John Swallow’s Lost Data

John Swallow’s enjoyed a nice late summer-early fall reprieve thanks to the predominance of national political issues like Syria, the government shutdown, and the Obamacare launch.

But now, thanks to the Salt Lake Tribune and the state legislature, he’s back in the news in another story that makes you scratch your head and ask,” How in the world is this guy still running the state’s top law enforcement office?”  The Salt Lake Tribune reports that the House Investigative Committee’s investigation into John Swallow’s fitness to be A.G. has hit a snag — in the form of numerous missing electronic letters, which include emails, calendar entries, personal and work computer information, and personal cellphone information.  This quote should give you an idea of the scope of the missing records:

According to an affidavit by Andrew Melnick, one of the investigators working for the House committee, representatives of the attorney general’s office notified investigators Sept. 27 that a potentially large volume of Swallow’s official email was missing.

A Sept. 30 email from Brian Tarbet, general counsel to the attorney general, notified all employees in the office to retain any material that might be pertinent to the investigation.

That notice apparently marked the first time such a directive had been issued — despite numerous investigations into the conduct of Swallow and his Republican predecessor, Mark Shurtleff, including one by the U.S. Department of Justice, which acknowledged in January it was conducting such an inquiry.

Subsequent to the House subpoenas, Melnick said, it became clear that a “potentially significant number” of Swallow’s calendar entries from 2009 — when Swallow joined the office as Shurtleff’s chief deputy — to 2011 have disappeared.

In late 2012, Swallow asked for and received new desktop and laptop computers and a new handheld data device. The information on all of the old devices was deleted. At about the same time, Swallow replaced his personal cellphone.

Swallow’s home computer has stopped working. He has provided the hard drive to the committee, which has forensic experts working to retrieve the information.

Seriously?

The Attorney General’s home computer has now “stopped working”?  He replaced all his work computers and cell phone immediately after he was elected attorney general (and shortly before the Tribune broke the Jeremy Johnson story–very shortly apparently, as his home computer crashed in 2013 and the Jeremy Johnson story was first published on January 12, 2013)?  And there are deleted calendar entries from 2009-2011 — the very times the House committee is primarily concerned with investigating?

And what’s John Swallow’s explanation?  Here it is from his attorney (poor man):

Swallow’s attorney, Rod Snow, said Friday that Swallow’s office computers were swapped out sometime in 2012, part of a routine upgrade. The memory on the computers was wiped out and they were given to someone else in the office.

Snow said he had the technical experts his firm works with try to recover data from the machines, but they could not. Nor were they able to retrieve information from Swallow’s home computer, which crashed early this year.

Snow said both the replacement of Swallow’s office computers and the crash of his home unit happened before any investigation had been launched.

“Our view is we hope they recover everything, because they’re not going to find anything,” Snow said. “Exactly how much is missing, I don’t know. We don’t think there’s anything on there we need to worry about. We hope they can recover it.”

Wow, the machines were removed or crashed?  And all the data on the work computers of the state’s top law enforcement officer was simply erased, without, apparently, a second thought??  And it doesn’t look like backups were kept!!!!????  When I was at a larger firm, the backups were done to tape drives, one of which was swapped out and stored off site in case something happened to the office computer itself.  And this is not unusual practice.  It’s normal.  It (or an equivalent) is what many would say is the least a substantial law firm should do to keep in compliance with ethical obligations.  You’d figure that something would be left, right (and I suppose maybe there is and it’s just not coming through in the article)?

Yikes.

I’m pretty confident that our AG’s office would be outraged and would try to bury criminal defendants who came to them with a similar story for obstruction like this in a criminal proceeding.

And let me pause briefly to point out that I find it quite strange that we heard nothing about this from federal investigators . . . .

In my opinion, the whole thing is beyond fishy.  But then you already knew that if you took the time to read through my post, and my opinion doesn’t really matter anyway.

So, rather than just continuing to rant, I thought I’d briefly identify and discuss some potentially applicable laws that would govern this type of conduct, which might actually be helpful or informative to someone.  So without further ado, here are a few I identified this morning (in no particular order):

1. Obstruction of Justice (Utah Code Ann. 76-8-306).  State law prohibits obstruction of justice “with intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense.”  There are two interesting principles involved here.  First, the offense of obstruction of justice, like all criminal conduct, requires some mental state — here it is the “intent” to to obstruct the investigation,  . . . prosecution, conviction, or punishment” of a criminal offense.  In Utah’s criminal code, “intent” is defined as the “conscious objective or desire to engage in the conduct or cause the result.”  Obviously, intent can be proven circumstantially, but since obstruction of justice is a criminal offense, it needs to be proven beyond a reasonable doubt.  Second, obstruction is limited to situations where the conduct involved constitutes a criminal offense.  John Swallow has made a lot of noise about the fact that he hasn’t been charged with a crime and that his conduct may not have been a violation of any criminal law.  I (and many, many others) have been very vocal about why that shouldn’t matter with respect to the standard for impeachment.  But it would appear to matter when it comes to conviction for obstruction of justice.  Because it does not appear to be a crime to obstruct a civil proceeding or an investigation for something other than a criminal offense (although there are other sanctions, as discussed below).

