Update: DC Council, Fenty Administration Battle Over Subpoena Powers
On Friday, members of the DC Council and the city administration clashed over subpoena powers. The DC Council Committee on Public Safety and Judiciary held a hearing (pdf) on DC Mayor Adrian Fenty’s order 2009-5 (pdf), which gave the Attorney General the power “to issue subpoenas to witnesses in any criminal investigation or examination for the purpose of obtaining records, including but not limited to phone records, computer information, Department of Motor Vehicle records and lease information.” The Attorney General was also given the power to delegate this authority to subordinate attorneys.
In a previous order (pdf) rescinded by 2009-5, Mayor Fenty had sought to give the DC Police Chief the authority to “issue subpoenas and to administer oaths to witnesses in any investigation or examination of any municipal matter.” Across the country, when law enforcement officials seek records (such as phone call or computer data) in a criminal investigation, they usually ask prosecutors to obtain a subpoena from a grand jury. Critics of Mayor Fenty’s order say it violates the US Constitution.
Speakers at the hearing on Friday included: DC Attorney General Peter Nickles, DC Police Chief Cathy Lanier, officials with the DC Public Defender Service, the DC Association of Criminal Defense Lawyers, and the ACLU of the National Capital.
The Examiner reports that Nickles “said that the District’s Home Rule charter gives the mayor the power to ‘execute all laws.’” Nickles said, “I intend to be personally involved. I intend to prevent against any abuse of this power.”
But, Laura E. Hankins, special counsel to the director of the public defender service, said Nickles has misinterpreted the District’s Home Rule Act. “Hankins said that law gives the mayor’s office the power to issue subpoenas for records and testimony only in internal city government cases involving personnel matters, not criminal probes by police in the community,” the Washington Post reports.
Stephen M. Block, ACLU-NCA legislative counsel, said allowing the DC attorney general to issue orders for private records, without the traditional process of independent review by a judge or grand jury, would be a subpoena system “of the prosecutor, by the prosecutor, for the prosecutor,” reports the Post.
The Examiner reports that DC Councilmember Mary Cheh and Committee on Public Safety and Judiciary Chairman Phil Mendelson were critical of the Mayor’s order. Mendelson said, “You would have us go around the Fourth Amendment.”
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