By Alan Caruba
The
Wednesday hearings on the confirmation of a new Attorney General, Loretta
Lynch, lasted hours because members of the Senate Judiciary Committee were
often called away to vote. In the wake of the scandals surrounding the manner
in which Eric Holder’s Department of Justice has functioned, the hearing, led
now by Republicans, could have been harsh, but it was not. The Wall Street Journal characterized the mood in the hearing room as “cordial.” Watching it on CSPAN, I can confirm that.
In early
November the Wall Street Journal, in an opinion titled “The Next Attorney General: One area to question Loretta Lynch is civil asset forfeiture”, it
noted that “As a prosecutor Ms. Lynch had also been aggressive in pursuing
civil asset forfeiture, which has become a form of politicking for profit.”
“She
recently announced that her office had collected more than $904 million in
criminal and civil actions in fiscal 2013, according to the Brooklyn Daily
Eagle. Liberals and conservatives have begun to question forfeiture as an abuse
of due process that can punish the innocent.”
That
caught my eye because the last thing America needs is an Attorney General who
wants to use this abuse of the right to be judged innocent until proven guilty.
Civil forfeiture puts no limits on the seizure of anyone’s private property and
financial holdings. It is a law that permits this to occur even if based on
little more than conjecture. It struck me then and now as a bizarre and
distinctly un-American law.
Writing in
the Huffington Post in late 2014, Bob Barr, a former Congressman and the principal
in Liberty Strategies, told of the passage of the Civil Asset Forfeiture Reform
Act (CAFRA) in 2000 “as a milestone in the difficult—almost impossible—task of
protecting individual rights against constant incursions by law-and-order
officials.” The problem is that civil forfeiture was and is being used to
seize millions.
“The
staggering dollar amounts reflected in these statistics, however,” wrote Barr,
“does not pinpoint the real problem of how law enforcement agencies at all
levels of government employ the power of asset forfeiture as a means of
harming, and in many instances, destroying the livelihood of individuals and
small businesses.”
“In pursuing civil assets, the
government need never charge the individuals with violations of criminal laws;
therefore never having to prove beyond a reasonable doubt that they are guilty
of having committed any crimes.”
As noted
above, as the U.S. Attorney for the Eastern District of New York, Ms. Lynch’s
office had raked in millions from civil forfeiture. Forbes magazine reports
that she has used it in more than 120 cases and, prior to the hearing to
confirm her as the next Attorney General US
News & World Report noted on
January 26 that Ms. Lynch’s office had quietly dropped a $450,000 civil
forfeiture case a week before the hearings. She clearly did not want to answer
questions on this or any other comparable case.
Just one
example tells you why there is legitimate concern regarding this issue and it
appeared in a January 3rd edition of Townhall.com. I recommend you
read the account written by Amy Herrig, the vice president of Gas Pipe, Inc, a
Texas company that an editor’s note reported as “faced with extinction of a
civil asset forfeiture to the federal government of more than $16 million.
Neither Herrig nor her father, Jerry Shults, have been charged with any
criminal offense.”
Jerry
Shults is a classic example of an American entrepreneur. After having served in
the Air Force and serving in Vietnam where he earned a Bronze Star, Shults
moved to Dallas where he began selling novelty items at pop festivals
throughout Texas. Since the first store that he opened had gas pipes exposed in
the ceiling, he dubbed it Gas Pipe, Inc. Suffice to say his hard work paid off
for him. By the late 1990s, he had seven stores, a distribution company, a
five-star lodge in Alaska, and was an American success story. By 2014
the company had grown to fourteen stores and other notable properties.
By then he
had been in business for nearly 45 years and employed nearly two hundred
people. And then someone in the northern district of Texas, Dallas division,
initiated a civil forfeiture seizure against him. I was so appalled by his
daughter’s description of events I secured a copy of the September 15 complaint
that was filed. I am no attorney, but it looked to me as spurious as one could
have imagined, except for the details of Gas Pipe’s assets. On 88 single-spaced
pages, those were spelled out meticulously and all were subject to seizure
despite the fact that not a single instance of criminality had been proven in a
court of law. Imagine having 45 years of success erased by one’s own government
in this fashion. It is appalling.
Assuming
Ms. Lynch will be approved for confirmation as our next Attorney General, civil
forfeiture is the largely hidden or unknown issue that could spell disaster for
countless American businesses, large and small, in the remaining two years of
the Obama administration. She has a
record of pursuing it. The upside of this is that the current AG, Eric Holder,
in early January announced that the DOJ would no longer acquire assets seized
as part of a state law violation.
On the
same day of Ms. Lynch’s hearing, January 28, writing in The Hill’s Congress Blog, former Representative Rick Boucher (D-VA) was joined by Bruce Mehlman, a
former Assistant Secretary of Commerce in the George W. Bush administration, to
raise a note of warning. “The topic of civil asset forfeiture should be an
important part of the discussion with Lynch. As U.S. Attorney for the Eastern
District of New York, Lynch was the top official in a hotbed of civil asset
forfeiture—helping to bring in hundreds of millions of dollars under the
program in recent years.”
Ms. Lynch
was not asked about civil forfeiture by either the Republican or Democrat
members of the Senate Judiciary Committee. It was a lost opportunity and, if
the new Attorney General applies her enthusiasm for it to the entire nation, it
will be yet another Obama administration nightmare.
© Alan
Caruba, 2015
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