Sometimes, when practicing as a lawyer, the most difficult arguments to respond to are the ones that are so ridiculous that you have a hard time even fathoming what to say.
I feel like John Swallow put me in that position last night, when the guys at Utah Political Capitol released a letter from John Swallow’s attorneys to John Fellows, the general counsel of the Utah legislature, on the subject of Swallow’s potential impeachment.
The substance of the letter tracks what John Swallow has been telling any (perceived) sympathetic or wavering ears lately: that there is no legal basis upon which to impeach him because he hasn’t been charged with or convicted of a crime and any other alleged ethical lapses occurred prior to him assuming the office of Attorney General.
The arrogance of this move astounds me — not just because the argument is obviously incorrect, which it is. I’m astounded because this is such an insult to the legislature, the courts, and the people of this state. It’s the very definition of refusing to accept responsibility, acting as a bully, and claiming to be above the law.
I try not to engage in hyperbole. But I’m blown away by this. And it’s got me ticked off.
Swallow’s letter (which he clearly wanted to get in the hands of legislators prior to their meeting on impeachment this coming Monday) was apparently written in response to the following statement by Mr. Fellows:
“Because impeachment is constitutionally vested in the legislative branch, courts have generally declined to interfere in the process, including declining to second guess the legislative branch on the meaning and scope of the terms ‘high crimes, misdemeanors, or malfeasance in office.’”
John Swallow doesn’t like that language because it suggests to legislators that, due to the principle of separation of powers, courts are not likely to second-guess their impeachment decision. That’s true, and for good reasons that I’ll talk about below.
But it’s bad news for Swallow, who wants to initimidate legislators into refusing to impeach on the fear that they’ll be censored for overstepping their authority by the Utah Supreme Court.
So John Swallow has asked his attorneys to respond, and in this letter they go on to assure the legislature’s general counsel that “[w]e have researched Utah law on the grounds for impeachment” and ofer to “share the results of that research in hopes that the legislature will recognize that any such proceedings under the circumstances presented here, are unwarranted.” (PS — I don’t blame Swallow’s lawyers, who are just doing their job, for any of this.)
Here’s what Swallow’s attorneys say:
“The Constitution of Utah, Article VI, Section 19, governs the impeachment of Utah State officers, including the Attorney General: ‘[t]he Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office.” . . . Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor. The question is, whether or not, under Utah law, there is any credible argument that Mr. Swallow has committed “malfeasance in office” and whether the facts and circumstances at this point provide a basis for impeachment proceedings.”
Swallow’s attorneys simple waive away the “high crimes and misdemeanors” language with the statement that “Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor.”
And so they don’t examine that further (more on that below). Instead, they focus solely on what they define as “[t]he question“: whether John Swallow has committed “malfeasance in office.”
Despite acknowledging that “there are no reported cases involving legislative impeachment in Utah” (Translation: they admit that the Utah Supreme Court has never defined the extent of the legislature’s authority to impeach because the legislature has never impeached anyone before) Swallow’s attorneys go on to cite two cases involving the impeachment of a County Auditor and a Mayor in a judicial proceeding under authority delegated from the legislature by statute.
Let me summarize the opinions for you.
State v. Jones.
State v. Jones involved an attempt, initiated in 1965, to impeach the Salt Lake County Auditor solely on the basis that he had failed to file a tax return in 1959. The whole basis of the complaint was simply that the auditor had committed a misdemeanor under federal law by not filing the return. There was no allegation of fraudulent or improper motive; simply that the auditor had failed to file a return.
The Utah Supreme Court reasoned as follows:
If it had been intended that removal from office should result from committing just any crime, including all misdemeanors, that could have been achieved by simply stating the generality: that an official could be removed for any crime. . . . .
