PLATFORM : Invasion of the House-Snatchers

The U.S. Drug Enforcement Agency’s seizure of an attorney’s Malibu home--even though he was not charged with any crime--typifies a disturbing trend.

Until recently, the government’s power to seize a person’s property before a trial was very limited, occurring primarily in instances where there was reason to fear that the individual would dissipate the assets before a judgment. In the last decade, new laws have given the government broad authority to seize property that allegedly was obtained with illegal funds, such as drug money.

In two 1989 decisions, the Supreme Court upheld the government’s authority to seize a criminal defendant’s assets before trial, even though the effect might be to keep the defendant from paying for the attorney of choice.

The seizure of the Malibu lawyer’s home goes beyond what the Supreme Court considered. First, the attorney has not been, and apparently will not be, charged with any crime. Although there will be a civil forfeiture proceeding to determine if the government can keep the house, the government is attempting to accuse someone of profiting from a crime, while avoiding the burden it would face in a criminal trial.

Seizing assets from a lawyer is particularly troubling. There is a message to attorneys that they must fear that the government could seize fees received from clients as ill-gotten gains. This creates a potential tool for harassment of criminal-defense lawyers and a grave threat to the fair administration of justice.