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Lawyers for former Utah Attorney General John Swallow seek the dismissal of three bribery counts, arguing that the state's bribery statute is unconstitutional under a recent U.S. Supreme Court decision.
Swallow's attorneys also have filed a motion requesting a hearing to determine whether prosecutors improperly used Swallow's compelled statements made while he was under threat of losing his job to bring charges against him.
Swallow has pleaded not guilty in 3rd District Court to 14 felony and misdemeanor counts alleging public corruption, which could land him in prison for up to 30 years if he is convicted. A trial is set for February.
The motion to dismiss the three counts of bribery is based on a June ruling in which the U.S. Supreme Court overturned a conviction against former Virginia Gov. Bob McDonnell, who was accused of hosting events and setting up meetings to benefit a pharmaceutical company whose CEO provided personal gifts. The court limited in bribery cases the types of "official acts" that can be considered illegal for a government official to provide in exchange for favors. The court held that workaday government actions, such as holding meetings, do not qualify; prosecutors must show a more specific exercise of government power, or else the threat of criminal charges could hamstring government officials from responding to constituents' legitimate concerns and needs.
Utah's bribery statute does not specify that the promised action must be governmental, defense attorneys argue, and it may be invoked even if officials in reality can't take the actions they promised for instance, if they haven't assumed office or lack jurisdiction.
"If it does not have to be an official action or decision or recommendation, could it be as innocuous as receipt of a coupon influencing a 'decision' to purchase a particular brand of diapers for the baby? Yes," the motion states.
In a separate motion, Swallow's attorneys argued that prosecutors used statements Swallow made in an investigation by the lieutenant governor's office, in which Swallow "was informed there was cause to remove him from office and that unless he could prove otherwise, he would be removed." Those statements appeared in search warrant affidavits and were used by prosecutors to decide whether to charge Swallow, attorneys say, violating his Fifth Amendment right not to incriminate himself. They have asked for a hearing to review those arguments.