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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