SALT LAKE CITY — Prosecutors in the John Swallow criminal case had one of their own witnesses — a former chief deputy attorney general — arrested Tuesday, arguing that he told them he wouldn't be available to testify against his former boss.

A lawyer for Kirk Torgensen called the arrest "outrageous" and said the state overstepped its authority.

Third District Judge Elizabeth Hruby-Mills issued a material witness warrant for Torgensen on Monday. He was booked into the Salt Lake County Metro Jail around midnight after being arrested at the home of a friend, assistant Utah attorney general Scott Reed.

Torgensen, who now lives in Florida, was in Utah for his mother's funeral on Saturday in Cottonwood Heights and burial Monday in Monroe, Sevier County.

The Salt Lake County District Attorney's Office served Torgensen with a subpoena on Saturday to testify at Swallow's felony public corruption trial, which is scheduled to begin Feb. 7.

Prosecutor Blake Nakamura said the arrest was necessary because Torgensen indicated he wouldn't be available. Material witness warrants are typically issued for people who ignore a subpoena to testify or who are at risk of not showing up in court.

"We're taking this matter very seriously and we expect all those involved to do the same," he said. "When we're told we're not going to be here, we take it on face value."

Torgensen, 57, was held in the Salt Lake County jail on $100,000 bail until Hruby-Mills released him after a hastily called hearing Tuesday afternoon. She also ordered him to be present to testify Feb. 8-10 and that the state pay his travel costs from Florida.

Brett Tolman, Torgensen's attorney, said the state "engaged in outrageous conduct which exceeds its authority by employing seven armed agents to arrest one of its own witnesses who was in Utah for the funeral of his mother, and who has been cooperating since the beginning."

Tolman, a former U.S. attorney for Utah, said Torgensen accepted the subpoena to testify and told the state he has a conflict with the trial date but offered several alternatives, including flying back from a planned six-week trip with his son to Guatemala, if necessary.

"I don't think they liked that fact that he had a pre-planned trip," Tolman said, adding it's hard to understand why the state would make the "extraordinary" move of having its own witness arrested and jailed.

"I don't know whether it is insecurity by the government given the difficulty of the case or whether or not it's intended as some sort of message. I think it's a move that could have repercussions in the underlying case that makes me question why you would do something like this," he said after the hearing.

In a court declaration, Reed wrote that Torgensen never indicated to authorities that he wouldn't appear to testify. Before Torgensen was taken out in handcuffs, he "talked at length" over the phone with lead prosecutor Chou Chou Collins about his willingness to appear as long as the state covered his travel arrangements, Reed wrote.

Prosecutors told Hruby-Mills they're willing to make "reasonable" accommodations for Torgensen to be in court.

Witness for the prosecution

Torgensen is among the 50 witnesses prosecutors intend to call in the public corruption case against Swallow.

Torgensen worked as the criminal division chief under former Attorney General Mark Shurtleff and then as civil division chief under Swallow.

Current Utah Attorney General Sean Reyes demoted Torgensen after replacing Swallow, who resigned under fire in December 2013 after 11 months in office. Reyes placed Torgensen on administrative leave after investigators in the Shurtleff and Swallow cases issued a search warrant for his cellphone. Torgensen eventually left the office.

Torgensen had expressed concern about some of the things going on in the attorney general's office, which came out in search warrants that investigators used to seize his cellphone. He also apparently was a target of the investigation himself at one point.

In March 2010, Torgensen sent an email to Shurtleff and Swallow — who then was chief deputy for the civil division — expressing concern about Tim Lawson, Shurtleff's self-described "fixer." Lawson used intimidation and aggressive tactics, mostly behind the scenes, on behalf of the former attorneys general, according to court documents.

"Lawson is the guy that is going to bring down the house of cards," Torgensen wrote.

Prosecutors charged Lawson with multiple felonies, including racketeering, tax evasion, retaliation against a witness and obstructing justice. He died last August before the case was resolved.

Related:

Former top deputy in Utah Attorney General's Office is fired

Utah's Chief Deputy Attorney General Kirk Torgensen was officially terminated from his position on Friday. Torgensen has been on paid administrative leave since April 9.

Torgensen gave investigators examples of text exchanges between him and Shurtleff that apparently related to Swallow.

"I'm pissed about that, the damn stupid things John did," according to one message.

Another read: "I've been convicted by association to stupid things I have nothing to do with."

Torgensen also questioned trips Shurtleff and Swallow took to the posh Pelican Hill Resort at the expense of Marc Jenson, a Utah businessman who the attorney general's office was prosecuting at the time.

“It is shocking that you would go to pelican hills and stay in a 1000 a night suite and golf and go to church with someone your own office had prosecuted. You and no one else gave Jenson the ability to allege nasty things about you and John and now your entire crim div. no one did that but you. Sorry but that is the truth," Torgensen wrote to Shurtleff in a text message.

Shurtleff replied: "Of course I do Kirk. I haven’t once blamed you or anyone else. I will defend myself as to the true facts, but at the end of the day Jenson got nothing but jailed and prosecuted with my strong support. …"

Shurtleff and Swallow were originally charged together on multiple felony counts, including racketeering, bribery and accepting gifts. The cases were later separated and then prosecutors dropped all charges against Shurtleff.

After taking office in 2014, Reyes hired a former federal judge and former U.S. attorney to investigate how the office handled the criminal cases against Jenson. Their report concluded that any misconduct did not extend to Torgensen.

However, they learned during the investigation of Torgensen's "irregular" deleting of emails. They said it wasn't clear whether it was related to the Jenson case or a personal matter.

Torgensen asked his executive assistant to delete emails from his "trash" on New Year's Eve 2011 because his wife had found some "flirtatious" messages he had sent to another woman. The assistant went to the office the next day and deleted the emails, according to the report.

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