The “I”-Word: Utah’s Attorney General and the Truth About Impeachment

Impeachment.

There, I said it.

The drip-drip-drip of reported scandal and corruption coming out of the Embattled Attorney General’s Office has turned into a full-blown fire hose.  Normally, I would provide convenient links to the articles discussing the alleged scandals here, but frankly I just don’t have room for all of them (although here is a convenient timeline with references to several articles). Let’s just agree that anytime the F.B.I., the Department of Justice, the Salt Lake County Attorney, the Davis County Attorney, the Lt. Governor’s office and the Utah Bar are investigating you, things are bad.  Also, if people feel an inherent need to constantly record conversations they have with you, you are probably doing it wrong.

For months now, I have felt the need to do something, to say something, anything. Look, I get it.  I am a freshman legislator…even worse, a RURAL freshman legislator…and I know my place. However, the truth is that I have as much experience with impeaching an Attorney General as anyone else in the legislature.  Fortunately, I was attending law school during the Clinton impeachment—AND I stayed at a Holiday Inn Express last night—so I am pretty much an impeachment expert.

The Embattled Attorney General, John Swallow

The Embattled Attorney General, John Swallow

You have probably noticed that the “I”-word has been completely off limits for anyone in political office.  Apparently, if asked, I am supposed to say, “I believe that the Attorney General is innocent until proven guilty.”  Either that, or “we just need to wait and get all the facts.” My personal favorite is the line that keeps coming from the Attorney General’s own spokespeople: “The Attorney General has not broken any laws and has no plans to resign/should not be impeached.”  Really? That’s the best you got? That is the standard for the top law enforcement official in the state? Remember, these are all very good attorneys and words matter.  I am not a PR specialist, but every time I hear that line it sounds like they are saying, “The Attorney General has done some really, really, really, bad things, just probably not technically committed a crime.”

But I digress.  One of the most frustrating things about listening to the talk about impeachment (or the reasons we should NOT talk about impeachment) is the general lack of understanding regarding the purposes and procedures surrounding impeachment. Let me state unequivocally that impeachment is an incredibly serious and sacred matter that cannot be taken lightly.  As such, I understand that many of my colleagues will be hesitant to begin the process—NOT because they want to protect Swallow—but because there will inevitably be grave political and historical implications.  Oh, and also because it will likely cost between $2 and $4 MILLION dollars.  Caution is critical.

First things first.  Of course I believe that the Attorney General is innocent until proven guilty in a court of law.  The Founders could have easily said, “if an office holder is convicted of a crime in a court of law, the office holder shall be removed from office.” They didn’t.  As such, impeachment must mean something different than “just removing someone from office who has committed a crime.”  In fact, correctly understood, impeachment proceedings become our profound duty in order to restore the public trust by either, (1) proving the allegations and removing the officeholder, or (2) absolving the person from wrongful allegations.  For the rest of this post, I hope to set the record straight and clarify many of the what’s and why’s of impeachment.  While I do not want to turn this in to a lengthy legal article, I highly recommend you read this and download this (the Edwin Brown Firmage piece) both very excellent and detailed histories of impeachment leading up to the Nixon resignation.

1)   The Real Purpose of Impeachment.  Any study of impeachment in the United States quickly reveals that the true purpose of impeachment has never been to punish the offender, but instead to preserve the public trust and protect the integrity of the office. Alexander Hamilton summarized it this way:

[Impeachment is appropriate for] those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.[1]

The first question that must be asked, then, is whether there has been a violation of the public trust.  The AG’s Office has become the butt of every political joke and an embarrassment to some of the best public servants we have. You know things are bad when the Attorney General is the only statewide elected official that declines to speak at the Republican State Convention.  I don’t need a poll to tell me that the public has lost faith in the integrity of the Office, I hear it every day.  While we should never throw someone out of office based on hearsay and media reports, impeachment proceedings are specifically meant to restore the public trust.  Furthermore, saying that a person supports impeachment proceedings is NOT the same as saying the Attorney General must be impeached.  If we are not already there, we are rapidly approaching the point where the only way to restore that trust will be to absolve the Attorney General from any wrongdoing or to remove him from office.  And, the only way to do that will be through impeachment proceedings.

