swallow attorney letter

7/28/2019 Swallow Attorney letter

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ClyddSnowATTORNEYS AT LAW

Rebecca D. LockhartSpeaker of the HouseWayne L. NiederhauserPresident o f t he S en at eJuly 15, 2013Page 2

has been interpreted by our Supreme Court. The fact that your potential efforts will belegislative as opposed to judicial is a distinction without any significant difference. Thelanguage in the Utah statute for removal of elected officers not liable for impeachment (removedby judicial proceedings) is identical to the language in the Constitution for removal byimpeachment. Clearly, the judicial removal language was adopted from the Constitution so as tonot contradict the constraints imposed by the Constitution. Our Supreme Court has, in itsopinions, made reference to the language in the Constitution. In one particular case an electedCounty Auditor was convicted of failure to file his tax returns - a federal misdemeanor. Thecrime occurred during a prior term of office. The Court found this did not interfere with theAuditor's current term of office and found that removal then was inappropriate.

The impeachment process, including an investigation related thereto, should not be usedto override the decision of the electorate unless a high crime, misdemeanor and malfeasance inoffice, has occurred while the elected official is in office. The mischief of an investigation thatexceeds this constitutional mandate is readily apparent. It opens the door for all types ofinquiries regarding any elected official and could allow the Legislature to not only attempt tooverride the election process, but unduly interfere with another branch of government inviolation of the separation of powers doctrine so fundamental to our democracy. And such aprocess could violate the federal Civil Rights Act, since the Legislature will be acting undercolor of law. These risks seem to make little sense in light of the independent and thoroughinvestigation now well under way by the Public Integrity Section of the United StatesDepartment of Justice. Sparing the expense, trauma and time attendant to such aninvestigation seems to make sense, under these circumstances.

We have noted with interest the RFP sent to many lawyers, both within the State andoutside our State. Three lawyers in my firm have been contacted. Respectfully, we must declinethis opportunity. Moreover, the former Washington, D.C. law firm ofMark Shurtleff has alsobeen contacted and they asked if we might be interested in associating as local counsel - whichprivilege we also declined. If you proceed, we hope you will retain counsel that has the integrity,experience and good judgment not to take an untenable position for political reasons or purposes.Whoever you choose, we look forward to working with them.

Finally, if you are considering what you think might be necessary procedures, werespectfully request you provide for the ability of the Attorney General to subpoena witnesses onhis behalf to test ify and to be present at the taking ofwitness statements or sworn testimony. Wehave little doubt the investigative committee will be interested in the entire truth, even if thescope of the inquiry may exceed the legislative constitutional limits.

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ClyddSnowATTORNEYS AT LAW

Rebecca D. Lockha r tSpeaker of the HouseWayne L. NiederhauserPresident o f t he Sen at eJuly 15, 2013Page 3

Thank you for your consideration of these important matters. We remain available forfurther discussion, if you so desire.

Very truly yours,CLYDE SNOW & SESSIONS

RGS.dh

cc: John A. PearceOffice o f the Governor

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- V pWRodney G. SnowNeil A. KaplanJennifer A. James

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