Saturday, June 15, 2013

Experts Disagree About Whether Legislature Has Legal Basis to Impeach Attorney General Swallow

Despite the legal obfuscation, here's hoping our state legislature's up to the task at hand

We'll highlight this interesting story concerning Utah Attorney General John Swallow's ever-escalating legal troubles this afternoon from newcomer web heavyweight Utah Political Capitol (UPC), reporting that "John Swallow’s attorneys have sent a letter to the Utah Legislature, claiming that they do not have the authority under the law to impeach him":
Here's the relevant text:
The letter, dated June 5, 2013, points to the Utah code outlining that grounds for impeachment include “high crimes, misdemeanors, or malfeasance in office,” and says that those words directly mean convicted criminal acts.
And here's the full referenced letter,containing Swallow's legal arguments and code citations, such as they are:
So here's the "setup" of this important issue, wherein House Speaker Becky Lochart contends that impeachment proceedings are not limited to convicted criminal acts, Swallow's high-priced lawyers argue just the opposite.

Digging in a little bit deeper, we'll also note that the above UPC article also refers to this June 1, 2013 UPC story, reporting that "Speaker Becky Lockhart has... sent out a mass email to legislators with instructions on how to impeach John Swallow," containing these useful links. The following attachments were reportedly sent with Speaker Lockhart’s above-linked email to legislators, according to the last-linked UPC story.
“High Crimes and Misdemeanors” memo from Legislative Counsel.
“Federalist No. 65″ on impeachment, as written by Alexander Hamilton.
Congressional Research Service – Impeachment Overview.
Congressional Research Service – Various discussions on impeachment.
Comparison of impeachment language between the US and Utah constitutions.
Click to enlarge image
So, the UPC article sets the stage for the upcoming legislative proceedings:
Most legislators and lawyers, to this point, have said that high crimes, misdemeanors and malfeasance in office are not necessarily limited to crimes, but may also include abuses of office, corruption, or unethical behavior which leaves the office unable to complete its duties.

But according to Swallow and his attorneys, impeaching him for unethical behavior is illegal. “[t]he belief than an officeholder is no longer effective, or even proof than an officeholder is no longer effective, is not grounds for impeachment. Removal for such a reason not only violates Utah law, but presents a dangerous precedent that undermines the fundamental principle that the decision of the voters is paramount.”
Here's one more most-excellent web source for your consumption, O Gentle Ones, which demonstrates just how "fuzzy" the rules really are concerning "high crimes and misdemeanor-based" impeachments":
As one above-cited "governmental legal authority" who knows the score said within the last-linked article, however,"impeachable offenses are whatever Congress [i.e. the state Legislature in this instance] says they are."

So once again we'll repeat what we said in our last discussion of the John Swallow impeachment topic:
Sadly, it looks like the State legislature's going to be forced to drag him (Swallow) out of office "kicking and screaming," more or less. Here's hoping our state legislature's up to the task.
So what say you, O Gentle Ones?


Bob Becker said...

What a defense he's embracing. We should call it the Neener! Neener! Neeber! defense : "Maybe you can prove me incompetent and unethical as AG but you can't touch me anyway! Neener neener neener!"

RM said...

Is Swallow going to stick the taxpayers with the bill for his lawyers? Guess I shouldn't ask.

Daniel said...

Swallow once, shame on you...

James said...

lawyers are totally wrong and no impeachment proceeding in this country
has ever used the standard they are trying to impose on the
legislature.....which BTW is also not permissible, since they do not
have legal standing to challenge an impeachment proceeding. Impeachment is a political not a criminal process and he needs to learn to deal with it.

Also threatening the legislature, who are the only people with that power, is just plain stupid strategy on his part.

rudizink said...

Hey, his hot-shot lawyers are billin' by the hour, so what the hell do they care?

AWM said...

I think Swallow's holding on as a favor to Shurtleff to give him time to burn the evidence and move some of the skeletons to deeper graves. Considering Shurtleff was Utah's AG for almost 12 years there's probably a lot of shredding to do

Bob Becker said...

The sub-text here is "try an impeachment and we'll take our constitutional appeal to the state courts, and then the federal courts and tie you up in legal knots for many months, knots what will cost you a small fortune to untie." They don't have to have a winning argument on legal and historical grounds. They just have to convince the legislature that impeachment will not be a quick, clean and cheap surgical procedure, but a long, messy and very expensive one.

blackrulon said...

What I find interesting is the argument by some Republicans that an investigation by the legislature would be expensive. Rep. Ivory just made that claim on Rod Deckers Sunday political show on channel 2. Rep. Ivory had no probles in supporting various bills againt the federal government that legislative lawyers have warned that are going to fail and cost Utah millions of dollars. When did costs ever deter the legislature from pursuing a course of action that is predestinated to fail at considerable cost to taxpayers?

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