The comment was startling, even for President Donald Trump. In a meeting with county sheriffs this week, the president suggested he would “destroy” the career of a Texas state senator who wants to curtail the ability of law enforcement to seize money, vehicles, and property suspected of being used in crime. A Texas sheriff had complained that the unnamed legislator’s bill would be a boon to drug dealers. Later in the meeting, Trump told Dana Boente, the acting attorney general, to put the practice, called asset forfeiture, “back in business.”
The exchange prompted laughs in the room and outrage on the Internet, but it also exposed an important policy divide among two groups traditionally associated with Trump’s rise: law enforcement and conservatives concerned about government overreach.
Under some state and federal laws, police can seize assets they suspect of being used to commit crimes — whether or not the owner is suspected of actual criminal activity — and funnel much of that money back into their law enforcement budgets. Police, sheriffs and prosecutors often say such policies give them the money to fight crime more effectively and deprive drug dealers of the tools of their trade while they await trial.
But many conservatives and libertarians who are generally supportive of law enforcement have found common cause with more left-leaning advocates in attacking the practice, citing stories of innocent people who have lost their cars and houses with little recourse.
“We’re looking at this as a teachable moment,” says Marc Levin, the policy director of the conservative criminal justice reform group Right on Crime (and also a member of The Marshall Project’s advisory board). He said he wants the president to know about a 2012 case where a Massachusetts motel owner had to fight in court to keep his property from being seized because guests were selling drugs.
“If someone is bringing drugs into Mar-a-Lago,” Levin said, “police could try to seize it.”
The new administration’s policies have not been formalized. Trump’s comments this week were his first discussion of asset forfeiture as president, though his new attorney general, Jeff Sessions, was broadly supportive of the practice while a senator and could rejuvenate federal support. (During his confirmation hearings, he was criticized for this by some conservatives.)
His comments came as what was once an obscure part of the Reagan-era drug enforcement push is reevaluated around the country. New Mexico and Nebraska recently abolished the practice of civil asset forfeiture, and roughly a dozen other states have come to require a criminal conviction before police can keep what they have seized. In 2015, then-Attorney General Eric Holder restricted a federal program that supported police efforts to seize assets.
“There is certainly a strain of Republican thought that is fearful of the erosion of property rights and where that might lead,” says Michael O’Hear, a Marquette University Law School professor who has polled conservatives on criminal justice topics.
Law enforcement groups have urged caution, saying they need the money to operate. “Like any government program, there can be found instances of abuse,” Fraternal Order of Police president Chuck Canterbury wrote last month in The Daily Caller. “We are confident that we can protect the due process rights of our citizens without losing the ability to use the profits of criminals and terrorists to make our communities safer.”
Still, many state lawmakers have considered increasing the burden of proof police and prosecutors must overcome if they want to keep what they seize. In Texas, a bipartisan group of lawmakers passed a measure in 2011 banning law enforcement from pressuring motorists to sign waivers allowing money to be taken on sight at a traffic stop, and restricting how such funds could be used by agencies (one district attorney had used seized money to buy alcohol for an office party).
The proposal the sheriff in this week’s meeting complained to Trump about — by Republican state Sen. Konni Burton, a former tea party activist — would require a conviction before money can be seized.
Other bills in Texas are more modest. One would put the forfeited money into a fund to compensate victims of crime, undermining the incentive for police to seize money that will benefit their own departments. Another — filed by State Sen. Joan Huffman, a Republican and former prosecutor — would not require a conviction but just raise the burden of proof prosecutors must meet when they ask a judge to approve the forfeiture of assets, and require that they go before the judge within 48 hours or give the property back. Currently, they have 30 days.
Kathy Mitchell, of the Texas Criminal Justice Coalition, has been tracking the issue closely and says she expects something to pass, even if it is not as far-reaching as the proposal Trump attacked. “Nobody is afraid of this conversation,” she said.