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Free for All

A Supreme Court decision casts a shadow over the prosecution of political corruption in Utah.



Utah legislators like to look down their noses at federal mandates, but if any politician on Capitol Hill was concerned that taking gifts in exchange for arranging meetings or sending emails might result in a corruption probe, a new ruling by the Supreme Court of the United States will put their mind to rest. Thanks to the High Court's ruling, your legislator can now take as much money as he or she wants from interested parties—they just can't then sign legislation or commit funding, or other overtly explicit political acts, that directly benefits the giver.

While the Supreme Court's decision has been compared by some legal observers to the Citizen United ruling that determined corporations and unions could spend as much as they want on convincing people who to vote for, as long as they didn't give directly to condidates, for Utah's citizenry the United States v. Robert McDonnell has a far more visceral implication for the state's highest profile corruption scandal.

"It's a legal game changer for alleged bribery and gift counts," says Scott Williams, criminal defense lawyer. And no more so than for his client, former Attorney General John Swallow and the man who was his predecessor in the position of Utah's "top cop," Mark Shurtleff.

For those who have been impatiently waiting for the former attorney generals to have their day in court and answer multiple charges of political corruption, the McDonnell ruling looms large. So much so that Davis County Attorney Troy Rawlings, whose office is prosecuting Shurtleff, expresses concern that it may have "a significant impact" on his case, and could lead to dismissals of at least some of the counts. "It very well may alter the trajectory of that case as we consider the facts and evidence in light of the new legal standard announced by the Supreme Court," he says.

The Supreme Court decision overturned the 2014 conviction of the former Virginia Gov. Robert McDonnell and his wife for taking bribes from Virginia businessman Jonnie Williams. Williams was keen to get their help with securing federal approval of a nutritional supplement his company had developed. To do that, Williams needed Virginia's public universities to undertake studies—a hurdle that federal prosecutors said the governer was helping with.

The unanimous decision, authored by Chief Justice John Roberts, details how McDonnell and his wife received gifts and loans totaling $175,000, which included designer clothes and Rolexes, along with the use of Williams' plane and vacation home. Federal prosecutors alleged that McDonnell had committed "official acts" in the form of phone calls, emails, arranging meetings with government officials and hosting events to support Williams' business agenda.

When McDonnell's attorneys took his bribery conviction to the Supreme Court, the eight justices agreed that the definition of "official acts" was unconstitutional because it was too wide, and narrowed it down to the point where, Roberts wrote, "setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an 'official act.'" The Utah bribery statute is very similar to the federal one McDonnell was prosecuted under, and indeed, is perhaps even vaguer in its definition of "official acts," according to attorney Williams, than the prior federal statute.

While the new standard applies to federal court, Rawlings says it undoubtedly impacts his state case. He now has to assess whether the evidence his office has against the former AG, while prosecutable under Utah's statute against accepting gifts—until now used largely against low-level, low-profile city bureaucrats—will be overturned on appeal because of the federal ruling. He doesn't want to waste taxpayers' money, he says, on a prosecution that can't meet the standards set by the Supreme Court.

For Shurtleff, the McDonnell decision must have seemed bittersweet, given that only three days before it was published, his attorney filed a 400-page motion to dismiss all counts against him, arguing that investigators had failed to produce all the evidence they had which might help Shurtleff defend himself.

The Supreme Court's decision has opened the door for Rawlings himself to dismiss at least some of the charges. Shurtleff's attorney, Rick Van Wagoner, declined to comment on the McDonnell decision, given his client's case was still pending.

While only three of the current seven charges Shurtleff faces relate to the Utah statute against politicians receiving gifts, all seven charges, Rawlings says, relate to "a similar type of generalized theme or conduct, which is improperly using the power of the AG's office in a way that benefits others." While noting that Shurtleff is presumed innocent and may in fact be innocent, Rawlings stated "in essence, while it may be called different names, the allegations all tend to get to the same conduct of public corruption."

That's what has been facing Swallow, too. "The central theme of the attack on John Swallow has always been the allegation of quid pro quo while he was in office," Williams says. "I think it's patently inaccurate, but the extent that these themes in McDonnell resonates with that, then it's an important case to keep in mind." Williams says that as far as his client is concerned, the decision impacts five or possibly six counts.

Asked about the likelihood that he would have to dismiss the charges against Shurtleff, Rawlings says that it would depend on his office's review of the evidence and facts in light of the decision. "If we feel we can't prove the case beyond a reasonable doubt, then the likelihood of dismissal is 100 percent. If, after reviewing the evidence, we feel we can still prove the case legitimately, we will move forward on whatever charges we feel ethically and appropriately survive the analysis of the decision."

Salt Lake County District Attorney Sim Gill, however, takes a markedly distinct position from his fellow prosecutor. While noting he cannot discuss the Swallow case in light of McDonnell, he highlights how the decision relates to federal prosecutions and jury instructions. He is cautious, to say the least, as to the possible implications the decision has for prosecuting political corruption. "To say that because of this decision the door is shut on holding official misconduct accountable, I'd say was premature. And to say it shuts the door on future prosecutions and investigations of such misconduct is an overreach."

Whether or not the Supreme Court decision ultimately results in the former AGs walking away from their cases as free men, the larger question of how the ruling will impact political culture across the United States will linger long after the fate of the two men has been decided.

Minority leader Rep. Brian S. King (D-Salt Lake City) is an attorney and fears that prosecutors already concerned by problems of evidence and politics will now be even more deterred by the ruling to pursue elected officials for bribery or political corruption.

Gov. Gary Herbert's recent comments to lobbyists of being ready to meet with any lobbyist willing to cut his campaign a check, "reinforces the perception that getting access to elected officials is tied to what kind of political contributions a person or group is willing to make," King writes in an email. The McDonnell ruling, he continues, makes it clear that a candidate cannot be prosecuted if he or she seeks a campaign contribution in exchange for access. After all, McDonnell was prosecuted, Williams says, in essence, for what politicians do every day, namely "put people in touch with people. In his testimony, the things he was being said to have done he did a thousand times a day."