- The Washington Times - Tuesday, March 26, 2013

It’s already established that the District’s first election for an attorney general will take place in 2014, but what isn’t certain is the amount of power the new elected official will have.

Prosecutors, defense lawyers and the District’s current attorney general were among those debating two bills Tuesday that would alter the structure of the office of the attorney general and grant it further subpoena powers.

“Our prosecutors have no meaningful ability to compel witnesses to provide information during a criminal investigation,” D.C. Attorney General Irvin B. Nathan said as he testified in favor of expanding the office’s subpoena power. “This is a major impediment.”

The office of the attorney general - which prosecutes misdemeanor criminal offenses, child abuse and juvenile cases, and represents the District in most civil defense cases, among other matters - is essentially hamstrung in subpoenaing witnesses to speak with prosecutors or turn over documents by several strict stipulations put in place in 2010, Mr. Nathan said.

As a result of the restrictions - which among other things require attorneys to request subpoenas within three business days of the commission of the crime being investigated - the office has issued only two subpoenas since the restrictions went into place in 2010. The inspector general’s office, by comparison, issued 200 subpoenas in one year, Mr. Nathan said.

But the way the bill is written, it would give the attorney general overly broad subpoena power that could be abused, defense attorneys argued.

“This would give the attorney general a huge unfair litigation advantage,” said Richard K. Gilbert, of the D.C. Association of Criminal Defense Lawyers.

Current law gives attorneys on all sides only the ability to subpoena a witness or records to court, but this legislation “would give assistant attorney generals the power to compel witnesses to appear in their offices to provide testimony or produce documents,” said Laura Hankins, special counsel for the Public Defender Service. “No federal prosecutor in the District, no federal prosecutor in the country has that power.”

Mr. Nathan, who said he has no intention of running for the elected position, and defense attorneys faced off over the two bills before the D.C. Council’s Committee on the Judiciary and Public Safety. Both bills were introduced at the request of Mayor Vincent C. Gray.

While one bill would expand the attorney general’s authority, the other would remove lawyers from the elected attorney general’s supervision. Under that bill, the Mayor’s office of legal counsel would coordinate those agency legal departments and provide legal advice to the mayor and executive branch. It would also shift the entire responsibility for child support enforcement from the attorney general to the Department of Human Services.

Lawyers who work in the legal divisions of D.C. agencies would become part of the agency they work for and report to agency directors rather than the attorney general under the bill. Such a move would splinter the cohesiveness of the agency and its ability to function efficiently, former Attorney General Robert Spagnoletti said.

“That system resulted in inconsistent legal advice, inconsistent quality of lawyer, inconsistent lawyer supervision and pay, and poor coordination between the agencies and OAG in litigation matters,” said Mr. Spagnoletti, referencing the prior configuration of the attorney general’s office that allowed agency directors to hire and supervise their own lawyers.

Noting that attorneys general in other jurisdictions often run for higher office, others said that if the office’s attorneys are not transferred to an agency director’s oversight, it could lead to clashes within the government.

“If there is a legitimate public policy difference between the mayor and the partisan elected attorney general, it seems very clear to me that one could expect that attorney general to be more interested in promoting his or her interest than the interest of the mayor,” said lawyer Frederick Cooke, who served as the District’s corporation counsel, the precursor to the attorney general, from 1987 to 1990.

More recently, Mr. Cooke represented former D.C. Council member Harry Thomas Jr., who was the subject of an investigation spawned by the attorney general.

Council member Tommy Wells, chairman of the judiciary committee, disputed the assertion that the two sides would have to be at odds or that they have to agree.

“It doesn’t by definition cause the undermining of one or the other,” said the Ward 6 Democrat who is considering a run for mayor next year. “I believe it should be a voice for what’s right and what’s the law, not what counsel believes the mayor wants.”

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