Utah lawmakers were understandably frustrated last year during their investigation into allegations of improprieties by now-former attorney general John Swallow. He challenged subpoenas and sought every available legal avenue to defend himself.
But in a hurried attempt to shore up their subpoena powers and make it more difficult for the targets of future investigations to challenge them, lawmakers have passed a dangerous bill that robs Utahns of due process and exempts the Legislature from accountability.
Gov. Gary Herbert should veto HB414 — a bill so draconian in scope it would make it a crime for anyone to try to seek constitutional protections from legislative overreach in a court of law. As with so many ill-conceived measures through the years, this one was passed in the waning hours of the legislative session without any public debate in its final form. It is a solution in search of a real problem, and it raises serious constitutional questions.
The abuses possible under such a law are many and varied. There would be no limits to the subjects of such subpoena powers, whether they involve conduct in office or the private conduct of ordinary citizens.
Frustrations aside, lawmakers should concede that a strengthening of their subpoena powers is unnecessary. The Swallow investigation resulted in his resignation, and evidence has been turned over to county officials for possible criminal charges. While the former attorney general’s legal challenges did prolong the process and make it more expensive, such is the cost of a system of government that places fairness ahead of efficiency. One should not be penalized for seeking to mount an adequate defense.
More importantly, they should understand that the Legislature, in addition to concerning itself with the public’s welfare is, at its core, a political body. It is not necessarily above petty political motivations. As a result it would be dangerous for the legislative branch to place itself above the checks and balances provided by the other branches of government.
HB414 specifically makes it illegal for anyone to challenge a legislative subpoena in a court of law. If the target of a subpoena wants to mount a challenge, he or she must do so with the Legislature itself, which, we’re guessing, would be less than sympathetic. A legislative review committee’s decision on such a challenge would be considered final.
Of course Legislative bodies need broad powers to investigate, whether that involves allegations of wrongdoing by elected leaders sworn to uphold the law or the gathering of documents or records to aid in deciding whether to write new laws. Lawmaking is all about changing the way things are run, and decisions concerning these changes cannot be made intelligently without reliable information. Occasionally, this requires a subpoena.
But those powers must be limited in order to protect the rights of targets of such investigations. At the very least, those targets should be afforded an opportunity to appeal to an independent court.
Utah lawmakers already enjoy adequate power to issue and enforce subpoenas. HB414 goes too far. Herbert should veto it in order to protect the rights of all Utahns.
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