The term “high crime” as used in statutes such as this is generally understood to mean not only a serious offense, but one in which there is harm or injury directed against other persons and is thus a violation of the basic mores of society, e.g., robbery, burglary, larceny, embezzlement or some crime of a character which involves such moral turpitude or is so offensive to accepted standards of honesty or integrity that one guilty of such a crime is unfit for a public trust and should therefore be removed from public office. Considering the terms of this statute together in context and in the light of its purpose, it seems only reasonable to suppose that for a misdemeanor to work a forfeiture of office it should partake somewhat of the same character. This is necessarily so because it can hardly be credited that it was intended that a public official should be removed from office for any failure to comply with any requirement of the law down to jaywalking, improper parking, or spitting on the sidewalk, whether related to his conduct in office, or to his qualifications for it or not.
There are various considerations which have a material bearing on the question whether the offense here charged is of such nature that one guilty of it should be deemed unfit for public office within the intent of this statute. One . . . is that this offense does not include any imputation of falsification or fraud with respect to the defendant’s income tax, so that particular aspect of moral wrong is not present. Nor does it involve any harm or injury directed against any other person and is thus not an offense malum in se, that is, inherently and essentially evil or immoral. . . . .
We do observe that it is not our purpose or desire to condone or justify the defendant’s dereliction, nor to minimize the importance or the necessity of citizens filing their income tax returns on time and paying taxes justly due. It is of course desirable for everyone, especially public officials, to conform to the law in all respects, and in fact to live exemplary lives. But unfortunately public offices must be staffed with people beset with human frailties and we must deal with them as such. That the defendant did not live up to an exemplary standard is not to be questioned. But upon the basis of the various considerations set forth herein, it is our conclusion that the offense he committed is not shown to be within the class of crimes which it was intended under our statute that guilt thereof would demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.
And now let me quote in full the language that Swallow’s attorneys quote only in part:
Underlying the problem here dealt with, and supporting the conclusion we have reached, is the principle, fundamental in our democracy, that the privilege of choosing and electing public officials, and repudiating them if and when they so desire, belongs exclusively to the people; and that neither the courts nor any other authority should be hasty to encroach upon that right. There could be no more certain move toward the exercise of autocratic control and the disruption of our greatly valued balance of power than for one branch of the government to usurp prerogatives not belonging to it. Out of our Constitutions, Federal and State, and the historical development thereon, there is reposed in the courts the responsibility of passing judgment upon the actions of public officials and the functions of the departments of government. Both experience and wisdom teach that the greater the power the greater the duty of exercising forbearance in its use. An awareness of the dangers that could come from courts arrogating to themselves arbitrary powers emphasizes the necessity of approaching such matters with caution and with judicial restraint; and of refusing to interfere with the orderly processes of government except under circumstances where it is clearly apparent that the legislative mandate or constitutional provision requires it to be done.
Before I analyze this opinion, I want to emphasize again that this is not an interpretation of the Utah Constitution. This is an interpretation of authority delegated by the legislature to impeach by statute. I’m only analyzing it because Mr. Swallow’s attorneys are relying on it.
But, putting aside that the Jones and Madsen cases don’t govern Mr. Swallow’s situation, at least three things are clear from this opinion. First, the Utah Supreme Court views the purpose of the impeachment as expelling an officer for actions that “demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.” Second, the phrase “high crimes [and] misdemeanors” means something different from “charged with and convicted of a crime,” otherwise the commission of a federal misdemeanor would have been a basis for impeachment. Third, it is clear from the opinion that it is the Courts that are (and should be) reluctant to aggregate to themselves authority to impeach. The legislature is constitutionally tasked with the obligation and given the authority to act when appropriate and need not (and should not) exhibit the same reticence with respect to overstepping authority.
Madsen v. Brown.
