219: Civil Asset Forfeiture and Trump’s Transgender Military Ban

Chris Spangle, Greg Lenz, Cat Anagnos, Harry Price, and Seth discuss the scourge of civil asset forfeiture, the fate of Jeff Sessions, and Trump’s Trans ban in the military.



Show Notes

219 – Show Notes

Topic 1: Civil Asset Forfeiture is a stealth tax or method of seizing wealth from the taxpayers. This occurs when a law enforcement agency seizes the assets — including real estate, cars, cash, and other valuables — from private citizens based merely on the suspicion that the person has committed a crime with the assets in question. No due process is necessary. No conviction in a court of law need occur.

CAF is a law enforcement tool that enables the seizure and eventual forfeiture of real and personal property that may have been involved in criminal activity. Today’s expansive forfeiture laws, rather than relieving drug kingpins and criminal organizations of their ill-gotten gains (as was their original purpose), instead allow for—and even incentivize—the seizure of property and currency from ordinary Americans based on little or no evidence of actual criminality.

Modern civil forfeiture laws hold that property can be guilty of a crime, and therefore may be seized and forfeited even if that property’s owner never faces criminal charges. For two centuries, American civil forfeiture law was largely restrained to admiralty and customs enforcement.

In the 1980s, Congress and the states turned to civil forfeiture to combat rampant drug distribution and organized crime. Civil forfeiture became a mainstream law enforcement tool and Congress and the states encouraged its use by allowing law enforcement agencies to retain the proceeds of successful property forfeitures.

Once authorities seize private property, the resulting civil proceeding differs dramatically from the customary standards of American criminal law.

 

 

  • Important Facts: In recent years, numerous states have been passing new reforms of the long-abused civil asset forfeiture in which police agencies seize private property without any due process.

 

 

 

  • First, the proceeding targets the property rather than the owner. Under forfeiture law at the federal level and in most states, the evidentiary standard requires “a preponderance of the evidence,” not the criminal law standard of “beyond a reasonable doubt.” Thus, prosecutors need prove only that it is more likely than not that the property is tied to crime and is thus forfeitable.

 

 

 

  • Second, the prosecution need not prove that an owner used the property to commit a crime or was willfully blind to its use, as is the case in ordinary criminal trials. In a forfeiture proceeding, the burden falls on the owner to disprove these facts by demonstrating that he neither knew of, nor consented to, the property’s illicit use.

 

 

 

  • Third, property owners in forfeiture cases, unlike defendants in criminal cases, have no guaranteed right to counsel. Consequently, if an owner cannot afford an attorney, he must navigate a tortuous legal landscape alone. Oftentimes, the cost of hiring a lawyer exceeds the value of the seized property or currency; hence, a large number of defendants opt not to retain counsel even if they can afford the expense.

  • With such low odds of victory in forfeiture cases, many innocent property owners simply walk away: A vast majority of federal civil forfeiture cases—88 percent by some estimates—never see the inside of a courtroom.

 

 

 

  • In these “administrative forfeiture” cases, the agency that originally seized the property, and stands to gain financially from keeping it, acts as investigator, prosecutor, judge, and jury all in one.

 

 

 

  • At least 11 states, plus the District of Columbia, have passed new reforms. Some reforms, such as those in New Mexico and Nebraska, prohibit asset forfeiture altogether in the absence of a criminal conviction.

 

 

 

  • Other states have opted for a more incremental approach, and have settled for new mandates in which law enforcement agencies must publicly report what has been seized — with the intent of identifying abuse for possible additional future reforms.

 

 

    • Once a federal forfeiture is completed, federal law enforcement agencies may retain and spend the proceeds or, through a program known as “equitable sharing,” transfer a portion of the proceeds—in practice, up to 80 percent—to any state and local agency “which participated directly in any of the acts which led to the seizure or forfeiture of the property.”

 

    • The Treasury and Justice Departments operate equitable sharing programs. Since 2000, both have doled out more than $5 billion in forfeiture revenues.[6] This money may be spent only by the seizing agency, and then only for law enforcement purposes. The funds are not subject to control by state and local legislatures.