2)   Impeachment is the Only Means to Investigate:  Some have argued that we must wait for all the facts before beginning impeachment, however, that is not the way the process generally works. Under Utah law, any of the 75 members of the House of Representatives can file an impeachment resolution.  The Speaker may then conduct a poll of the members, with a 2/3 majority necessary to convene.  Once convened, the House then adopts Policies and Procedures (by a majority vote) outlining the impeachment process.  Then, and only then, does the House have the opportunity to appoint a committee or special counsel to investigate the allegations against the officeholder.  After the investigation, the House then votes on whether it believes there is enough evidence to continue (known as the Articles of Impeachment, similar to an indictment).  If a 2/3 majority believes there is sufficient evidence, the Articles of Impeachment are sent to the Senate.  The Senate then listens to the allegations and evidences brought by the House and determines if the person should be removed from office.

In essence, whenever serious allegations are brought against a political officeholder, the House Of Representatives is tasked with acting as the prosecutor and the Senate acts as the judge and jury.  This distinction is critical.  While the Senate indeed has a duty to remain impartial and wait for the facts, the House has a duty to investigate and act as the factfinder. And—stay with me here—the only way that the House can investigate (with full subpoena power and everything), is to begin impeachment proceedings!

You can see why I am less inclined to wait for the results of a federal investigation…because….you

The House of Representatives must begin Impeachment Proceedings to Investigate Allegations

The House of Representatives must begin Impeachment Proceedings to Investigate Allegations

know…we always trust the Federal Government to handle responsibilities specifically mandated to the Legislature by the State Constitution (if only they made a sarcastic font).  I readily admit that it would be easier to begin impeachment proceedings if there were criminal charges pending.  Unfortunately, the feds are under no time constraints and have not expressed any interest in sharing their investigation with the legislature.  However, if we can receive assurances from any of the investigations that some sort of resolution will be forthcoming in the next few months, I think most of us would be willing to wait. There is clearly a danger that, if impeachment proceedings begin now, many potential witnesses will simply exercise their Fifth Amendment rights against self-incrimination and refuse to testify.  Although this possibility exists, as lawmakers we cannot use this as an excuse to never move forward when faced with lasting damage to the Office and a crippling erosion of the public trust.

3)   High Crimes and Misdemeanors:  There is a common misperception—purposefully exacerbated by the Attorney General’s own spokespeople—that an officeholder can only be impeached for criminal misconduct.  Let me be clear, criminal standards and impeachment standards are VERY different.[2]

According to the Utah Constitution, Article VI, Section 19, “The Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office; . . . .” Unfortunately (or perhaps fortunately), we do not have much precedent for defining “high crimes, misdemeanors, or malfeasance” in the state of Utah.   However, because Utah is one of only 7 states to use the same “High Crimes and Misdemeanors” phrasing found in the U.S. Constitution[3], we have hundreds of years of precedent to guide us.  Furthermore, because impeachment is constitutionally vested in the legislative branch, courts have generally declined to interfere or second-guess the legislative branch on the meaning and scope of these terms.

The most common misunderstanding with impeachment surrounds the terms “high crimes or misdemeanors.” Surprisingly, this standard has virtually nothing to do with “crimes” or “misdemeanors,” in the traditional sense.  Instead, this is a term-of-art that carries back to old English Law and does not refer to specific criminal conduct (although criminal conduct is certainly grounds for impeachment).  Perhaps the best summary of “High Crimes and Misdemeanors” as impeachable offenses comes in 1833 from Justice Joseph Story in his seminal Commentaries on the Constitution (emphasis added):

Not but that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.

Outside of possibly the Attorney General himself, I believe there is universal agreement that, if the allegations prove true, removal from office is a sure thing.  However, even if we simply accept the admitted “lapses in judgment,” together with recorded conversations, pictures, emails and receipts now publicly available, there have been strong arguments advanced showing a pattern and practice of “personal misconduct,”  “gross neglect,” or, at the very minimum a “habitual disregard of the public interests.”  A careful review of the evidence already made public will be critical in the decision-making process for legislators.  As such, in my next post, I will attempt to systematically combine and categorize the evidence that has been presented in order to distinguish between fact and allegation.

Look, I must be honest.  I would like nothing more than for the Attorney General to resign.  I know it made news last week when a member of the legislature called for resignation.  However, the truth is that virtually EVERY elected official I have spoken with feels the same way.   While I can at least understand the Attorney General’s refusal to resign, I cannot understand why he will not consider paid administrative leave.  Doing so would allow an immediate restoration of trust in the Office, give the Attorney General an opportunity to focus on defending the investigations against him and save the state the pain and significant ($2-$4M) expense of an impeachment proceeding.  This seems like a no-brainer. Unfortunately, in a show of incredible disregard to the citizens of Utah, the Attorney General’s spokespeople have also dismissed this as a possibility.

