John Swallow has cleared the last hurdle, the final allegation.
A federal court judge on Friday dismissed a complaint accusing the former Utah attorney general of election fraud.
“We’re finally finished, we think,” Swallow said Friday evening. “This is the last action that the state or government has against me.”
Now, the only case he’s involved with is his action against the state: a lawsuit seeking reimbursement of legal fees involved in his defense against public corruption charges, of which he was acquitted in March 2017.
U.S. District Judge Dee Benson also struck from the federal code the civil regulation under which Swallow was accused.
The Federal Election Commission (FEC) accused Swallow and now-imprisoned Utah businessman Jeremy Johnson of violating the Federal Election Campaign Act’s prohibition on making contributions in the name of others.
Johnson is accused of making about 20 contributions to the 2010 senatorial campaign of U.S. Sen. Mike Lee, R-Utah, and other candidates in the names of other people. Swallow was not accused of making any contributions himself, but of assisting Johnson in doing so. Swallow was initially named a co-defendant with former Utah Attorney General Mark Shurtleff, who was accused of selling his support for money or gifts. The cases were separated, and Shurtleff’s public corruption charges were dismissed in 2016.
“But had I been able to go to trial, I would say I absolutely did not work in concert with Johnson, or encourage Johnson to violate any federal law,” Swallow said. “It’s just not in my nature. I wouldn’t do that.”
He said he and his family are relieved it’s over. Glad that they can finally move on.
“We see this as a complete categorical exoneration,” he said. “I didn’t do what they say I did. I was innocent.”
He called the years of investigation and litigation “crushing.”
“It was unbelievably exhausting,“ he added. “I was sustained by my family and my friends who never left me.”
He said Friday that he’s writing a book about “false allegations, what they’ve done to our society and providing some ideas for people to protect themselves from the dangers of false allegations.”
During arguments before Benson last month, Swallow’s attorneys said that what he is accused of is not illegal.
Benson wrote in his ruling that the case against Swallow “only charges him with secondary liability and that Congress clearly did not include a ban against secondary actors in the [Federal Election Campaign] Act.”
The judge said the FEC “went too far” when it imposed liability under the Federal Election Campaign Act on secondary actors — “exceeding its authority to write regulations and improperly intruding into the realm of law-making that is the exclusive province of Congress.”
The FEC added the secondary liability regulation in 1989, which declared that “no person shall knowingly help or assist any person in making a contribution in the name of another.”
But Benson ruled that the FEC had no authority to write a regulation that went beyond the Federal Election Campaign Act itself.
Benson “deserves a lot of credit for having the courage to strike down what he viewed as an unconstitutional regulation,” Swallow said. “That’s very rare, when judges do that.”
Allen Dickerson, one of Swallow’s attorneys and the legal director of the Institute for Free Speech, said in a Friday email: “The Federal Election Commission’s brazen attempt to supplant Congress was rightly rejected by the court. Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate.
“Today’s ruling is a victory for separation of powers and secures the rights of all Americans to discuss and participate in campaign fundraising.”
The FEC filed the complaint regarding Johnson in June 2014, and Swallow was added to it in 2015.
“I did not do what they say I did,” Swallow said. “I was innocent.”
The FEC said Johnson, at Swallow’s suggestion, funneled contributions to candidates through other people. Under the scheme, candidates for federal offices allegedly got $170,000 in illegal campaign donations in 2009 and 2010.
The funds went to the campaigns of Lee; Sen. Harry Reid, D-Nev.; and then-Utah Attorney General Mark Shurtleff, according to the FEC complaint. Lee’s campaign said in December 2015 that it would donate about $40,000 to several charities this month, giving away funds suspected to have been illegally donated.
All of the money came from Johnson, even though the donations carried the names of his family and friends, according to the FEC complaint.
Swallow was accused of soliciting the contributions from Johnson and then directing him to push the money through conduit contributors in amounts of up to $2,400, the federal cap for individual donations at the time. (The cap is now $2,700.)
In its lawsuit, the FEC asked Benson for a declaratory judgment that the men violated federal election law. Civil penalties in such cases can reach tens of thousands of dollars.
Swallow’s attorneys countered in court papers that the FEC has never accused the former GOP officeholder of doing anything more than give Johnson advice.
They also said their client was was being targeted illegally under the FEC’s “secondary liability” rule.
At last month’s court hearing, the judge pointed out that the regulation says “no person” may make a contribution in someone else’s name. He asked Sana Chaudhry, an attorney for the FEC, how more than one person makes a single contribution.
Chaudhry responded that by engaging in the alleged scheme with Johnson, Swallow helped make illegal contributions.
Trent Nelson | The Salt Lake Tribune Jeremy Johnson leaves the Federal Courthouse in Salt Lake City, Wednesday March 16, 2016.
The FEC case was on hold for a while, beginning in early 2016 while both Johnson and Swallow fought separate and unrelated criminal charges in state and federal courts.
A state jury acquitted Swallow in March 2017 of nine public corruption charges stemming from his time in the Utah attorney general’s office, an outcome that turned, in part, on Johnson’s refusal to testify in the four-week trial.
In that case, Swallow, who served as attorney general from January 2013 to December of that year, is suing the state for about $1.6 million in legal fees involved in his defense, according to documents filed in February in 3rd District Court.
As for Johnson, in March 2016, a federal jury convicted him of eight counts of lying to a bank in connection with his multimillion-dollar internet marketing company. He is serving a federal prison sentence and appealing the conviction.
