President Donald Trump is having a bit of a challenge actually finding the funding to build the border wall he promised in his campaign.
Sen. Ted Cruz (R-Texas) who himself campaigned for president partly by saying he would be even tougher on illegal immigrants than Trump, thinks he has a solution. He wants to use federal asset forfeiture funds to build the wall.
Axios notes that Cruz wants to introduce legislation named after famed Mexican drug kingpin El Chapo to help pay for the wall. The feds are trying to seize $14 billion from the drug lord. Cruz said in a statement, "Fourteen billion dollars will go a long way toward building a wall that will keep Americans safe and hinder the illegal flow of drugs, weapons, and individuals across our southern border."
There are a couple of issues to worry about here (besides the most obvious one that the wall is a stupid idea that won't work and should be abandoned). First is the likely incorrect assumption that the federal government will be able to get its hands on all that El Chapo money. Axios notes that Cruz's proposed bill (he hasn't even posted the text up on his own Senate page yet so we don't really know what it says) would "use asset seized from drug lords such as El Chapo." Italics mine. Cruz's statement on his Senate page uses similar language.
It doesn't sound like this legislation would be confined to taking money from El Chapo. This is significant because police and prosecutors and like-minded supporters of asset forfeiture always attempt to present this process as taking the ill-gotten gains of the drug cartels and keeping it to fund law enforcement.
But that's not actually how it plays out. In reality, police and prosecutors tend to abuse the civil asset forfeiture process to harass travelers who are carrying cash, claim that it's all part of the drug trade, and attempt to keep it for themselves without ever providing any proof a crime happened. Civil asset forfeiture has become a massive source of controversy because it's been abused to take money and property from citizens without due process in order for police departments to fund themselves.
So if this legislation is not written in such a way that it requires these "drug kingpins" to actually be convicted of crimes before their money is seized, and the Trump administration becomes dependent on using this money to pay for this wall … you can see where this is going, can't you? FBI, DEA officers and federal prosecutors are going to have even more incentives and pressures to attempt to seize the property of greater numbers of people. And they're going to fight tooth and nail to keep from having to give it back even if they never actually charge people with federal crimes.
Cruz has previously said that he supports asset forfeiture reforms as a "property rights" issue. But he's flip-flopped on criminal justice issues before, supporting the easing of mandatory minimum sentences before turning against changes. If he wants that wall hard enough (and he does want that wall), is he willing to turn is back on asset forfeiture abuses?
IMPORTANT UPDATE: The legislation has been posted and will apply specifically only to actual criminal forfeiture of the assets of a convicted member of a drug cartel. Read the proposed text here.