Sources close to the attorney general's office told The Salt Lake Tribune that investigators have asked to copy computer hard drives in the office, including Swallow's, and have had access to the office's servers in an attempt to find out who deleted what and when.
The answer to those questions could have major implications for a criminal probe being conducted by Salt Lake County District Attorney Sim Gill, Davis County Attorney Troy Rawlings and the FBI.
"People delete emails all the time. That in itself is not problematic," Gill said. "However, if the deleted emails pertain to ongoing investigations and if those emails were deleted knowing such investigations were afoot, then it would raise the specter of concern, specifically obstruction of justice, not to mention the erosion of public trust."
Gill said he and Rawlings would continue working with the FBI and other investigative agencies and would address any potential criminal violations in the course of their work.
University of Utah law professor Shima Baradaran said the consequences for deleting records, assuming it was intentional, could be severe.
"The potential implications could include criminal charges of tampering with evidence or spoliation [destroying or altering evidence]," she said. "These are both serious crimes both federally and under state law that could lead to penalties, criminal charges, facing prison time or negative inferences in any criminal trial that may proceed."
Under the law, if evidence is destroyed, courts can interpret the lost evidence in the way most favorable to the opposing party.
In January, when The Tribune reported the first allegations of misconduct against Swallow not long after he took office the liberal-leaning Alliance for a Better Utah wrote to the attorney general's office and requested that a "litigation hold" be put on all records to prevent the destruction of potential evidence.
Apparently, no such directive went out until a Sept. 30 email from Brian Tarbet, general counsel for the office, instructing employees not to delete anything that might be relevant to the House probe.
"As the state's top law enforcement officer, Attorney General Swallow should have understood the importance of making sure all records were retained," the alliance wrote Thursday in a news release. "Unfortunately, this casts further doubt not only on Swallow's judgment, but on the ability of any investigation to reach a thorough conclusion. Without those records, the cloud of suspicion remains."
In addition to the probes by the House, authorized in July, and the county attorneys, the U.S. Justice Department acknowledged in January that it, too, was investigating Swallow and had been since last year. The department notified Swallow in September that it would not prosecute him.
Snow says the missing records matter is overblown and that the Republican attorney general did "nothing that would have impacted the investigation."
Last year, state agencies switched their email system from Novell's GroupWise to Google Mail. In the process, Snow said, Swallow noticed some emails from 2010 when his client was chief deputy attorney general that did not make the transition.
Snow said others in the office had the same issue and that Swallow was told to be patient. When the lost emails didn't arrive, Swallow checked again and was told the office's information-technology people were working on it.
"It's that simple," Snow said. "It's not anything John orchestrated or did or had his hands in."
Stephanie Weiss, spokeswoman for the state's Department of Technology Services, said that the transition took place Nov. 12, 2012. At the time, a few accounts didn't transfer correctly, she said, but the issues were resolved.
"As far as we know, everything has migrated successfully," Weiss said. "As far as I know, nothing was lost."
Rob Robertson, chairman of the computer science and information systems department at Southern Utah University and a certified forensic expert, said there are numerous avenues for recovering information deleted from computers.
"Even if they're deleted," Robertson said, "you should be able to get some of those, depending on the environment and whether or not they've wiped the machine."
With GroupWise, the material may be stored on the server and may be archived on hard drives. With Google, he said, investigators would have to subpoena the company, which would have the information backed up on its server.
"I've never been involved in a case that's done that," Robertson said. "But from colleagues of mine, they say it's tough working with these companies to get the emails, but they usually have them."
Committee to meet
The Utah House Special Investigative Committee plans to meet Tuesday at the Utah Capitol to receive an update on the status of the investigation into Attorney General John Swallow.