Evidence tampering? • Swallow's allies say he wasn't aware beforehand, but recording may suggest otherwise.
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In the case of the missing emails dogging the investigation of Utah's embattled attorney general, two new questions are arising:
What did John Swallow know about any federal investigation? And when did he know it?
The Republican attorney general's lawyer and spokesman have stressed that the disappearance of the electronic records happened before Swallow was under investigation or at least knew he was under such scrutiny.
"No one saw this coming," Swallow's attorney, Rod Snow, wrote in an email. "It is when documents start disappearing after an investigation commences, and you are aware of it, that should raise suspicions. That is not the case here."
But a recording of a meeting with businessman Jeremy Johnson at an Orem doughnut shop indicates Swallow may have seen a probe coming as far back as at least April 2012.
During that meeting at Orem's Krispy Kreme, Swallow, then Utah's chief deputy attorney general, and Johnson whom Swallow helped arrange a deal aimed at resolving a federal probe of Johnson's I Works business both alluded to inquiries by federal investigators.
At one point, Johnson, who secretly recorded the conversation, told Swallow the feds were pushing him to provide information about a certain unnamed public official.
"It's gotta be me," Swallow told Johnson.
Later during the conversation, Swallow said that he didn't retain his emails.
"I don't keep my emails," Swallow said.
"OK, good. I wish I didn't keep mine, either, believe me," Johnson replied.
"I've deleted them all after a year," Swallow replied.
In October 2012, after Johnson told Swallow's GOP predecessor, Attorney General Mark Shurtleff, of his chief deputy's role in helping Johnson with the Federal Trade Commission investigation of I Works, Shurtleff went to the U.S. attorney's office and the FBI with that information.
But Swallow spokesman Paul Murphy said Monday it's "just not true" that Swallow believed after the Krispy Kreme meeting that he might be under investigation.
"Jeremy Johnson tried to pressure John in order to get money and scare him into thinking there was a federal investigation," Murphy said. "At the time, nobody thought there would be an investigation because nobody would believe Jeremy Johnson."
Under Utah law, a person could be charged with tampering with evidence even if he or she wasn't the target of an active investigation at the time. It is unlawful to delete or alter such information if a person believes an investigation is pending or "about to be instituted."
The time frame in which the records went missing matters only if the material was intentionally deleted something House investigators seeking the lost data do not allege. And Murphy says emails from 2010 were lost when the state changed systems.
Murphy said that when state agencies transitioned from GroupWise to Google in November 2012, none of Swallow's emails from 2010 made the transition.
About 3,500 emails from the period have been recovered, Murphy said. It's unknown how many have been lost. He said that all of Swallow's emails from 2011 and 2012 successfully migrated to the new Google system.
In a court filing Friday, attorneys for the House Special Investigative Committee examining allegations of misconduct against Swallow said that, in addition to a "potentially large number" emails that are gone, data from Swallow's state-issued laptop and desktop computers, handheld data device and home computer also appear to be missing.
Murphy said no other files, to his knowledge, were lost when Swallow asked for and received a new state-issued laptop and desktop in late 2012.
Joe Pyrah, the House's chief deputy, said investigators were told that information-technology staffers for the attorney general's office did not move any files to the new computers after Swallow told the IT workers that the transfer had been taken care of.
The hard drives on the old computers were wiped clean and given to others in the office, according to the House's court filing.
Attorneys have asked the 3rd District Court to grant the House access to copies of computer hard drives and servers in an attempt to recover files missing from Swallow's email account and computers.
Murphy said the attorney general's office doesn't plan to resist the House's efforts and would file a response soon agreeing to an expedited hearing on the matter.
"Our office actually recommended to the legislative investigators that they file a court document to have the court intervene to help deal with the state and privacy issues with those emails," Murphy said. "We aren't going to oppose their motion, but we are going to file our own motion that we think will clarify how the records ought to be handled."
At issue: private health data that may be housed on the servers. Releasing that information could violate federal privacy laws.
The issue of the missing data came to light in late September, when House investigators were notified of the gaps. A few days later, Brian Tarbet, general counsel to the attorney general, sent an email to employees in the office not to delete information that might be pertinent to the investigation.
By the time Tarbet sent his email, Swallow had already been under investigation for at least nine months.
The Justice Department confirmed in January that it was investigating. In September, the department notified Swallow and Shurtleff that it would not charge them. The top prosecutors from Salt Lake and Davis counties, in conjunction with the FBI, are continuing to investigate whether Swallow or Shurtleff broke any state laws.
The House committee will meet Tuesday morning, and Chairman Jim Dunnigan, R-Taylorsville, expects a discussion of the missing information and the recovery efforts.
Committee to meet
The Utah House Special Investigative Committee is scheduled to meet Tuesday at 9 a.m. at the Utah Capitol to receive an update on the missing electronic records in the probe of Attorney General John Swallow.