With the news cycle centered on Russia and Republican health-care flops, Attorney General Jeff Sessions’s swift and quiet assault on the Fifth Amendment has gone largely unnoticed. In a reversal of one of the few conservative legacies of the Obama administration, the Trump Justice Department plans to restore the ability of police to seize money and property from suspected criminals without due process. The Department of Justice formally announced on Wednesday that it will roll back heavy restrictions imposed on law enforcement by former Attorney General Eric Holder, and thereby encourage law enforcement to plunder private property and cash in order to . . . fund law enforcement.
The process of civil asset forfeiture, referred to in Sessions’s order as “federal adoptions,” has long attracted criticism from proponents of civil liberties. The process allows police to seize property that they suspect may have been illegally obtained. It involves local government essentially stealing from citizens who have not yet been tried for or found guilty of a crime, and it seems to directly violate the due process guarantees within the Fifth and Fourteenth Amendments. In a few notable cases, such as that of small-business owner Lyndon McLellan from North Carolina and college student Charles Clarke, citizens have been robbed of hundreds of thousands of dollars without so much as being charged with a crime. The practice emerged during Prohibition and has exploded during the War on Drugs, evolving into a multibillion dollar industry for the police state.
House Republicans Justin Amash and Darrell Issa have rightly slammed Sessions’s reinstatement of the practice. Amash derided the Justice Department order as “unjust and unconstitutional,” while Issa called once again on Congress to pass the Due Process Act, which he reintroduced in the House earlier this year.
But this is not enough. The party of small government and individual liberty must act as such and condemn the Justice Department’s foray back into the murky, abusive, and authoritarian waters of asset forfeiture.
This is not your usual political mudfight. Indeed, before you cry “Never Trump!” consider, first, that the congressman who has most vocally denounced the practice, Darrell Issa, has been quite friendly with Trump. Moreover, opinions on this matter do not break down neatly along partisan lines. Before she was known as the eternally silenced, intersectional, resistance-princess-in-waiting, Kamala Harris was the relatively lackluster attorney general of California. And, despite selling herself as a progressive from Berkeley, Harris became famous for continually overlooking prosecutor misconduct and — you’ve guessed it — for becoming one of the country’s most aggressive proponents of civil asset forfeiture.
Harris was not merely “doing her job.” In 2011, she actively fought a California bill that would have curbed civil asset forfeiture. Four years later, she sponsored a bill to expand the abilities of prosecutors to seize assets of those charged with a crime prior to the commencement of criminal proceedings. That year, the state stole $50 million worth of private property and funds from California citizens.
To rebuke the Reagan legacy, Harris has billed herself as “smart on crime” rather than the Sessions-adopted “tough on crime.” In practice, their ideologies are reflective of the same, constitutionally hostile statism that conservatism must reject.
Thankfully, many conservatives do. Justice Clarence Thomas has excoriated the practice, describing it as “policing for profit” and calling into question its constitutionality. Indeed, as recently as last month, Thomas called upon the Court to reconsider whether their rulings on the matter are consistent, a concern that was reflected in Senator Mike Lee’s castigation of the DOJ’s order today. Rand Paul cited the Fifth Amendment in his condemnation of the order. Marco Rubio will likely also denounce the bill, as his historical opposition to civil asset forfeiture has been so strong that it led him to refrain from voting to confirm Loretta Lynch, who backed the practice, as attorney general. Senator Mike Crapo has also stood with Lee to call on the DOJ to reform it.
Alas, there seems to be a bipartisan momentum against reform. In four years, Donald Trump may very well face Harris in his quest for reelection. If so, Harris is bound to amplify the Democrats’ recent return to defending civil asset forfeiture, which began with the replacement of Eric Holder with Loretta Lynch, and has more recently continued with Harris’s Senate colleague, Dianne Feinstein, floating legislation to bring even cryptocurrency back into the purview of forfeiture. Americans of all political persuasions deserve a good deal better than this.