2. Falsification of Alteration of a Government Record (Utah Code Ann. 76-8-511).  Falsification or Alteration of  Government Record is a Class B Misdemeanor and occurs when a person “intentionally destroys, conceals, or otherwise impairs the verity or availability of the information or records, knowing that the destruction, concealment, or impairment is unlawful.”  Again, there is an intent requirement, but the requirement that the falsification or alteration (which includes destruction or impairment) be in connection with a criminal offense is absent — the person must only have knowledge that their falsification or alteration is “unlawful.”  I can’t find where the term “unlawful” is specifically defined in the Utah Code, but in its ordinary meaning, it simply means not conforming with the requirements of law and doesn’t necessarily carry a criminal connotation.

3. Unofficial Misconduct (Utah Code Ann. 76-8-203).  The offense of Unofficial Misconduct is committed when a public official “knowingly withholds or retains from his successor in office or other person entitled to the official seal or any records, papers, documents, or other writings appertaining or belonging to his office or mutilates or destroys or takes away the same.”  The definition is a little ambiguous, but I read it to mean that Unofficial Misconduct occurs when a public official:

  1. Knowingly withholds or retains from his successor in office any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;
  2. Knowingly withholds or retains from an other person (not his successor in office) entitled to the official seal any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;
  3. Knowingly withholds or retains from an other person (not his successor in office or entitled to the official seal) entitled to any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;

I would assume that the House Investigative Committee is entitled, by virtue of its constitutional authority over investigations and accompanying subpoena power, the missing records.  Interestingly, the mental state requirement for this offense is “knowingly,” rather than “intentionally.”  The Utah Criminal Code defines “knowingly” as follows (see Utah Code Ann. 76-2-103(2)):

Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

4.  Stealing, mutilating, or destroying public records (Utah Code Ann. 76-8-411).  This offense can be committed by a “custodian” of government records (in which case it is a Third Degree Felony) or it can be committed by a person who is not a custodian (in which case it is a Class A Misdemeanor).  The term “custodian” is not defined in the statute.  A person commits this offense when they, as to any record “filed or deposited in any public office, or placed in his hands for any purpose,” “steal[s], willfully destroy[s], mutilat[es], defac[es], alter[s], falsif[ies], remov[es], or secret[es] the whole or any part thereof, or who permits any other person so to do.”

5. Tampering with Evidence (Utah Code Ann. 76-8-510.5).  This one is important enough that the relevant portions deserve to be quoted substantially intact:

 A person is guilty of tampering with evidence if, believing that an official proceeding or investigation is pending or about to be instituted, or with the intent to prevent an official proceeding or investigation or to prevent the production of any thing or item which reasonably would be anticipated to be evidence in the official proceeding or investigation, the person knowingly or intentionally:

(a) alters, destroys, conceals, or removes any thing or item with the purpose of impairing the veracity or availability of the thing or item in the proceeding or investigation; or

(b) makes, presents, or uses any thing or item which the person knows to be false with the purpose of deceiving a public servant or any other party who is or may be engaged in the proceeding or investigation.

There you go. No requirement that it be in connection with a criminal proceeding and a relatively soft intent requirement.  This seems to be the provision most applicable to John Swallow’s situation.  If the tampering occurs to obstruct or prevent an “official proceeding,” it is a Third Degree Felony, otherwise, it is a Class A Misdemeanor. An “official proceeding” is defined as a civil trial, administration action, examination under oath, or other civil or administrative process.

6. Spoliation of Evidence.  In normal civil litigation, parties are required to preserve evidence — including electronic evidence — once they know or suspect that litigation over a subject may be forthcoming.  That is, the obligation to preserve evidence does not necessarily arise with the initiation of litigation, it arises when you suspect that litigation may be forthcoming.  If you purposefully destroy evidence, or even if you negligently fail to preserve it, courts can impose sanctions on you, which sanction may include an adverse inference against on the matter for which evidence is no longer available (in other words, the court with decree that you were hiding something and assume the worst).  While we’re not in a court of law, obviously nothing would stop the House Investigative Committee from making such inferences in its investigation.

As I’ve said before, we already know all we need to know about John Swallow’s character and competency as it relates to his fitness as Attorney General.  He’s refused to do the right thing and resign, and, as a result, forced an official legislative investigation, which he claimed to have welcomed.  Now he’s either intentionally sabotaged the investigations into his conduct or is guilty of gross negligence regarding the preservation of records.  It’s beyond time for him to go.

I for one, am glad to see the House Investigative Committee is conducting a serious investigation and holding his feet to the fire.

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About Curt Bentley

is an attorney practicing commercial litigation, non-profit law, and intellectual property law in Utah at his firm Bentley Briggs & Lynch. In his spare time, he attempts to impersonate a jazz pianist, gardens, and dodges rattlesnakes and stirs up other trouble while running on Utah's amazing trails.

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