 

 

  • While it is technically possible to sue a government agency to reclaim one’s possessions, this requires immense amounts of time and legal fees to pursue. Needless to say, civil asset forfeiture has become a lucrative source of income for law enforcement agencies. And, over the past 30 years, the practice has become widespread.

 

 

    • Many police departments have become dependent on CAF [civil asset forfeiture] to pad their budgets. In a survey of 1,400 county sheriffs and municipal police departments, 40 percent of responding agencies agreed that forfeiture provides a necessary budget supplement.

 

    • Heritage Foundation Report: “The fact that these reforms have been adopted within the past three years is remarkable. Only a few short years ago America’s civil forfeiture system was skewed at both the state and federal levels, seemingly invulnerable to public criticism and legal attack. Yet, with widespread support in their legislatures, states continue to enact significant forfeiture reform measures, often over the alarmist and overblown objections of police, sheriffs, and prosecutors. The message is clear: Outside the law enforcement community, support for the forfeiture status quo is remarkably thin.

 

    • What happened? US Attorney General Jeff Sessions who in a recent speech to the National District Attorneys Association doubled down on the practice and called for more asset forfeiture.

      “[W]e plan to develop policies to increase forfeitures,” Sessions declared this month, claiming that ” No criminal should be allowed to keep the proceeds of their crime.” Of course, given that asset forfeiture is by definition a seizure of property from a person without any criminal conviction, what sessions really means is this: “no person we suspect of being a criminal should be allowed to keep the proceeds of their crime.” In other words, in the mind of Jeff Sessions, due process means nothing.

 

 

  • Important Questions:

 

 

    • What is foundation or principle in question?

 

    • What historically relevant lessons exist? How so?

 

    • Are there a moral implications?

 

    • If so, what is it and what reasoning is the existing morality premised on?

 

  • Relevant Lessons or Related Ideas (Mentally unpack the topic by explaining and referencing the historical setting and philosophically driven divide behind the reasoning of the opposing left / right / libertarian divide):

 

 

  • Different Perspectives (Individual Co-Host Opinion and Analysis)

 

 

 

  • Application to Libertarianism:

 

 

    • How does it apply?
    • Is it congruent with libertarianism?

 

    • If so, how?

 

    • If not, how would a libertarian solve the problem?

 

    • Explain the reasoning behind the libertarian approach, not just the design of the solution:

 

Topic 2: President Trump-Attorney General Sessions Showdown

 

  • Important Facts: The feud between Donald Trump and Jeff Sessions started early on Tuesday, when President Trump, in an early tweetstorm lashed out at the attorney general whom he accused of taking a “VERY weak position on Hillary Clinton crimes.”

  • “Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!” Trump tweeted. Trump seems to be ignoring calls from almost everyone, from both sides of the aisle, in Congress to tone down the attacks on his own Attorney General.

 

  • The animosity between Trump and Sessions was first unveiled in an interview with The New York Times last week, when Trump said he would have never hired his attorney general if he knew he would recuse himself from the probe into ties between the Trump campaign and Russia. Trump in a tweet Monday morning also asked why the “beleaguered A.G.” wasn’t investigating ties between Clinton and Russia.

 

  • Overnight, the WaPo reported that Trump has floated possible replacements for Sessions including Sen. Ted Cruz and former New York City Mayor Rudy Giuliani, although subsequently Giuliani said on Monday, however, that he’s not being considered for the position.

 

  • In his latest tweet storm, Trump blasts Sessions for not replacing Acting FBI Director Andrew McCabe who was inexplicably allowed by Comey to oversee the Clinton email investigation despite the fact that his wife received substantial funding from Hillary Clinton ally Terry McAuliffe to fund her Senate campaign.

 

  • After a week of being publicly blasted by President Trump, Attorney General Jeff Sessions is reportedly preparing to launch a series of investigations into leaks that have emanated from various intelligence agencies since Trump’s election last November.

 

  • The first word of the leak investigations was leaked, as ironic as that is, to The Washington Post yesterday after a couple of anonymous “U.S. officials” said that Sessions and the Justice Department were preparing to announce more criminal investigations into leaks of sensitive intelligence that have appeared in media reports.

 

  • Meanwhile, Trump’s new Communications Director, Anthony Scaramucci, appeared on Fox & Friends earlier this morning to confirm the same.

