In the past 27 months, the District of Columbia attorney general's office issued two subpoenas in criminal matters. Testifying yesterday before the D.C. Council in favor of expanding the office’s subpoena power, Attorney General Irvin Nathan said restrictions in place now are a "major impediment to effective law enforcement."
Nathan faced opposition from the local criminal defense bar, however, which said a proposed law to expand subpoena authority would mark a "frightening" expansion of power.
The bill, introduced in January, would effectively undo 2010 legislation that placed limits on the attorney general office's subpoena authority. The office, for instance, can't issue a subpoena if a defendant has already been indicted, if three business days elapsed since the underlying crime took place – a restriction Nathan called "ridiculous" – or if there were other means of getting the information, such as a search warrant.
"This is no way to run a criminal justice system, and it is certainly not a recipe for the kind of efficient or comprehensive investigations that are in the District's interests to occur before a decision is made whether to charge a defendant and what to charge the defendant with," Nathan said.
Laura Hankins, special counsel to the director of the Public Defender Service for D.C., said the attorney general's office had the same authority as federal prosecutors and defense attorneys to request subpoenas through the courts. The proposed bill would give the attorney general's office authority to subpoena a witness to show up at a government office and testify under oath, a power that no federal prosecutor has, she said.
The attorney general's office prosecutes certain misdemeanor and juvenile cases, while the U.S. attorney's office handles adult felonies and other misdemeanors. Hankins said that although federal prosecutors can subpoena witnesses for a grand jury, the process still took place under the management of a court; prosecutors couldn't subpoena witnesses to come to their offices, she said.
Richard Gilbert, co-chair of the legislative committee of the D.C. Association of Criminal Defense Lawyers, warned that the legislation was particularly dangerous as the city prepared to shift to an elected attorney general in 2014. Giving an independent attorney general broad authority to compel anyone to come to their office to testify or turn over documents opened the door to abuse, he said.
"I don't think it's a far reach to see how such unfettered power could be used against political opponents, unpopular groups of individuals, or so forth," he said. He cited controversial efforts by Virginia Attorney General Ken Cuccinelli to subpoena documents from climate change scientists as an example of a troublesome scenario that could come out of the proposed bill.
Gilbert said there were two areas where his group could see a legitimate need to expand subpoena power: obtaining records and compelling witnesses in serious juvenile cases. He stressed, however, it would still need to be done in a way that involved judicial oversight. For instance, he said assistant attorneys general could go to the presiding judge of the D.C. Superior Court's Family Court to show they needed to subpoena a witness in a juvenile matter.
Nathan dismissed the objections raised by Hankins and Gilbert as invalid. There are several checks against abuse already in place, Nathan said, noting that anyone who received a subpoena could file a motion to quash it or modify its conditions, or complain to the D.C. Council about an overreach of authority.
The bill would apply to civil litigation as well; the attorney general's office defends the city against lawsuits and brings cases ranging from consumer protection to antitrust. Nathan said the rules of civil procedure gave his office adequate subpoena authority in defending against litigation, but that they were hamstrung when it came to investigating potential cases.
Hankins testified that although her expertise was in criminal law, it would be a problem if the attorney general's office had authority to issue subpoenas in any matter they chose, even if they didn't have the authority to prosecute it.
"The office of the attorney general has today no greater need for subpoena power and no better explanation for why it should be given such tremendous power than it had when this council correctly rejected its request in 2002, and 2004, and 2009," she said.