As a Senator, I had enough federal issues to deal with, so I carefully avoided getting involved in issues that were purely state matters. However, as a columnist, I have been asked so many questions about "The Swallow Affair" that I have decided to suspend that rule this one time.
The legal question regarding John Swallow's staying in office is: "How should the principle of 'presumed innocent until proven guilty' be applied to a public official who has been accused of serious wrongdoing but hasn't been convicted of anything?"
The answer is, "scrupulously." Otherwise, we would see the rise of more prosecutors like former New York Gov. Elliot Spitzer, who built his career through high profile "investigations" that made him look like a champion of law and order but quietly disappeared when media attention faded.
There is no easy way to recover from such treatment. Secretary of Labor Ray Donovan was forced to step down by a series of accusations which took years to resolve. After it was established that they had all been false, he asked, "Which office do I go to get my reputation back?"
"Presumed innocent" is in the law because there is no such office.
But matters of public trust involve more than the law. They involve public confidence, particularly with respect to law enforcement. Think of a police officer who, when caught in a highly threatening situation, deals with it by using deadly force. Relatives of those killed call him a murderer who should be prosecuted, while those rescued insist he is a hero who should be honored. An investigation is very much in order.
While it goes on, the officer is not fired but placed on administrative leave. If he is exonerated, he will return to duty with a clean record. If he is not, he will be dealt with appropriately. Either way, it is understood that he cannot effectively do his job until the matter is resolved.
The process applies to those holding office at the highest levels, even to the most wrongly accused. I refer to James Beggs, administrator of the National Aeronautics and Space Administration, who was indicted for allegedly committing contract fraud while he had been executive vice president of General Dynamics. Jim was a mentor to me while we were both at the Department of Transportation and is one of the finest men I know. When I heard the news, I was sure he had done nothing wrong, and I was right; the case was dismissed on the first day of trial. He later received a letter from the U.S. attorney general, apologizing for the fact that it had ever been brought up.
However, even though everyone who knew Jim Beggs knew that he would be completely exonerated, he was placed on administrative leave, just like the police officer. He could not effectively do his job until the matter had been cleared up. An "acting administrator" was appointed to run NASA while Jim's case ran its course.
So if Attorney General Swallow chooses not to resign because he's convinced he's innocent, he should take administrative leave. That would permit him to devote full attention to clearing his name and dealing with the multiple investigations he is facing. An "acting attorney general" could then devote full attention to running the attorney general's office, which it needs.
Timing is important in these matters. The issue of the moment is not "presumed innocent until proven guilty"; that will be resolved through due process. The issue of the moment is "ability to effectively do the job." That needs to be resolved now. The state requires and deserves nothing less.
Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.
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