 

 

  • Speaking at a press conference in the Rose Garden just yesterday, Trump said the following: “I want the attorney general to be much tougher on the leaks from intelligence agencies which are leaking like rarely have they ever leaked before at a very important level.  These are intelligence agencies, we can not have that happen. I’m very disappointed with the Attorney General.  But we will see what happens.  Time will tell.  Time will tell.”

 

 

 

  • Press Secretary and Communication Director Sean Spicer resigned on Friday morning, “telling President Trump he vehemently disagreed with the appointment of New York financier Anthony Scaramucci as communications director.”

 

 

 

  • While news of Scaramucci’s appointment first broke on Thursday night, White House chief of staff Reince Priebus tried to scuttle the appointment of Scaramucci due to a reported long-running feud with him, according to Breitbart, which adds that Steve Bannon, the ex-Executive Chairman of Breitbart News now the White House chief strategist, also objected to the Scaramucci appointment.

 

 

  • Scaramucci cautioned viewers to remember that it’s impossible for him to reach a point of absolutely no leaks, but pledged to clean up the White House press office.

    “People are suggesting I’m going to try to get the leaks down to zero, that is absolutely impossible in Washington, I’m learning a little about this town, but what I do want to have happen is people who report to me, if there are senior people in the administration trying to get them to leak information on each other, we’re getting that to stop right now.”

  • Finally, Mooch The Merciless told Fox:

    “D.C. is the kind of town where people are “very nice to your face,” but then stab you in the back. “I’m more of a front-stabbing person,” he said.

 

 

  • Secretary of State Rex Tillerson has told friends he will be lucky to last a year in his job, according to a friend, while two officials said national security adviser H.R. McMaster was frustrated by what he sees as disorganization and indiscipline on key policy issues inside the White House.

    A source familiar with the situation told Reuters that Tillerson was “very upset at not having autonomy, independence and control over his own department and the ability to do the job the way the job … is traditionally done.”

    The source said he had heard nothing about any possible departure, but added: “The situation doesn’t seem to be getting any better, and in some respects appears to be getting worse.

 

 

Topic 3: Trump Bans Transgender Individuals From Military Service

 

 

  • Important Facts:

 

 

Link To Study

 

 

  • The announcement represents a major shift in US military policy; the decision will affect nearly 150,000 active and/or retired/veteran people on service in the US military

 

 

 

  • What happened?

 

 

      1. In June 2016, then–Defense Secretary Ash Carter announced that transgender individuals would be able to openly serve in the armed forces. He referred at the time to a RAND study estimate that between 1,320 and 6,630 of the 1.3 million active-duty service members might be transgender.

 

      1. President Obama’s final defense secretary, Ash Carter, issued a directive last year that permitted transgender troops to serve in the military, and to undergo reassignment surgery. That step left a decision for Trump Secretary of Defense James Mattis to make a decision on whether to allow new transgender troops to enter the military.

      2. Defense Secretary James Mattis last month delayed the review of an Obama-era policy that allowed openly transgender people to join the military. Trump’s new policy goes further than Mattis’ delay in definitively barring transgender people from serving in the military:

        “We refer all questions about the president’s statements to the White House,” Defense Department spokesman Capt. Jeff Davis said in a statement. “We will continue to work closely with the White House to address the new guidance provided by the commander-in-chief on transgender individuals serving the military. We will provide revised guidance to the department in the near future.”

 

      1. The Defense Department estimates as many as 7,000 transgender troops serve in the active-duty force of 1.3 million.

 

      1. It wasn’t immediately clear what Trump’s announcement would mean for the approximately 250 transgender people now serving openly in the U.S. military.

 

        1. All soldiers in the U.S. Army are now required to take a 50-minute training course on transgender sensitivity.

 

  • Democrats reacted swiftly, calling the bill discriminatory and unpatriotic:

    Former Vice President Joe Biden, via Twitter

    “Every patriotic American who is qualified to serve in our military should be able to serve. Full stop.”

    Sen. Tammy Duckworth, D-Ill.

