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More Outrage About Sessions and Civil Asset Forfeiture

Daniel Mitchell from CATO put together a round-up over of articles over the last few days from various sources chiming in their opinion of Session’s expansion of asset forfeiture. It was published on International Liberty. The list is below;  you should also read the article its entirety. 

Writing for USA Today, Professor Glenn Reynolds correctly castigates the Attorney General for his actions.

David French of National Review is similarly disgusted.

Erick Erickson adds his condemnation in the Resurgent.

In a column for Reason, Damon Root of Reason adds his two cents.

Last but not least, the editors of National Review make several important points.

One last point of note that Mitchell included is that “the first two administrators of the federal government’s asset forfeiture program now want it to be repealed.”

Jeff Sessions Expands Asset Forfeiture

Attorney General Jeff Sessions announced yesterday that civil asset forfeiture would continue to be a viable practice among law enforcement. In fact, Sessions went so far as to roll-back asset forfeiture restrictions that were put in place during the Obama Administration after a series of high-profile cases and reports revealed egregious misuses of the law which resulted in billions in seizures over several years for state and federal agencies.  Sessions announced, “We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”

Civil asset forfeiture allows law enforcement to take money or property from a citizen who is merely suspected of criminal activity — not charged or convicted. Though original asset forfeiture laws were aimed at drug cartels to interrupt their business and money, it use has expanded rapidly in recent years. It’s not being used just for “organized crime” anymore; that’s a red herring that gives police a green light to continue to abuse citizens and take their property without due process.

“Under the equitable sharing program, federal authorities may “adopt” state and local forfeiture cases and prosecute them at the federal level. Those local police departments get to keep up to 80 percent of the forfeiture revenue, while the rest goes into the equitable sharing pool and is distributed among partner departments around the country.” I gave credit to Obama for addressing asset forfeiture and restrictions were rightly implemented as a stepping stone to reign in this abominable practice. Sessions is now loosening those once again.

According to Reason, “The Justice Department did include several requirements that it says will safeguard the due process rights of property owners. The directives require state and local police to provide additional information showing probable cause that a crime occurred before federal authorities will adopt the seizure. Seizures of under $10,000 will have to be accompanied by a warrant, a related arrest, or the seizure of contraband. Absent those provisions, a U.S. attorney would have to sign off on an adoption.

Clarence Thomas wrote a scathing dissent of asset forfeiture last month when SCOTUS chose not to hear a case on the matter. He wrote, “this system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses. He further pointed out, “because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.”

Thomas is right to condemn the practice.  Asset forfeiture is a practice that denies citizens the right to due process; no one should lose property because of mere suspicion of criminal behavior. Sessions and the Department of Justice is wrong on this matter.

For interested parties, here’s a link to the entire policy directive:

Another IRS Civil Asset Forfeiture, Return

The media recently profiled another large civil asset forfeiture case, much like the Hirsch Brothers and the restaurant owner. This particular case involved a North Carolina man who has owned a convenience store since 2001. Last July, the IRS seized $107,000 from his bank account.

The owner, Lyndon McLellan, was visited by the FBI, who informed him that his habit of depositing less than $10,000 cash on repeated occasions drew suspicion by the government, also known as “structuring”. What started as a means to go after drug trafficking and money laundering has entangled many American citizens in recent years who have had their money seized under suspicion of criminal activity.

Recently, several cases have received substantial news coverage, resulting in the IRS, and then the Department of Justice changing their policy of asset forfeiture; now, no assets will be seized without an actual tie to a crime. Suspicion of activity is not enough anymore.

The plight of his latest victim of asset forfeiture was given several “opportunities” to settle with the government for a partial return of his money. The owner, who had done nothing wrong — since much of his business was run in cash — refused each offer. Three days after his story gained national coverage, the government dropped their case against him, citing the IRS and DoJ policy change. The owner had never been charged formally with anything. McLellan was fortunate; in such cases, the burden is on the victim to prove his innocence.

The Institute for Justice has been successfully representing many of these victims of civil asset forfeiture. However, “though the government will return all of the money it seized from McLellan, it dismissed the case without covering the store owner’s legal fees and expenses, as well as interest on the money.

In 2000, Congress passed a law that entitles McLellan to those fees and expenses, which total more than $20,000.

