Utah elections director describes John Swallow as a 'con artist' in new court documents


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SALT LAKE CITY — The Utah elections director says John Swallow seemed like a "con artist" during a state investigation of the former attorney general's campaign finances three years ago.

Mark Thomas' observation appears in documents filed Thursday in the ongoing public corruption case against Swallow. Thomas prefaced his comments about Swallow during a recent interview with Utah Department of Public Safety investigator Scott Nesbitt by saying he had never told anyone that before.

"Mark said he believes that John Swallow was kind of like the con artists who think they are fooling everyone, but everyone can see through it," Nesbitt wrote in an investigative report.

"Mark said it seemed to him that John Swallow was more than happy to go in front of the camera and do the deposition because John Swallow thought he was fooling everyone."

Thomas, chief deputy of the lieutenant governor's office and state elections director, is referring to a videotaped interview Swallow did with attorneys from the law firm of Snell & Wilmer that the Utah Lieutenant Governor's Office hired in 2013 to investigate Swallow for alleged election law violations. The lieutenant governor oversees state elections.

Swallow's lawyer, Scott Williams, contends the state threatened to remove Swallow from office if he didn't submit to the interview and because of that prosecutors shouldn't be allowed to use it in the criminal case against him.

Williams argues that Swallow's right against self-incrimination bars the government from using statements compelled under the threat of losing his position in a subsequent criminal prosecution.

Nesbitt interviewed Thomas and Snell & Wilmer attorney Matthew Lalli in response to Williams' claims.

Lt. Gov. Spencer Cox decided not to pursue a civil complaint against Swallow over alleged election law violations in November 2013 because Swallow had already announced his resignation. His office dismissed most of the allegations but found five instances of probable cause that Swallow broke campaign finance reporting laws.

Cox, however, did make his report available to other investigations for any possible criminal charges.

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Swallow faces a dozen felony and misdemeanor charges, including bribery, falsifying government records, misuse of public money and obstruction of justice. He has pleaded not guilty. A trial is scheduled for February.

A hearing on several pending motions, including one to dismiss charges against Swallow, is set for Friday.

Williams objects to holding the hearing and is pressing for a hearing where he can question Thomas and Lalli about affidavits they filed about the 2013 Swallow deposition. Williams argues that Nesbitt's report of his interviews with Thomas and Lalli undermines the accuracy and completeness of the affidavits.

Williams said Thomas' comments show the lieutenant governor's office wasn't neutral about Swallow. Williams created a new word to describe what the office was doing, call it "inventigating."

Thomas said Thursday that the state gave Swallow a lot of deference during the investigation. Looking back now, he said, the attorney general left the impression that he could talk his way out of things like a con man.

"It wasn't us forcing him to talk to us. He was eager to talk to us," Thomas said. "If you listen to the deposition, he brought up things before we even brought them up."

The state has no power to remove an elected official from office, Thomas said. Only the Legislature can do that through the impeachment process.

Thomas said it's "ridiculous" that Swallow is now claiming the state threatened to force him from office.

Nesbitt wrote that Lalli told him that Swallow's case was handled like any other lawsuit. Swallow was placed under oath for the deposition and had a lawyer with him.

"Matthew (Lalli) said that John Swallow was under threat of losing his job based on the investigation, not based on the deposition," Nesbitt wrote. "Matthew said their job was to make a recommendation as to whether or not John Swallow violated election laws."

Nesbitt further wrote that Lalli told him Swallow voluntarily gave the deposition and no threats were made.

"Matthew said that John Swallow may have felt a threat because of what ultimately could have happened," he wrote.

Williams said that reinforces the defense's position that the charges against Swallow should be tossed out.

"Mr. Lalli's statement to Mr. Nesbitt, though left out of Mr. Lalli's affidavit, squarely support the defense motion to dismiss," he said.

If the state had found that Swallow broke the election code, it could have forwarded the case to court where a judge could have voided the election and declared the office vacant.

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Dennis Romboy

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