    “When my Black Hawk helicopter was shot down in Iraq, I didn’t care if the American troops risking their lives to help save me were gay, straight, transgender or anything else. All that mattered was they didn’t leave me behind. If you are willing to risk your life for our country and you can do the job, you should be able to serve — no matter your gender identity, sexual orientation or race. Anything else is discriminatory and counterproductive to our national security.”

    Sen. Kirsten Gillibrand, D-N.Y.

    “This morning transgender service members put on their uniform and showed up for their military duties to be told by their Commander in Chief via Twitter that he doesn’t want them in ‘any capacity.’ These service members are willing to die for their country, and this is an insult to their brave and honorable service. This new directive is harmful, misguided and weakens — not strengthens — our military. I will introduce legislation and will fight to overturn this discriminatory decision.”

    Sen. Tim Kaine, D-Va., via Twitter

    “I disagree with this decision. If you are qualified to serve, you shouldn’t be banned from the military.

    Also — did the president really consult military leaders on this? Four Star General told SASC [Senate Armed Services Committee] a week ago they wanted time to review this.”

 

 

Sen. Cory Booker, D-N.J., via Twitter

“Transgender Americans in military are heroes like anyone else risking their lives to defend us. @POTUS is wrong.”

 

Sen. Elizabeth Warren, D-Mass., via Twitter

“The only thing — only thing — that matters when it comes to allowing military personnel to serve is whether or not they can handle the job. By attacking thousands of troops, @realDonaldTrump makes clear that he cares more about extreme ideology than military readiness. @realDonaldTrump can pretend this is a military decision, but it isn’t. Banning troops on gender identity is shameful & makes us less safe.”

House Minority Leader Nancy Pelosi, D-Calif., via Twitter

“@POTUS @realDonaldTrump I promise you: this fight is not over. Hatred will never defeat #pride — both of country & of living your life as your true self.”

Chicago Mayor Rahm Emanuel

“On the 69th anniversary of President Truman’s order to integrate the military, President Trump has come down on the wrong side of history. He is choosing to divide us rather than unite us. Brave Americans who seek to selflessly serve this country in uniform should have the opportunity to answer the call to service, regardless of their identity. The Trump administration’s decision to ban transgender individuals from serving in the U.S. armed forces is another anachronistic, divisive and discriminatory policy that does nothing to enhance the safety and security of the country.”

 

 

  • Reactions from Republican lawmakers and conservative groups:

    Sen. John McCain, R-Ariz.

    “The president’s tweet this morning regarding transgender Americans in the military is yet another example of why major policy announcements should not be made via Twitter.

    The statement was unclear. The Department of Defense has already decided to allow currently serving transgender individuals to stay in the military, and many are serving honorably today. Any American who meets current medical and readiness standards should be allowed to continue serving.

 

 

There is no reason to force service members who are able to fight, train and deploy to leave the military — regardless of their gender identity. We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so — and should be treated as the patriots they are.”

Sen. Lindsey Graham, R-S.C.

“The commander in chief has a lot of latitude here. I don’t know what the policy proposal is. I don’t know why he decided what he did. But I think the right thing to do here is to have a hearing so we can hear from both sides.”

Rep. Vicki Hartzler, R-Mo.

“I’m pleased to hear that President Trump shares my readiness and cost concerns, and I’m glad to hear the president will be changing this costly and damaging policy. Military service is a privilege, not a right. We must ensure all our precious defense dollars are used to strengthen our national defense. Now, we can focus on rebuilding our military and addressing the growing threats around the world.”

American Family Association President Tim Wildmon

“AFA applauds President Trump for his courageous decision to end the usage of our military for social engineering and political correctness. American families deserve a military that is focused solely on readiness and national defense.”

Log Cabin Republicans

“This smacks of politics, pure and simple. The United States military already includes transgender individuals who protect our freedom day in and day out. Excommunicating transgender soldiers only weakens our readiness; it doesn’t strengthen it. The president’s statement this morning does a disservice to transgender military personnel and reintroduces the same hurtful stereotypes conjured when openly gay men and women were barred from service during the military’s ‘don’t ask, don’t tell’ era. As an organization that led the charge against that hateful policy, Log Cabin Republicans remains equally committed to standing up for transgender military personnel who put their lives on the line to keep us free.”