As such, the time for serious impeachment discussions has arrived.  I am pleased to see that, just yesterday, Republican Leadership in the House announced that the June 19th caucus meeting will focus solely on the impeachment issue.  If somehow, political reporter Robert Gehrke and his evil minions at the Salt Lake Tribune have conspired with criminal masterminds, the former director of the Utah Division of Consumer Protection, and several others to undermine the Attorney General, then we have a duty to investigate and absolve him so that we can remove the “Embattled” title and restore public confidence.  However, if this is the work of a narcissistic, habitual office-seeker, who cares nothing about the public trust and will do anything to remain in power, we have an obligation to remove that person from office. Let the conversation begin.

 


[1] THE FEDERALIST NO. 65, at 423–24 (Modern Library College ed. 1937) (A. Hamilton).

[2] “Impeachments… come not… within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims, and are directed to different objects: for this reason, the trial and punishment of an offence on an impeachment, is no bar to a trial and punishment of the same offence at common law.” James Wilson, Collected Works p. 452 (1804)

[3] The term “maladministration” was specifically rejected by the founders under arguments that it was too vague and would leave the President subject to the whims of the Senate.  While “malfeasance in office” is a different standard, it would appear to be something less than “high crimes or misdemeanors.” While I do not spend much time on the “malfeasance in office” term, it has been suggested that the Attorney General’s legal team will argue it cannot apply since most of the alleged misconduct took place prior to his election.  I disagree.

24 Responses to “The “I”-Word: Utah’s Attorney General and the Truth About Impeachment”

  1. Daniel B. May 31, 2013 at 11:36 am #

    A very thorough and well-reasoned argument, Mr. Cox. Thanks for taking the time to reason out and evaluate the arguments for and against impeachment.

  2. Terri Holland May 31, 2013 at 1:10 pm #

    It does not take a trial or any more information to realize that Mr. Swallow is not fit to represent his constituency. He forceful and despicable refusal to put the best interests of the state ahead of his own personal agenda speak volumes about his character. I agree, he is not guilty until the court says he is – but these matters transcend courtrooms and carefully parsed phrases. The good people of Utah deserve a representative in this capacity who is above reproach – not someone mired in one scandal after another – day in and day out.

    Mr. Swallow should resign saving all of us the time, hassle and money to impeach him. Since he clearly has no intention of doing so, we must impeach regardless the cost – and send a message to men like him and his cadre of immoral public leaches that we no longer condone business as usual anymore. We deserve better

  3. Mike May 31, 2013 at 2:34 pm #

    The dictionary defines impeachment as charging someone with a crime. The senate.gov website indicates that impeachment may be advised if an official commits a crime or acts improperly.
    We all know that partisans will accuse the other side of acting improperly, and in accordance with the American principle of due process, (and fairness), we should refrain from POLITICAL ASSASSINATIONS and follow a principled approach to removal from office.

    • Daniel B. June 5, 2013 at 8:25 am #

      Mike, you’ve got it wrong.

      Impeachment is NOT to be charge with a crime, but merely to bring charges. Under the Utah constitution, those charges may be for high crimes, misdemeanors, or malfeasance, which standard means the loss of public trust and which may include, but is not limited to, criminal behavior. Even judging Swallow by his own admissions, and not the unproven allegations against him, he has violated the public’s trust by his deceptive campaign finances, his violation of attorney client privilege, and the slew of documented dealings with indicted individuals.

      For more on the definition of impeachment, please see http://hollyonthehill.com/high-crimes-and-misdemeanors/

  4. utah_1 May 31, 2013 at 10:21 pm #

    Based on everything I have seen, the item that could bring our AG down is still 76-8-109. Failure to disclose conflict of interest. (4).
    If you fail on (2) based on (5) it is a class B. (4) doesn’t list a penalty as it is designed as a protection against being charged with a Class B.
    http://le.utah.gov/code/TITLE76/htm/76_08_010900.htm

    It is my opinion that John was told by some attorney or political advisor not to disclose P Solutions on the March 9, 2012 version of the form. He changed management to his wife and re-filed the form on March 15, 2012, again not disclosing the company for himself or his wife and then did the same thing on his Jan. 10, 2013 form.
    http://disclosures.utah.gov/Search/PublicSearch/FolderDetails/1411310

    Since possible violation of 76-8-109 (4) carries no defined penalty, he would have to be shown to be intentionally lying on the form, I believe, to get in trouble with violating the law. I believe 76-8-109 (4) should carry a penalty, (the law changed) since the protection against 76-8-109 (2) wasn’t enough for disclosure.

