Did John Swallow talk himself into trouble?
Scandal • Experts differ on whether there is evidence against the new Utah A.G. in doughnut-shop recording.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The parties have heard it. Politicians have heard it. The public has heard it. No doubt, investigators have heard it.

But is there anything in the recording of Jeremy Johnson's doughnut-shop encounter with new Utah Attorney General John Swallow that could put the state's top cop on the wrong side of the law?

Two veteran legal experts differ on that question.

Former U.S. Attorney for Utah Brett Tolman says a transcript of the audio contains information that investigators might want to pursue.

Paul Cassell, a University of Utah law school professor and former federal judge, believes Swallow acquitted himself in the exchange.

Johnson met with Swallow on April 30 at Orem's Krispy Kreme shop in what the indicted businessman describes as an effort to get Swallow, then Utah's chief deputy attorney general, to return money Johnson'sI Works company paid as part of what Johnson believed was an effort to win help from U.S. Senate Majority Leader Harry Reid in fending off a federal investigation.

During the meeting, the two dispute Swallow's role and whether the money was for, in essence, a bribe, as Johnson asserts, or lobbying, as Swallow insists.

"Jeremy Johnson does the majority of the speaking," Tolman says, "but there are some exchanges between the two that I think would be troubling for anyone reviewing it."

Cassell, however, says Johnson, who was secretly recording the conversation, appears to be trying to solicit information he could use to cut a deal with federal investigators.

"My sense of the whole thing is Johnson is trying to set up Swallow and get him to say there was some kind of bribery going on," Cassell says.

"When, from Swallow's perspective and what seems to be the case from what you can tell at this point, it was just a routine Washington lobbying kind of transaction."

Tolman finds several Swallow-Johnson exchanges troubling, including acknowledgments of email traffic and previous conversations about the deal.

Tolman sees it as "an uncomfortable prospect for any government lawyer who's reviewing this, or investigator, to know that a sitting state employee is working so closely with an individual who's been indicted and exchanging emails and phone calls and some effort to get money into the hands of somebody who may be able to influence the investigation."

Tolman was the subject of a critical letter that then-Utah Attorney General Mark Shurtleff sent to U.S. Attorney General Eric Holder. Shurtleff and Swallow were political allies.

Tolman also points to an exchange in which Johnson launches into a story — one he claims not to have told anyone else — about what he believes is a bribe to Reid to introduce a bill to legalize online poker. That story put Swallow on notice of what may have been a crime, says Tolman, who is now in private practice.

"While he's not a prosecutor, he works at the highest level in the Attorney General's Office," Tolman says.

"Is there an obligation at that point that he has a discussion with folks in his office? He may have had an obligation to come forward with some of that information."

Reid's office — like Swallow — has adamantly denied Johnson's allegations.

At one point, Swallow also indicates that it would be OK for him to receive fees for referring Johnson to someone who could help him with the FTC probe.

"Lawyers have rules on whether they can expect any referral fee," Tolman says, "not to mention if you're a senior attorney in the Attorney General's Office, which imposes additional ethical constraints."

Cassell notes his expertise is in criminal law, not ethical violations. He points to exchanges in which he believes Swallow showed he was not involved in Johnson's alleged bribery scheme.

"Johnson clearly has criminal intent," he says, "but Swallow clearly does not."

Cassell singles out a time when Johnson is telling Swallow that both of them know money was not sent to lobbyists, and Swallow says he disagrees with that and adds that he believes the funds were meant to hire a lobby group.

"That's where I think Johnson was trying to get Swallow to say, 'Oh, yeah, we were all involved in bribery,' " Cassell says, "because Johnson can then run and peddle that information to the prosecutors and try to broker himself as a middleman to take down somebody else."

He also points to Swallow's comment in which he acknowledges he might have created political problems for himself but not criminal, indicating, Cassell adds, a lack of a criminal intent.

"Here Swallow says repeatedly he hasn't done anything wrong," Cassell says.

On the other hand, Cassell points out, Johnson says that bribery is the way to get things done in Washington.

tharvey@sltrib.com

Twitter: TomHarveySltrib