The U.S. attorney's office said Thursday that it was obligated to obtain information that indicted St. George businessman Jeremy Johnson gave, under an immunity agreement, to county prosecutors in their sweeping corruption investigation of two former Utah attorneys general.
The move by the U.S. attorney's office to seek that evidence so frustrated Davis County Attorney Troy Rawlings and Salt Lake County District Attorney Sim Gill that Gill questioned if the federal agency was obstructing their investigation.
The two suggested the U.S. attorney take over their prosecutions of former Attorneys General Mark Shurtleff and John Swallow if the office no longer believed conflicts of interest prevented it from meddling in the matter.
In 2014, Johnson provided information to Rawlings and Gill under an immunity agreement, meaning it would not be used against him.
But some of his information ended up in a lawsuit filed against him last week by the Federal Election Commission. It also was provided to the U.S. attorney's office for Utah, even though that office had been recused from the Swallow-Shurtleff probes because of unspecified conflicts of interest.
In a motion filed in U.S. District Court, the U.S. attorney's office says the FBI responded to its request and produced a limited amount of evidence, but that the office does not intend to use that evidence in its separate prosecution of Johnson and four others in a case revolving around allegations of bank fraud.
The federal prosecutors also point out they provided the materials within the past month to Ron Yengich, Johnson's attorney, who has not claimed that they violated the attorney-client privilege.
On Wednesday, Yengich, in his own motion to the U.S. District Court, was critical of federal and state investigators who, he said, had turned over the information to the U.S. attorney and FEC without authorization from Rawlings and Gill.
Rawlings has been especially vocal about the FEC and the U.S. attorney's office, saying the FEC complaint and the U.S. attorney's actions showed total disregard for the immunity agreement the Utah prosecutors had with Johnson.
The U.S. attorney's office said it has an obligation to disclose all evidence to all defendants and pointed out there are four co-defendants in the federal criminal case it is prosecuting against Johnson.
It is asking a federal judge to review the documents to determine if they should be released to all defendants, not just Johnson.
"The Department of Justice's decision directing the United States Attorney's Office for the District of Utah to discontinue its investigation of the Swallow/Shurtleff matter, commonly known as recusal, did not remove the prosecution's responsibility to comply with its discovery obligations," its motion said.
Rawlings, whose office is prosecuting Shurtleff, was critical of the federal prosecutors' end run around county prosecutors, but also saw silver linings to their motion.
"It is clear from this motion they intend to affirm the immunity agreement with Jeremy Johnson," he said. "My response? Thank you. This removes a large obstacle. Johnson will be free again to provide truthful cooperation in our state case. Johnson may even help exonerate Mark Shurtleff, who is still presumed innocent.
"Hopefully this will clear the way for the U.S. attorney's office to allow the FBI to provide us access to critical material we have wanted for a long time. Truly critical material. They know what it is," Rawlings added, noting he and Gill have obligations to provide material to the defense team, as well.
Gill is overseeing the Swallow prosecution.
Swallow and Shurtleff, who face multiple felonies, have proclaimed their innocence.