Additionally, government policies require the $107,702 seized is kept in an interest-bearing account. Though McLellan will receive the money, the government wants to keep the interest earned.”

Though the new policy reforms will hopefully keep from ensnaring more innocent Americans, others have not been so lucky.

In recent years, seizures executed because of structuring violations have increased dramatically. In 2005, the Internal Revenue Service made just 114 structuring seizures. By 2012, that number had risen to 639. During that same time period, the agency seized $242 million for structuring violations.

While banks must submit reports to the Department of the Treasury for cash deposits of more than $10,000, the government also receives “suspicious activity reports” on deposits below that threshold.

It’s likely the government received a suspicious activity report detailing McLellan’s deposits, which is how he “came onto the government’s radar.”

Also, “the IRS frequently teams up with local law enforcement to look through suspicious activity reports. By seizing property and money through the Department of Justice’s Equitable Sharing Program, law enforcement agencies share the proceeds of the forfeiture.”

Though Lyndon McLellan is supposed to receive his $107,000, he may still have to wait several more months. By July, the government will have held his money for a year. It’s amazing what a little sunlight and media coverage on these unconstitutional seizures can do for the government to come to its senses.

An Open Letter to Senatorial Democrats


The nomination of Loretta Lynch to the position of Attorney General is before you. Although her intelligence, experience, and poise may appear to make her a superb candidate, it is clear now that she would be an extremely poor – even dangerous — choice due to her strong position on civil asset forfeiture.

Though I as a libertarian and you as a liberal may disagree on many things, the need to safeguard civil liberties and individual rights is a priority for both of us. Do you really want to consider confirming a person who has been proud of her record of taking property without due process…of guilty until proven innocent? She may very well bring down anyone who supports her candidacy.

Civil asset forfeiture is a particularly egregious abuse of power, allowing the government to seize property and cash if it merely suspects wrongdoing, even with no evidence and no charging of a crime.

Loretta Lynch was particularly lucrative in this regard as the U.S. attorney for the Eastern District of New York. Between 2011 and 2013, the forfeiture operations under her management netted more than $113 million in civil actions. Lynch’s division was among the top in the country for its collections. But this is not something to be proud of.

In one particularly appalling case, Loretta Lynch’s office seized nearly a half-million dollars from two businessman in 2012 and sat on it for more than two years without a court hearing or appearance before a judge. In fact, no crime had been committed. These men were denied due process and deprived of their assets without warning or criminal charges. Lynch suddenly returned the money just weeks ago on January 20, 2015 — on the eve of her confirmation hearings, having found no wrongdoing by the men either.

During Lynch’s confirmation hearing testimony pertaining to civil asset forfeiture, Lynch stated that “civil and criminal forfeiture are very important tools of the Department of Justice as well as our state and local counterparts.” She further argued that forfeiture is “ done pursuant to court order, and I believe the protections are there.” This is, in fact, not true. In the case mentioned above, there was not only no court order, but also no hearing at any time in nearly three years. That is unconscionable. And this is only one of many similar incidents.

The problem of civil asset forfeiture is that the government can confiscate money or property under the mere suspicion of a crime without ever actually charging someone. The person must prove his innocence to reclaim what was seized, which is a burden of time and money and readily seems to go against our notion of “innocent until proven guilty.”

In recent months, individuals and organizations on both sides of the political aisle have come together to demand reform to this unjust practice. Bipartisan legislation has been proposed in Congress; groups ranging from the Heritage Foundation to the American Civil Liberties Union have been increasingly critical of civil asset forfeiture practices. Even Eric Holder has called for changes and the IRS has pledged to reduce its involvement as well. What’s more, besides the obvious threat to civil liberties, those most likely to be victims are poor and minority citizens.

Loretta Lynch and her record on civil asset forfeiture represents the worst of this “tool for law enforcement”. A vote for her confirmation is a vote you will never be able to walk back. Do you really want to confirm a person who is so deeply committed to civil asset forfeiture at the very same time there is strong bipartisan support for protecting civil liberties and walking back the laws pertaining to this practice?

Loretta Lynch may arguably be the most successful forfeiture agent in government today. This is not a positive quality for an Attorney General. The practice is abusive and her tactics even more so. Voting to confirm a person with such an atrocious civil liberties record is certain to cause problems for you down the road. I urge you to vote no for her confirmation.