GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL
ATTORNEY GENERAL
February 24, 2009
The Honorable Phil Mendelson
Chairperson, Committee on Public Safety and the Judiciary
Council of the District of Columbia
John A. Wilson Building, Suite 108
Dear Chairperson Mendelson:
I write in response to your letter of February 13th
regarding the issuance of subpoenas in criminal investigations. In your
correspondence, you ask why the existing statutory authority for search
warrants is insufficient to satisfy the criminal investigative role
contemplated for subpoenas. You also suggest that use of the subpoena
process is designed to evade judicial review and therefore challenge the
appropriateness o f its utilization.
As you know, criminal codes here and around the country
explicitly recognize the distinct roles of subpoenas and warrants as
used by prosecutors to conduct criminal investigations. Courts have
repeatedly upheld the use of subpoenas, whether issued by a grand jury
or a prosecutor’s office, as broad investigatory tools to assist in
criminal investigations. Such subpoenas are critical tools for
prosecutors, particularly in the early stages of investigations. While
such subpoenas are unbound by some of the requirements that would
otherwise apply to subpoenas issued at trial, their reach is not
unlimited. Prosecutors cannot use subpoenas to "engage in arbitrary
fishing expeditions, nor may they select targets of investigation out of
malice or an intent to harass." United States v, R. Enterprises,
Inc., 498 U.S. 292, 299 (U.S. 1991). Importantly, courts retain the
authority to quash or modify subpoenas if compliance would be
"unreasonable" or "oppressive.
As I discussed in my testimony on February 6th before
your committee, subpoena authority in my Office is not unique to the
District of Columbia. Other jurisdictions provide subpoena authority to
legal officials that may be exercised without court involvement. For
example, Delaware, Hawaii, Nebraska, Oregon and Puerto Rico have all
given the Attorney General in those jurisdictions broad investigatory
subpoena power. In addition, Maryland allows the State’s Attorney to
issue subpoenas for records for the purpose of furthering an ongoing
criminal investigation.
The broad authorized use of subpoenas in criminal
investigations stands in contrast to the more limited character of
search warrants. Perhaps most obviously, under D.C. Official Code §
23521(d), search warrants can only issue for one of four limited types
of property.1 Unlike the broad spectrum of information properly
reachable through the use of a subpoena, a search warrant could only be
issued if the property sought meets these rigid definitions. Given the
universe of potential criminal circumstances and situations, it is not
difficult to imagine a wide range of instances where such a narrow,
statutorily-prescribed limitation would be inadequate to the immediate
needs of investigators. One such obvious example would be a need for
information regarding the victim of a crime. In a circumstance where
police or prosecutors need access to records held by a third party for
purposes of identifying a crime victim, the search warrant statute would
provide no relief, as such information would lie outside the defined
scope of property subject to seizure.
In addition to the limited scope of items subject to
seizure, the evidentiary standard required for issuance of a warrant
appropriately exceeds that necessary for issuance of a subpoena. Again.
in recognition of the different roles these tools play in the criminal
investigative process, warrants, which operate to deprive persons of
their liberty or property, necessitate a high probable cause standard of
proof. Subpoenas, which effect no such deprivation, need not reach that
same evidentiary threshold and thus are evaluated against a standard of
reasonableness. U.S. Supreme Court Justice O’Connor explained the
differing evidentiary standards: "[T]he Government cannot be
required to justify the issuance of a grand jury subpoena by presenting
evidence sufficient to establish probable cause because the very purpose
of requesting the information is to ascertain whether probable cause
exists." United States v. R. Enterprises, Inc. 498 U.S. at 297
(citing Hale v. Henkel, 201 U.S. 43, 65 (1906)).
Finally, I disagree with your implication that pursuing a
criminal investigation utilizing the subpoena process somehow eliminates
the independent role of the judiciary in such investigations. A party
served with a subpoena has every right to challenge its issuance and
move that it be modified or quashed in its entirety. Similarly, in the
event of non-compliance, prosecutors will have to decide whether or not
to initiate enforcement proceedings. Such challenges and motions will
not be decided by criminal prosecutors or judges in ex parse
proceedings. Instead, those challenges will be the subject of
on-the-record proceedings in open court. The subpoena process thereby
preserves the role of an independent judiciary in the ultimate
adjudication of these matters.
I hope you find this responsive to your request. I am
confident that, upon consideration of this process, including the
external safeguards afforded by the courts and the internal safeguards
guaranteed by the detailed policy and procedures I have implemented, you
and your colleagues will recognize and support the Administration’s effort to
increase the efficiency of criminal investigations.
Peter J. Nickles
Attorney General for the District of Columbia
PJN/rjh, sk (AM-08-748(E))
cc: The Honorable Vincent Gray, Chairman
The Honorable Yvette Alexander
The Honorable Marion Barry
The Honorable
Muriel Bowser
The Honorable Kwame Brown
The Honorable Michael Brown
The
Honorable David Catania
The Honorable Mary Cheh
The Honorable Jack Evans
The Honorable Jim Graham
The Honorable Harry Thomas, Jr.
The Honorable
Tommy Wells