When justifying various elements of his new war on crime, Attorney General Jeff Sessions sometimes invokes the notion that Department of Justice (DOJ) employees must use all legal tools Congress has given them — even the ones now on the wrong side of a political consensus that views the justice system as fruitlessly punitive.
The argument tacitly invites elected officials to act out against the attorney general’s campaign. On Tuesday, an ideologically diverse cluster of lawmakers answered the bell by adding language to a crucial spending bill that would curtail one of the most dubious powers Sessions means to wield.
The amendment would effectively restore restrictions on federal asset forfeiture programs — the systems by which state and local law enforcement are allowed and encouraged to confiscate personal property on the mere suspicion that it was gleaned through crime, without ever proving their case in court — that Sessions is eliminating. The language prohibits the DOJ from using any of the funds appropriated in the bill on Sessions’ scheme.
The amendment is backed by an atypical alliance of House lawmakers, led by civil libertarian Rep. Justin Amash (R-MI) but backed too by far-right Freedom Caucus members and a smattering of Democrats. Its ultimate fate remains murky.
It passed Tuesday on a voice vote rather than a more politically binding recorded poll of the House. Senate Republicans could still strip it out in deference to Sessions. If it reaches President Donald Trump’s desk intact, he could try to craft a signing statement that would still give Sessions a thumbs-up to proceed. (Trump likes forfeiture himself, offering to “destroy [the] career” of a Texas state senator who is sponsoring legislation to restrict forfeitures in her state.)
But the transpartisan nature of the idea embedded in the amendment makes such maneuvering difficult for Sessions’ allies. The changes to forfeiture policy Sessions wants to reverse were heralded as progress by liberals and conservatives alike when former Attorney General Eric Holder initiated them in 2015. The broader notion that American criminal justice policy needs serious overhaul continues to enjoy the support of a broad coalition of influential donors that includes the hyperconservative Koch brothers. While the specifics of how that overhaul should look are sometimes disputed inside the reform coalition, opposition to asset forfeiture stands out as a primary point of cohesion for the wave Sessions is trying to halt.
Sessions, meanwhile, has stood in the jailhouse door to defend forfeiture from its critics. At a 2015 Senate hearing, he claimed that “95 percent” of all forfeitures hit crooks “who have done nothing in their lives but sell dope.”
The attorney general’s absolute confidence in the integrity of these state seizures of personal property belies the constitutional issues within the policy that have made it a lightning rod for some of his far-right fellow travelers. As with other over-broad, ill-regulated law enforcement tools, police end up abusing the power that forfeiture laws give them. People routinely lose cars, family homes, valuables, and cash to officers who never formally accuse them of a crime. Absurdly, forfeiture courts require civilians to prove they aren’t criminals in order to regain property that cops took from them without ever demonstrating a criminal connection in court.
Police have taken billions of dollars from people through forfeiture claims. Republicans and conservatives from Sen. Chuck Grassley (R-IA) to Washington Post columnist George Will have decried the practice as an obvious violation of the Bill of Rights, though courts have repeatedly upheld its validity.
Here, as so often with Sessions’ dogmatic commitment to harmful justice policies, the attorney general is stuck in the last century. “What started out in the 1980s as interdiction in the drug trade has become nickel and diming of people who don’t have the wherewithal to fight to get their property back,” Derek Cohen of the Texas Public Policy Foundation said in 2016. State legislatures have pushed out in front of the federal system in seeking to rein in asset forfeiture abuses. The policy change Sessions announced in July would give cops a mechanism to bypass those state law restrictions through collaboration with DOJ agencies not bound by state law.
But with Tuesday’s voice vote, and support from heavy-hitting Senate conservatives like Grassley, the DOJ retrenchment is suddenly on the rocks. The amendment is now attached to a $1.1 trillion spending bill that links Pentagon funding to appropriations for a raft of other domestic agencies whose budgets are typically more vulnerable to White House pressure. The package slashes funding from vital work across many of those agencies and is unlikely to receive Democratic votes, leaving Republicans little room to maneuver internally even if Senate Majority Leader Mitch McConnell (R-KY) should decide he wants to take up Sessions’ quixotic fight to make police thieves again.