Impeachment isn’t the same as Removal from Office

I don’t know if John Swallow’s attorneys are honest (like many people) in mistakenly conflating the opening of impeachment proceedings with the potential outcome of conviction and removal from office or if they are simply perpetuating that misconception in the hopes of protecting their client. Either way, it is once again time to try to clear up that misconception.

The attitude from Mr. Swallow’s attorneys is quite clear in their letter:

“This discussion about impeachment is based on innuendo and unsupported allegations in the press from indicted and convicted felons and a few political enemies of Mr. Swallow,” attorneys Rod Snow and Jennifer James said.

I would expect exactly that attitude from any attorney regarding their own client. The problem is that it misrepresents the situation. Some of the allegations do come from indicted and convicted felons but beyond those indicted and convicted felons the allegations are also coming from many others – not just “a few political enemies.” They may choose to describe everyone who has made allegations as a political enemy but the number of people making allegations can hardly be quantified as “few.”

My real issue with their letter comes from their characterization of what warrants the opening of impeachment proceedings:

“The allegation that media storm and accusations has caused Mr. Swallow to be ineffective in his job do not, in our judgment, provide a basis for impeachment,” the letter says. …

“Unless the legislature want to enter into full-scale investigations of matters already under investigation by federal law enforcement agencies and under the review of the lieutenant governor’s office, the legislature should await the results of those inquiries before considering whether further action is warranted,” the letter states.

Here they are either ignorant or willfully ignorant of what many, including myself, are asking the legislature to do. The implications of what they are saying are clear: it would be unfair to remove Swallow from office based on accusations before we know he is guilty of something and it would be a waste of time for the legislature to duplicate the many other investigations that are in progress.

That all sounds nice on paper but it is a blatant misrepresentation of the facts in two important ways. First, opening impeachment proceedings are not the same as impeaching someone, and even impeachment itself is not the same as convicting someone of anything. (Remember that Bill Clinton was impeached by the House and then acquitted by the Senate. Impeachment simply means that one half of the legislative body has concluded that there is sufficient evidence to warrant a trial by the other half.) The idea that the legislature should not begin impeachment proceedings is the equivalent of saying that the police should not open a criminal investigation on someone until they are sure the person is guilty or that an officer should not conduct a field sobriety test when they seen an open liquor container in a vehicle and smell alcohol on the driver’s breath.

The truth is that rightfully they should open an investigation as soon as they have reason to suspect that the person might be guilty of something. Anyone who argues that there is not enough smoke around the John Swallow to suspect the presence of fire has not been paying attention. His personal attorneys may insist that “in their judgement” he is still capable of doing his job as Attorney General – and I’m sure they are right that he is still capable of signing his name to documents and readings briefs – but that is simply a cover to obscure the fact that regardless of his ability to sign his name, the allegations against him are numerous enough and serious enough to cause reasonable people to doubt his judgement and fitness for the responsibility of his office. The only way to restore that public rust is by a forthright investigation into those allegations. Opening impeachment proceedings is meant to be precisely that forthright investigation.

Second, the legislature would not be duplicating the efforts of existing investigations because the process of impeachment is different from the process of a criminal trial (even if it is similar in many ways). As the Deseret News reported:

…the public is likely to view the start of the proceedings as a signal that the Legislature believes Swallow is guilty of wrongdoing.

Lockhart said that’s not what lawmakers would be saying by launching an investigation using their subpoena powers to collect testimony and evidence.

Lawmakers wouldn’t be duplicating the ongoing criminal investigations by federal, state and local authorities, the speaker said, but looking at whether Swallow committed “high crimes and misdemeanors.”

Those are defined, Lockhart said, as “issues of public trust” as well as violations of the law. (emphasis mine)

The only reason not to convene impeachment proceedings would be if the members of the legislature were confident that the many current investigations into Mr. Swallow’s history would come to nothing and that the public would not have reason to question the actions of their own Attorney General after those investigations were over. I don’t see either of those being reasonable assumptions given the nature and volume of the accusations, let alone both. The only way forward is to have a public investigation into the accusations to either prove them or disprove the allegations against Mr. Swallow.