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Judge dismisses FEC complaint against ex-Utah A.G. John Swallow

SALT LAKE CITY — A federal judge dismissed a Federal Election Commission complaint against John Swallow on Friday, ending all remaining legal action against the former Utah attorney general.

Swallow called it a "great day" for him and his family.

"This is the end of the state and federal government's actions against me. In every single instance I have been found innocent," he said. "I have been absolutely now vindicated and I am moving forward with my life."

The FEC alleged that Swallow solicited large contributions from St. George businessman Jeremy Johnson for political campaigns, and showed him how to circumvent federal laws that limit individual donations to $2,400.

Johnson, who is in federal prison in an unrelated criminal case, used "straw" donors to give $100,000 to former Utah Attorney General Mark Shurtleff, $50,000 to U.S. Sen. Mike Lee, R-Utah, and $20,000 to now-retired U.S. Sen. Harry Reid, D-Nev., according to the complaint.

"I'm saying categorically, I didn't encourage him to violate federal elections law nor would I ever do that. It's not who I am," Swallow said.

Swallow's lawyers with the Institute of Free Speech argued in court last month that what the FEC accused him of doing is not against the law. He was not accused of making the donations himself but helping Johnson do so.

Attorney Allen Dickerson contended the law is silent on secondary liability — the practice of holding one party legally responsible for helping another — for the type of campaign finance violation Swallow allegedly committed.

U.S. District Judge Dee Benson agreed.

The judge compared it to a basketball player passing to another player who makes a basket. The passing player gets credit for an assist but cannot be considered the one who made the basket.

It is illegal under federal law for a person to donate funds to a federal candidate through another person or allow their name be used to contribute to a candidate. It also is against the law for a candidate to accept a contribution made in the name of another person.

The law applies to only three types of people, and Swallow was not one them, Dickerson argued.

"The FEC’s authority exists no further than the boundaries of the law it was created to enforce," Benson wrote in a 10-page decision. He said FEC regulations went too far and improperly intruded into the realm of lawmaking that is the exclusive province of Congress.

FEC lawyer Sana Chaudhry argued in court that Congress allows the FEC to write regulations to fill gaps in the law. Swallow not only aided and abetted in making the contribution but "initiated" the scheme, she said.

Benson struck the rule from the code of federal regulations and barred the FEC from enforcing it.

Dickerson said Benson rightly rejected the FEC's "brazen" attempt to supplant federal law.

"Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate," he said, adding the ruling secures the rights of all Americans to discuss and participate in campaign fundraising.

Benson's decision ended all pending legal cases against Swallow, who resigned from office under fire in December 2013.

The FEC case against Swallow was based largely on statements Johnson made to federal and state agents during a criminal investigation of Swallow under a grant of immunity.

Johnson was to be a key prosecution witness in the public corruption trial against Swallow and was found in contempt of court when he refused to testify last year. A 3rd District Court jury acquitted Swallow of all charges after a four-week trial.

Swallow is suing the state to recoup $1.5 million in legal bills incurred in the criminal case.

Johnson is serving an 11-year federal prison sentence for making false statements to a bank in connection with his defunct internet marketing company.