From State Sen. Bob Cassilly:
One of the greatest powers of any government is the power criminal prosecutors hold to issue subpoenas compelling unsuspecting citizens to present their personal records and themselves for government examination and inquisition. This intrusive power can be exercised without charges having been filed and without court oversight.
The drafters of the Maryland Constitution were rightly suspect of the potential abuse of such incredible power. Under our earlier, colonial era constitution these investigatory and prosecutorial powers were consolidated in the single person of the Attorney General. That was later changed and the current constitution includes restrictions to reduce the risk that a single, statewide prosecutor might hold and abuse such awesome power for inappropriate motives – i.e. punish political opponents or further a personal political agenda. The power to conduct criminal investigations and prosecutions is now divided among the 24 State’s Attorneys whose powers are limited to investigate and prosecute only in the single county that comprises each State’s Attorney’s jurisdiction. The Attorney General can directly investigate and prosecute only those specific matters authorized by the Governor or the General Assembly.
This balance of powers was altered in 2017 when the General Assembly passed, on a party-line vote, Senate Joint Resolution 5 (“SJ-5”). SJ-5 authorizes the AG to pursue any criminal investigations and prosecutions he may choose in order to oppose any actions by the federal government which the AG subjectively determines to be adverse to the public interest or welfare, i.e., anything.
However, even with this incredibly broad authorization of power under SJ-5, the Attorney General’s ability to abuse his authority remains constrained by the fact that he lacks independent subpoena authority. This constraint means that in order to engage in a criminal investigation, the AG must disclose to the court or to one of the 24 State’s Attorneys his proposed investigation and ask that court or State’s Attorney to issue a subpoena. This additional step maintains to some degree the constitutional protections against the Attorney General’s unfettered abuse of his investigative powers.
Anxious to rid himself of constitutional constraints, the AG has now introduced in the General Assembly SB 870 which would allow the AG to begin independently issuing criminal investigative subpoenas throughout Maryland without meaningful constraints. It is dangerous to unleash such broad, statewide investigatory power to anyone, especially an attorney general who has already demonstrated an insatiable desire to repurpose his office for political gains. Throughout our nation’s history, citizens across the entire political spectrum have had ample reason to lament such broad investigative powers wielded by various federal special prosecutors. Nothing of value and much harm will come from the AG’s self-righteous efforts to acquire unconstrained investigatory powers.
It is important that the General Assembly defeat the Attorney General’s SB 870 power grab. Constitutional constraints on excessive governmental power are important to our long term success and should not be cast aside to further a partisan political agenda.
Senator, District 34