Family Research Council President Tony Perkins

“I applaud President Trump for keeping his promise to return to military priorities — and not continue the social experimentation of the Obama era that has crippled our nation’s military. The military can now focus its efforts on preparing to fight and win wars rather than being used to advance the Obama social agenda.

President Trump recognizes what the nation’s military leadership and the American people realize, this Obama policy makes no sense.

Now that we are assured that the Defense Department has its fiscal priorities in order, Family Research Council withdraws our opposition to increasing the budget of the Department of Defense through the ‘Make America Secure Appropriations Act’ and looks forward to seeing that legislation pass.”

 

 

  • LGBTQ rights activists and groups were outraged:

    Chelsea Manning, via Twitter

    “Today is further reason we should dismantle the bloated and dangerous military/intel/police state to fund #healthcare for all #WeGotThis.”

 

 

Human Rights Campaign President Chad Griffin

“Today Donald Trump has proven himself as unpatriotic as he is unfit to serve as commander in chief. He has put a target on the backs of the more than 15,000 transgender troops proudly serving in our military. This heinous and disgusting action endangers the lives of American service members, undermines military readiness and makes our country less safe. It is also the latest effort by Trump and Mike Pence to undo our progress and drag LGBTQ people back into the closet by using our lives as political pawns.”

Anti-Defamation League CEO Jonathan Greenblatt

“It’s a sad day when the president of the United States declares that transgender Americans are unwelcome in the United States military. This policy is deeply objectionable — it devalues individual Americans and is blatantly discriminatory. We’ll fight against this unpatriotic ban of transgender troops. We cannot let bigotry stop Americans from serving their country. It is especially bitter and ironic that President Trump is attempting to place unnecessary and discriminatory barriers against transgender military service on the very anniversary of President Harry Truman’s executive action in 1948 to desegregate the military.”

American Civil Liberties Union

“This is an outrageous and desperate action. The thousands of transgender service members serving on the front lines for this country deserve better than a commander in chief who rejects their basic humanity,” said Joshua Block, the staff attorney for the ACLU’s LGBT and HIV projects.

Let us be clear. This has been studied extensively, and the consensus is clear: There are no cost or military readiness drawbacks associated with allowing trans people to fight for their country. The president is trying to score cheap political points on the backs of military personnel who have put their lives on the line for their country.

There is no basis for turning trans people away from our military, and the ACLU is examining all of our options on how to fight this. For any trans service member affected by today’s announcement: Please get in touch with us, because we want to hear from you.”

GLAAD President and CEO Sarah Kate Ellis

“President Trump today issued a direct attack on transgender Americans, and his administration will stop at nothing to implement its anti-LGBTQ ideology within our government — even if it means denying some of our bravest Americans the right to serve and protect our nation. Today further exposed President Trump’s overall goal to erase LGBTQ Americans from this nation. Trump has never been a friend to LGBTQ Americans, and this action couldn’t make that any more clear.”

National Center from Transgender Equality Executive Director Mara Kiesling

“This is worse than ‘don’t ask, don’t tell.’ This is ‘don’t serve, don’t serve.’ This is an appalling attack on our service members; it is about bigotry rather than military readiness, reason or science. It is indefensible and cannot stand. The president wants to discard thousands of trained and skilled troops who are already serving honorably and done nothing but be honest about who they are. To turn away qualified recruits simply because of who they are is a shameful way to show our country’s gratitude to the people who serve our country.”

 

 

  • Important Questions:

 

 

    • What is foundation or principle in question?

 

    • What historically relevant lessons exist? How so?

 

    • Are there a moral implications?

 

    • If so, what is it and what reasoning is the existing morality premised on?

 

 

  • Relevant Lessons or Related Ideas (Mentally unpack the topic by explaining and referencing the historical setting and philosophically driven divide behind the reasoning of the opposing left / right / libertarian divide):

 

 

 

  • Different Perspectives and Opinions (Individual Co-Host Opinion and Analysis)

 

 

 

  • Application to Libertarianism:

 

 

    • How does it apply?
    • Is it congruent with libertarianism?

 

    • If so, how?

 

    • If not, how would a libertarian solve the problem?

 

    • Explain the reasoning behind the libertarian approach, not just the design of the solution:

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