decision to let the Shurtleff matter die. Those who had conducted the investigation — primarily agents in the FBI — seem to have had a different view than those who would have been responsible for prosecuting the matter — primarily attorneys in the Justice Department.

FBI agents in Utah appear to have “gone shopping” for a prosecutor who would pursue it. This assumption is bolstered by comments made by Sim Gill, the Salt Lake County district attorney who filed the charges and who praised the FBI for its help in building the case while chiding the Justice Department for its failure to act on it.

Now, the question is not “Were Shurtleff and Swallow bad attorneys general?” but “Did Shurtleff and Swallow break the law?” Further, in a criminal court (as opposed to the court of public opinion) the test that must be met is “evidence beyond a reasonable doubt.” Given the differences of opinion on that question that seem to have arisen on the federal level, that might not be as easy to achieve as some now suppose.

That’s why putting the case before a jury, where both sides will have the full opportunity to make their cases, is the only way to resolve it. As the trial proceeds, remember — “presumed innocent until proven guilty.”

Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah’s Hinckley Institute of Politics.

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1. LDS Liberal
Farmington, UT,
July 21, 2014

Sure --
Why not lecture all the "Obama haters" in Utah first.

Show me, Don't tell me.

BTW --
You know Senator,
With all due respect,
Senator Mike Lee was connected with these BOTH of these guys --
and beat you because of it.

I know, I know -- he's innocent as well until proven guilty...

2. one vote
Salt Lake City, UT,
July 21, 2014

Why were they never impeached?

3. Aggie238
Logan, UT,
July 21, 2014

You know, I agree with Mr. Bennett in principle, that is, I agree that justice and ultimately the public is better served by a legal system which presumes the innocence of the accused until they are proven guilty beyond reasonable doubt. However, on the flip side, I have to take anything Bennett says with a large grain of salt, given that he is solidly rooted in the Utah Republican "establishment" which is in part responsible for the political culture and conditions which allowed this to happen in the first place.

--a registered Republican

4. GaryO
Virginia Beach, VA,
July 21, 2014

Sometimes the best-laid plans go afoul.

Shurtleff had a reasonable expectation that his hand-picked successor, Swallow, would be in a position to help protect Shurtleff from criminal charges being brought against him.

But then the spotlight turned to Swallow, and when that focus broadened and the picture zoomed outward, there was Shurtleff . . . wild-eyed, smiling, sweating bullets, and pointing the finger of blame at his Liberal political enemies. Ta da!

You know how it is when you watch a movie, and the plot is so hackneyed you just know what’s going to happen next? Well, I KNEW Shurtleff would claim that Democrats were instigating a political farce and unjustly blaming him.

And he’s sticking to his story.

Since then, the poor, beleaguered former AG has been persecuted constantly. His home was violated, and his daughter was threatened by Storm-Trooper intruders brandishing firearms, and the poor innocent AG has steadfastly insisted on his innocence . . . He knows NOTHING about any improprieties.

But you know what? If prosecutors offer him immunity, I KNOW Shurtleff will change his story and rat out Swallow.

Yes, they are both innocent until proven guilty.

5. Shimlau
July 21, 2014

This may not have anything to do with shurtleff and swallow, but I sure wish that the IRS had to operate on the premiss of inocense until proven guilty. All they have to do is suspect you, without a shred of proof, and you're had. 'guilty until proven innocent' and by the way, we're not going to try to prove you're innocent either.