I've told John directly, 'If the facts meet the law, you need to go. John's a friend. But we've sworn an oath and have a duty. —Rep. Ken Ivory, R-West Jordan
SALT LAKE CITY — Lawyers for embattled Attorney General John Swallow are warning that his constitutional rights would be violated if Utah House members attempt to impeach him.
The June 25 letter from Rod Snow and Jennifer James went out before legislative leaders released a resolution for Wednesday's special House session called to create a committee to investigate the attorney general.
The House resolution spells out that the committee can investigate allegations against Swallow from as far back as 1990, when he was admitted to the Utah State Bar, that relate to his "fitness to subsequently serve as deputy attorney general or attorney general."
But Swallow's attorneys say that while they aren't suggesting Swallow did anything to warrant impeachment before taking office in January, a state official can only be removed for conduct that occurs while in office.
"To our knowledge, there is not a single act that has been alleged or rumored in the media that involves any conduct on the part of Attorney General Swallow while serving as the attorney general," the letter states.
"Therefore, any impeachment attempts would violate the Utah Constitution and the attorney general's federal and state constitutional rights," the letter concludes after citing a Utah Supreme Court case.
The letter is the second from Swallow's attorneys to legislative general counsel John Fellows. An earlier letter calling impeachment unwarranted was sent before lawmakers decided to go forward with an investigation.
House Republicans went ahead and decided to begin an investigation but not as part of impeachment proceedings. House Speaker Becky Lockhart, R-Provo, called the committee "the will of the people as expressed through their representatives."
Not all members of the majority GOP in the House wanted to launch a probe.
Rep. Ken Ivory, R-West Jordan, tried unsuccessfully to get his fellow Republican representatives to wait to start a legislative inquiry, citing concerns about the ongoing federal, state and local investigations into Swallow, as well as cost.
On Monday, Ivory said he will try to influence what standards the committee uses to judge Swallow's behavior.
"We should measure twice before we cut, right? Let's know our standards," he said, including the burden of proof and scope of the investigation.
"In something of this magnitude, we need to be very circumspect and make sure we get it right," Ivory said, since this will be the first such investigation by Utah lawmakers and set a precedent.
Ivory said it is possible Swallow could end up being impeached.
"It may very well go there. I've told John directly, 'If the facts meet the law, you need to go,'" the representative said. "John's a friend. But we've sworn an oath and have a duty."
Still, Ivory said, the problem with the investigation is that it is not clear what the law states about what Swallow would have to do in order to be impeached.
"Shouldn't we know that before we write a blank check?" he asked.
Democrats, who are in the minority in both the House and the Senate, were the first to call for an investigation into Swallow. Now, Democrats are calling for equal representation on the committee investigating Swallow.
"It's not fair. It's a kangaroo court," said Utah State Democratic Party Chairman Jim Dabakis, who is also a state senator. If the investigation leads to the House impeaching Swallow, it would be up to the Senate to pass judgement on him.
Dabakis said the investigation is more than just a look at what Swallow did or didn't do.
"It's an assurance to the people of the state of Utah that their elected officials can be fair," he said.
Swallow is being investigated by the U.S. Department of Justice Public Integrity Section and both the Salt Lake and Davis county attorneys in connection with his dealings with indicted and imprisoned Utah businessmen.
There is also a special counsel being appointed by the Utah Lieutenant Governor's Office to examine alleged election law violations. Swallow has said repeatedly he has done nothing wrong.