From the description of the relevant laws, it ain’t that hard to do.
Asset forfeiture is a term used to describe the confiscation of assets, by the state, which are either (a) the proceeds of crime or (b) the instrumentalities of crime, and more recently, terrorism. Instrumentalities of crime are property that was used to facilitate crime, for example cars used to transport illegal narcotics. The terminology used in different jurisdictions varies. Some jurisdictions use the term “confiscation” instead of forfeiture. In recent years there has been a growing trend for countries to introduce civil forfeiture. Such proceedings may be brought in the USA, Australia, the UK, Ireland, Italy, South Africa, various Canadian Provinces and Antigua.
There are two types of forfeiture cases, criminal and civil. Almost all forfeiture cases today are civil. In civil forfeiture cases, the US Government sues the item of property, not the person; the owner is effectively a third party claimant. Before the Civil Asset Forfeiture Reform Act was enacted in 2000, the government only had to establish probable cause that the property was subject to forfeiture; the owner had to prove on a “preponderance of the evidence” that it was not. The new law holds the government to the “preponderance of evidence” standard and shifts the burden of proof to the federal government instead of the property owner. The property owner still need not be found guilty of any crime. In contrast, criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender. Since the government can choose the type of case, a civil case is almost always chosen. The costs of such cases is high for the owner, usually totaling around $10,000 and can take up to three years.
The justification for doing so would be easy: We have, by now, massive evidence that crimes were committed, in the case of Goldman Sachs, outright fraud, in the case of BP, negligence.
A preponderance of the evidence that crimes were committed would be all that would be required; the purpose of the civil asset forfeiture law is to make it possible to enforce laws against organized crime.
I would argue that, in the methodology Goldman Sachs and similar banks have used to shield themselves from all accountability would be to all intents and purposes similar to the actions of organized crime: no one saw nothin’, no one “remembers” anything, and all the criminal fraud, negligence and malfeasance is contained in house and shielded by a misuse of the law – binding legal confidentiality agreements and conflict of interest waivers.
The law, make no mistake, is a bad law, in my opinion. It has been used in the past to prosecute the ill conceived “war on drugs”, to take the property of perceived drug runners in violation of due process.
Why not use a bad law, though, to accomplish something to uphold the rule of law?
But this makes it even more of a good idea to use civil asset forfeiture to attack the assets of the criminal corporate enterprises. Either the suits would be successful, in which, it’s a victory for the People, or the Goldman Sachs, BP, et. al, would win, in which case, a threat to due process under the Constitution would be removed. IT WOULD STILL BE A VICTORY FOR THE PEOPLE.
It makes sense to use a wedge to both make life a living hell for the criminal enterprises operating in our country and also use any potential constitutional blowback to otherwise uphold the constitution and the rule of law.