In a June 5 letter to the Legislature's main attorney, Swallow lawyers Rod Snow and Jennifer James said that because the embattled attorney general has not been charged with a crime, and because the allegations against him involve activities before he took office in January, impeaching him would violate the Utah Constitution.
"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," the attorneys wrote.
For instance, regarding allegations by indicted businessman Jeremy Johnson that Swallow in 2010 had offered to help Johnson derail a Federal Trade Commission investigation of his business, the letter noted, "it is not a high crime or malfeasance 'in office' to have associated with Johnson."
In a separate June 18 letter to lawmakers, Swallow made similar arguments that accusations of behavior before he took office were not relevant to an impeachment proceeding. "It is worth noting," Swallow wrote, "that there have been NO [sic] allegations of wrongdoing during the time I have been attorney general."
But some lawmakers have dismissed the arguments that they should look only at actions while Swallow was in office even in their special investigation before determining whether the House should launch formal impeachment proceedings.
And Lockhart's draft resolution clearly rejects the time constraints advocated by Swallow.
It outlines broad permission for the panel to investigate allegations against him while serving as attorney general, as a candidate for the office, when he served as deputy attorney general to then-Attorney General Mark Shurtleff and even as long as 23 years ago, when admitted to the Utah State Bar, if the activities relate to his "fitness to subsequently serve as deputy attorney general or attorney general."
Snow on Friday called the broad scope of the probe "inappropriate" and said it "flies in the face of the Constitution."
The nine-member House panel envisioned in the draft resolution would include members of both parties, though "the ratio is yet to be determined," according to Joe Pyrah, chief deputy of the House.
House Minority Leader Jennifer Seelig, D-Salt Lake City, has argued that it is crucial that the committee, like the current ethics panel, have equal representation from Democrats and Republicans.
Utah's Democratic Party echoed that sentiment Friday night, pointing to a Connecticut investigative committee with 10 members, five from each party. "We can and should follow their lead," the party's executive director, Matt Lyon, said in a statement.
Lockhart, R-Provo, would designate one of the nine members to serve as chair, and that person would determine the committee's schedule and frequency of meetings.
The resolution includes no time frame for the completion of the investigation, although the committee's authority would run through Dec. 31, 2014.
Dan Harrie contributed to this report.