The second case cited by Swallow’s attorneys purporting to define “malfeasance in office” is Madsen v. Brown, which involved the impeachment of the Mayor of Grantsville for shooting a dog. In the Madsen case, the impeached Mayor acknowledged shooting the dog, but claimed that it didn’t constitute “malfeasance in office” because it didn’t occur while he was performing an official duty of his office as Mayor. The Court reasoned as follows:
Appellant’s arguments focus on the interpretation of the requirement that the acts or omissions relate to the duties of the office. He contends that in order to establish the offense of malfeasance in office, the acts or omissions must occur in the course of some specified official duty as defined by statute or ordinance.
The standard urged by appellant does not coincide with the commonly understood meaning of the term “malfeasance in office” or the intent of removal statutes to protect and preserve the office and to free the public of unfit officers.
There is a range of conduct that can occur while an officer is acting under color of office, but outside any specified official duty as defined by statute or ordinance that sufficiently relates to the duties of office so as to taint the office itself or establish that a particular officer is unfit to retain the public trust. This range of conduct is included in the commonly understood meaning of malfeasance in office. R. Perkins, Perkins on Criminal Law 487 (2d ed. 1969) states that malfeasance in office can occur when an officer exercises official duties or acts under color of office. The term “under color of office” is further defined in R. Perkins, supra, at 483: “The act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office.”
The object of the requirement that the act or omission relate to the duties of the public office is to ensure that an official is not removed for malfeasance in office when the alleged wrongful acts or omissions occurred while the officer was acting in his private capacity as opposed to his capacity as a public officer. This requirement has not been interpreted to preclude removal where the official was acting in his public capacity outside specifically defined duties of his office. The question as to whether the alleged misconduct occurred while the accused was acting in his public, as opposed to his private, capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specific duties as created by statute or ordinance.
Again, the Utah Supreme Court emphasizes its view of the purpose of impeachment: ”[T]o protect and preserve the office and to free the public of unfit officers.”
And the Court takes an expansive view of the definition “in office.” (And as a side note, I will note that, even before he was ELECTED Attorney General, John Swallow would have still be eligible for impeachment as a Deputy Attorney General under the statute referenced in the Jones and Madsen decisions for malfeasance in office. In other words, “in office” also means more than just “in elected office,” at least under the state statute relied on by Swallow’s attorneys.)
But perhaps most interesting to me is the following statement: “The question as to whether the alleged misconduct accurred while the accused was acting in his piblic, as opposed to his private capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specified duties as created by statute or ordinance.”
Hmm . . . “decided by the trier of fact” . . . and just who is the trier of fact when it comes to impeachments? The Utah legislature.
In short, the two cases provide very little — if any at all — support for Mr. Swallow’s position that the legislature can’t act to impeach unless he’s been charged with a crime. Indeed, it is the legislature’s constitutional obligation to act if they believe further investigation is needed. Any interpretation of legislative authority that requires a decision by someone else (whether a US Attorneys’ Office, a County Attorney, or anyone else) is an interpretation that denies the Utah legislature full authority over impeachments.
Really, John Swallow?
Does Mr. Swallow really expect the legislature to believe that nothing he has done — if it does not lead to the charging or conviction of crime — prior to the time he entered elective office as the Attorney General provides a basis for impeachment? And this coming from the the man who is the primary authority on which people in the state will be charged with crimes?
The arrogance of this position is remarkable.
There are lots of reasons an accused person may not be charged with committing a crime. One, the charging authority may believe that the accused person hasn’t done anything wrong. Or, they may believe he is guilty as sin but lack corroborating evidence. Or, they may have corroborating evidence that may not be admissible under applicable rules of evidence. Or, they may simply determine their limited resources are better used elsewhere. (And who knows this — or should know it — better than Mr. Swallow, our Attorney General?)
For heavens sake, Josh Powell was never charged with or convicted of a crime! Does Mr. Swallow believe that, were Josh Powell serving as our Attorney General he would not be subject to impeachment for murdering his wife? What if Josh Powell had previously been acquitted of murdering his wife, and then, in reliance on the double jeopardy provisions of the United States Constitution had written a book admitting it all? Still no impeachment because he was cleared by the courts? Come on.
