It seems that President Trump is none too fond of Jeff Sessions and Rod Rosenstein these days. Neither am I, though not for the same reasons. Trump is unable to distinguish his own personal interests from those of his office and the nation he was elected and is pledged under oath to serve, so he judges everything by what it means to him, not to the American people. That won’t change. My anger at Sessions and Rosenstein has to do with something entirely different: their eagerness to violate the Fourth Amendment to the Constitution. Unlike Trump and Sessions, I still care about the Constitution and the Bill of Rights.
You can read all about it in the Washington Post. That’s right: It’s now OK again for police to pull over drivers or stop citizens for reasons they do not have to divulge, and to seize cash and other values from them before they are charged with any crime, and to keep the loot even if they are never charged, let alone convicted, of any crime. The cops get to keep the money, although in the past and now again they are supposed to turn over some chunk of it to the Feds. But since professional-level accounting methods have never been applied to this lucre, the Feds are as likely to have been fleeced as everyone else victimized by this outrage. We don’t even know how much money we’re talking about: One estimate holds that between 2001 and 2015 we’re talking $2.5 billion taken from nearly 62,000 citizens, with no warrants or any criminal charges involved.
The Fourth Amendment protects American citizens from this sort of shakedown—or is supposed to. We all have the right “to be secure in [our] persons, houses, papers and effects, against unreasonable searches and seizures.” It seems that there are some Americans who have no knowledge of the Fourth Amendment; even opponents who find such policies outrageous rarely raise the Fourth Amendment as part of their argument. I find this puzzling and sort of creepy. Obviously, it takes a lawyer of a certain kind to conclude that police-state tactics like these are somehow compatible with the Bill of Rights, but whenever a hefty fee is involved, some lawyers will always be found to make any argument, no matter how scurrilous.
This new decision is a reversal of one made late in the Obama period by Attorney General Eric Holder, and it pertains to a 1984 law, passed during the Reagan Administration. This time around, the rules are supposedly more restrictive than they were before the Obama Administration banned the practice in 2015, because Rosenstein, at least, admits that widespread abuses existed in the past. Rosenstein now assures us that these abuses will not return en masse, although he left himself an out by noting that mistakes will happen from time to time. Read the Post article; it gives some of the background and is otherwise illuminating.
One thing the WP article doesn’t go into is why on earth it took the Obama Administration six and a half years to get around to reversing this outrageous, unconstitutional practice. One might have thought this would be a no-brainer from the get-go. Ah, but Eric Holder turns out to be a more interesting character than some may have thought—and that’s no to speak of possible resistance to reform that might have come from elsewhere in the Administration—the FBI within Holder’s Justice Department, the Department of Homeland Security, and perhaps elsewhere. As far as I know, the story of the interagency discussion of this in the Obama Administration has never yet been told. I, for one, would like to hear it.
What do I mean when I say that Eric Holder is more interesting than a lot of people may realize? Well, to American alt-right observers and other closet racists, Holder’s appointment to be Attorney General by a black President was just an obvious example of insider Democratic Party affirmative action on steroids—and same for Loretta Lynch, Jeh Johnson, and others. (Never mind that Colin Powell and Condoleezza Rice were Secretaries of State in a Republican Administration.) It’s actually a lot more complicated than that.
When it comes to crime fighting, Holder’s career shows him to be a hard-ass, and a hard-ass willing to navigate some excruciating tradeoffs concerning cops and black people. As law professor and former public defender James Forman, Jr., tells us in his recent book, Locking Up Our Own: Crime and Punishment in Black America, as U.S. Attorney for the District of Columbia during the 1900s, Holder equated tough anti-crime measures with civil rights, asking: “Did Martin Luther King successfully fight the likes of Bull Connor so that we could lose the struggle for civil rights to misguided and malicious members of our own race?” Richard Thompson Ford points out in a forthcoming TAI review essay that at the time Holder advocated the use of pre-textual traffic stops and searches to uncover concealed weapons—a version of “driving white black” policing. Holder acknowledged that black drivers would be stopped disproportionately, but pointed out, as Forman tells us, that “94 percent of black homicide victims were slain by black assailants.” Essentially, Holder argued that when the stakes are very high, burdening racial minorities—young men in particular—with a disproportionate share of the cost of law enforcement is an acceptable price to pay.
That doesn’t by itself explain why it took so long for the Obama Administration to get around to this business, but it does show, perhaps surprisingly to some, that the politics of policing—as well as, say, the politics of prosecuting white-collar crime, another Holder portfolio over the years—is a lot more complex from inside the government than it appears to be from the outside.
That said, it should be no surprise to anyone who has been paying attention that Sessions would be eager to overturn the Obama Administration’s ruling. A bit more than two years ago, back in April 2015, hearings were held concerning the proposed Obama Administration reversal of the Reagan-era practice. Here is how I described what happened at the time:
. . . during a hearing before Senate Judiciary Committee, a national law enforcement organization testified in favor of keeping the law as it is, and some Senators, notably Jeff Sessions (R-AL), supported this view. But when Fraternal Order of Police National President Chuck Canterbury claimed that the proposal to restrict the law would deny local and state police departments “hundreds of millions of dollars to fight crime and terrorism”, that was way too much for Senator Charles Grassley (R-IA). Grassley dismissed the statement outright, noting that the law had created “perverse incentives” for police “to cut corners and seize cash and property without clear evidence of a crime.” Grassley added that the police position “demonstrates the absurdity of a system of justice in which some in law enforcement appear to value funding their own operations over protecting civil rights.” Even Senator Patrick Leahy (D-VT), who approves of the law on principle, admitted, “We have all seen the troubling reports. Roadside stops that resemble shakedowns. Seizure of bank accounts.”
These seizures in the past, often directed disproportionally against minorities, very often did not resemble shakedowns—they were shakedowns. And now, supposed constraints or not, they are going to return.
Pat Leahy is a lost cause in so many ways, but you, Senator Grassley, bless your Midwestern soul, are not. So here is my question for you: Are you going to take this lying down? Do you feel any less strongly about this now than you did in April 2015? Please make some noise. Please stand up for the Constitution and the Bill of Rights. As a Republican no one will plausibly be able to dismiss your concerns as partisan shrapnel. Senator, we’re depending on you.