The question is not 'Were Shurtleff and Swallow bad attorneys general?' but 'Did Shurtleff and Swallow break the law?'

The fact that two of Utah’s former attorneys general were arrested on the same day for a series of alleged crimes has made national news. The history behind the current travails of Mark Shurtleff and John Swallow goes back a long way and is worth reviewing.

I first heard things were amiss in the attorney general’s office in 2009, after Shurtleff announced he was going to run against me in the Senate race. Lots of people came to me with lots of tales about sleazy things taking place on his watch.

I wanted to make sure that no one connected with my campaign would be tempted, in the heat of battle, to repeat any of them if they were false, so, to guard against that, we hired a researcher to look into the public record to determine what the facts really were. We did find some actions that looked pretty bad, at least on the surface. However, we stopped all further inquiries when Shurtleff pulled out of the race.

But others didn’t. Speculation about alleged improprieties that might have been crimes, gleaned from the same public records we had been examining, began to appear in the press. Once it became known that official investigations by a variety of agencies were underway, there were frequent rumors that legal action against Shurtleff was imminent. I can’t count the number of times during the last four years when I have been told, “Shurtleff is going to be arrested within weeks.”

Then the U.S. Department of Justice announced that it had concluded its investigation and that no legal action would be taken. I assumed the matter was dead, and, obviously, so did Shurtleff.

I believe it was Swallow’s election that brought it back to life. He had not only been Shurtleff’s deputy and then hand-picked successor, but also his closest political ally. The allegations against Swallow set off new investigations into his past and reopened old ones from Shurtleff’s. The state Legislature got into it in-depth, Swallow resigned under a cloud and Shurtleff tried to put distance between himself and Swallow by citing the Justice Department decision not to prosecute him, saying it was proof of his innocence.

It now appears that one reason there have been arrests is that not everyone connected with the federal investigation agreed with the decision to let the Shurtleff matter die. Those who had conducted the investigation — primarily agents in the FBI — seem to have had a different view than those who would have been responsible for prosecuting the matter — primarily attorneys in the Justice Department.

FBI agents in Utah appear to have “gone shopping” for a prosecutor who would pursue it. This assumption is bolstered by comments made by Sim Gill, the Salt Lake County district attorney who filed the charges and who praised the FBI for its help in building the case while chiding the Justice Department for its failure to act on it.

Now, the question is not “Were Shurtleff and Swallow bad attorneys general?” but “Did Shurtleff and Swallow break the law?” Further, in a criminal court (as opposed to the court of public opinion) the test that must be met is “evidence beyond a reasonable doubt.” Given the differences of opinion on that question that seem to have arisen on the federal level, that might not be as easy to achieve as some now suppose.

That’s why putting the case before a jury, where both sides will have the full opportunity to make their cases, is the only way to resolve it. As the trial proceeds, remember — “presumed innocent until proven guilty.”

Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah’s Hinckley Institute of Politics.