There is a judicial doctrine that precludes interpretation of a statute (or a Constitution, for that matter) when it would lead to an absurd result. Here it is.
The evident purpose of our impeachment statutes is to provide for removal from office a person who has violated the public trust.
The United States Constitution.
I think everyone acknowledges that the “high crimes and misdemeanors” language in our Utah Constitution was modeled from the United States Constitution, which states as follows: “The President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
Careful readers will note here that bribery is specifically included in the meaning of the broader term “high crimes and misdemeanors.”
The reference made to “conviction” in the Constitutional language refers to conviction by the Senate in a trial of impeachment. It can’t mean conviction in a judicial proceeding. If it did, that would take the sole authority to impeach out of the hands of Congress (and Hamilton, in the Federalist 65, wrote a lengthy defense of Congressional Authority to impeach).
The authority to impeach – both in the United States Constitution and the Utah Constitution – lies solely with the legislative branch. John Swallow’s self-interested reading of the Utah Constitution would require first either: (1) a decision to charge by the executive branch, or (2) a decision to convict in a proceeding under judicial authority. In other words, it would result in at least a partial delegation of that authority to the other two branches. That’s nowhere in the Constitution. And it turns the principle of separation of powers on its head.
Utah Legislature: Don’t be Intimidated!
What’s John Swallow going to do if the legislature institutes impeachment proceedings? Is he going to file an action seeking to enjoin the legislature from fulfilling its constitutional duty? I mean, not even Nixon did that, right?
Or is he just bluffing?
Well, I still think he’s bluffing. I still think he’s just trying to intimidate the legislature into not acting.
So my message to the Utah legislature is — don’t be intimidated.
John Swallow wants to scare you enough that you’ll decide to wait on the results of an investigation that may or may not result in a decision to charge. He knows that his best chance is for you to wait, for the Salt Lake Tribune and pesky bloggers to get tired of his situation, and cross his fingers that he won’t be charged. Then, if everything works out he’ll claim victory and dare you to try to impeach an “innocent” man.
Do you really want to put yourself in that situation? Because if you don’t commence impeachment proceedings now, there’s a good chance that’s where you’ll be.
Ask yourselves — how much more do you need to know before you start impeachment proceedings?
Hasn’t he already done enough damage to the Attorney General’s Office through his questionable conduct and poor judgment?
The most valuable quality a lawyer can possess is the quality of judgment. It’s ultimately what we like to see in our Attorney General. Yet — even if we assume the very best about John Swallow — he has time and time again, has exhibited extraordinarily poor judgment in acting in questionable ways and then refusing to take any responsibility for those actions.
And now he’s threatening you with a lawsuit if you tre to impeach him. How else do you read this letter? He’s threatening to drag all three branches of the government through messy and uncomfortable legal proceedings to prolong his political career.
The man’s in trouble. And despite the fact that he feels as though he’s been persecuted by people at the Salt Lake Tribune, it’s all trouble of his own making.
Don’t be intimidated.
I posted on Twitter the other day that John Swallow is fully engaged in a game of chicken with the legislature. This just ups the ante. You know everything you need to know about this man. You know that he has shown no respect for his office, for the other branches of government, or, most sadly, for the people who put him them. You know he has bad judgment. You know he places his personal political well-being above the well-being of the people of this state. You know that he has sabotaged the standing and effectiveness of the Attorney General’s office and the attorneys who work there — people for whom I personally have a great deal of respect — and that he will continue to do so to promote his own personal gain.
If you’re worried about setting precedent by acting to impeach, realize you’re going to be setting precedent no matter what you do. Think: What kind of a precedent would you be setting if you didn’t move to impeach? If you waited until Mr. Swallow was charged with a crime you’d be cementing his interpretation as the only available precedent — that the grounds for impeachment are equivalent with the conduct punishable as a criminal offense.
Take the necessary action. Call John Swallow’s bluff. And put this matter to rest once and for all.