    The other really bad claims have been made are against Mark Shurtleff and not John Swallow. If Mark were still on office, the $2 M recent charge would likely sink him. If guilty, I believe Shurtleff should be convicted and serve time. I don’t have that clear of reason for John Swallow at this point.

    If I were on the Judiciary committee, I would have a bill request in place re: 76-8-109. Failure to disclose conflict of interest. (4), and I would have Mr. Swallow speak to the committee re: the law. Depending on his answers to questions, a recommendation to poll the House for impeachment could be recommended. He should be given a chance to defend himself.

    [Update: This recent claim is pretty damaging: "Jenson says Swallow was also present in 2009 when Shurtleff asked Jenson to pay $2 million to another businessman, Darl McBride, in an attempt by Shurtleff to take down a website critical of Mark Robbins, Jenson’s former business partner."]

  5. Lincoln Shurtz June 2, 2013 at 6:00 pm #

    Great piece. Very well reasoned and thorough. Thanks for the insight.

  6. Steve Urquhart June 3, 2013 at 6:53 am #

    Good work, Spencer. I love the smart, even-handed, passionate approach you bring to the job. We’re fortunate to have you in the Legislature.

    • Spencer June 3, 2013 at 7:44 pm #

      Thank you, Senator, for your kind words and leadership. It has been an honor to work with, and learn from, you.

  7. mom in mendon June 3, 2013 at 7:51 am #

    Mr. Cox,
    Thank you for your expertise and insight in this informative and readable post. (Found your blog on recommendation of Sen.Steve Urquhart,)

  8. Utah_man June 4, 2013 at 5:32 am #

    Everyone talks of impeachment but the real problem is that the citizens are having to wait on our representatives to act.

    Utah is only one of a handful of states that does not have a recall election ballot provision.

    The simplest answer here is that we have a public employee whose actions have rendered him ineffective in the job and short of him resigning or going through the impeachment process, we have no way to remedy the problem in a timely matter.

    I would ask you Spencer to stand up and get a recall ballot on the agenda so that when things like this come up, the citizens also have a voice because whether or not Swallow or anyone else is guilt or not, we should have the right to :fire: someone, No different than anyone else in the public sector.

    If you can’t do your job effectively you need to go. Swallow is incapable of doing his job right now, it is affecting his department and other employees and we are forced to live with him regardless of the impeachment proceedings which may or may not happen. Effectively, there is no way to remove him from office.

    Lets fix the real problem here and give the citizens the right to “remove” someone who is not performing without having to wait for a new election or our “representatives” to dance around the issues until they go away.

    Spencer, You seem like the type of person who will do the right things regardless of the peer pressure, so how about taking this recall election question up as well and give the citizens the right to act when these kinds of issues arise. Especially since the rest of the country agrees as the vast majority have this type of provision in their respective states.

    Thanks!

  9. Brian June 4, 2013 at 1:12 pm #

    Bravo. Well-written article about the facts as they are currently known. But I don’t expect much to come of this. Business/politics as usual. As was pointed out, it is indeed a shame we don’t have a recall election ballot provision.

  10. adano June 5, 2013 at 2:52 pm #

    You say the House is the prosecutor and the Senate is the judge and jury. Wouldn’t it be more accurate to say the House is the Grand Jury and the trial jury?

    Unrelated, but it’s really hard to read light gray text on a white background. Really, really hard.

    • Spencer June 5, 2013 at 3:02 pm #

      Good distinction. Part of that depends on the procedures adopted by the House. Likely, a committee will be formed that will act as the prosecutor and then recommend articles of impeachment to the full House. At that point, the House would then act as a Grand Jury to forward the articles (i.e. indictment) to the Senate. I will try to get my ask my web admin to change the background. Thank you!

  11. Rudy Tsuchiura July 15, 2013 at 8:33 pm #

    I am so glad I stumbled upon your site. I really found you by mistake, while I was browsing on Google for something else. Anyways I am here now and would just like to say thank you for a great post and an all round inspiring blog. (I also like the theme/design), I don’t have time to read through it all at the minute, but I have added your website to my favorites, so when I have time I will be back to read more. Please do keep up the awesome job!

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