. . . So the government’s theory that civil asset forfeiture is “pardon proof” remains untested and unresolved. . . .
I. Introduction
The scope and effect of preemptive presidential pardons has long been a subject of constitutional and legal debate, but recent developments once again have thrust the issue into the national spotlight. At the end of his presidency, President Biden issued a series of preemptive pardons, reigniting discussions about the limits and implications of the executive pardon power. While a presidential pardon eliminates an individual’s criminal liability, it leaves unanswered questions about the fate of assets connected to the underlying offense—either as proceeds of the crime or as instrumentalities used in the crime’s commission.
Perhaps the most recent case touching upon these issues involved the criminal prosecution of Paul Manafort, President Trump’s former campaign manager during his first presidential campaign. In connection with Manafort’s criminal convictions on such charges as bank fraud, tax evasion, and failure to register as a foreign agent, the special counsel sought forfeiture of various real estate and financial assets held by Manafort under both federal criminal and civil forfeiture statutes. While President Trump’s December 23, 2020 pardon of Manafort indisputably removed his criminal convictions, the pardon left a cloud over the status of assets seized by the government for forfeiture. A short-lived effort to contest the forfeiture of all Manafort assets following the pardon ended in an agreement releasing only three properties and one bank account for which a final order of criminal forfeiture had not been entered. As yet, no court has formally ruled on the effect of a pardon in shielding assets from forfeiture.
The ambiguity is due to the legal underpinnings of the two different procedures established by Congress for asset forfeiture: criminal forfeiture, which occurs following a criminal conviction, and civil forfeiture, which can be carried out in the absence of any criminal conviction. While a pardon absolves an individual from criminal prosecution and precludes any criminal penalty, it arguably does not extinguish the government’s authority to seize and “civilly” forfeit property derived from or used in the commission of a crime. In civil forfeiture, the property, not the person, is scrutinized. And it can be forfeited if the government proves by a mere preponderance of evidence that it is either proceeds from or was used in the commission of a crime.
II. The Legal Framework of Modern Federal Asset Forfeiture
Federal law provides two primary mechanisms for asset forfeiture: criminal forfeiture and civil forfeiture. Criminal forfeiture, governed by statutes such as 18 U.S.C. § 982 and 21 U.S.C. § 853, requires a criminal conviction and operates in personam against a defendant. In contrast, civil forfeiture, authorized by 18 U.S.C. § 981 and 21 U.S.C. § 881, is an in rem proceeding against the property itself, allowing the government to seize assets regardless of whether a conviction is obtained.
The civil forfeiture statutes are expansive, permitting forfeiture of both the proceeds of crime and the instrumentalities used in the crime’s commission. For example, under 18 U.S.C. § 981(a)(1)(C), property derived from or constituting proceeds of “specified unlawful activity,” including racketeering, money laundering, drug trafficking, fraud, bribery, and certain violent crimes, is subject to forfeiture. Additionally, 18 U.S.C. § 981(a)(1)(A) expands the scope of the authorized forfeiture to property “involved in” money laundering offenses. Likewise, 21 U.S.C. § 881(a)(6) permits forfeiture of proceeds traceable to drug offenses, and 21 U.S.C. § 881(a)(7) allows forfeiture of real property used to commit or facilitate the drug offenses.
Civil forfeiture is thus an action against the seized property itself that proceeds separately from the criminal action against the individuals involved in the crime. Although civil forfeiture actions are often stayed pending resolution of the related criminal case, the ultimate outcome of the criminal proceeding does not determine the success or failure of the forfeiture action. Also, unlike criminal forfeiture, which requires a conviction based on proof beyond a reasonable doubt, civil forfeiture requires the government only to establish by a preponderance of the evidence that the property was derived from or used in criminal activity.
The independent nature of civil forfeiture underscores why a presidential pardon, which removes criminal liability, does not necessarily prevent the government from pursuing the forfeiture of assets linked to the pardoned conduct. The law treats the property as culpable in its own right, meaning that the government’s forfeiture authority arguably remains intact regardless of whether the owner has been prosecuted or pardoned. Unlike criminal forfeiture where the assets’ forfeiture may be viewed as a criminal penalty, civil forfeiture maintains the fiction that criminal proceeds and instrumentalities are themselves guilty and may be seized regardless of any individual’s liability for the underlying criminal conduct. It was against this backdrop that federal prosecutors and Manafort contended in determining the impact of President Trump’s pardon on assets seized for forfeiture.
III. The Pardon of Paul Manafort
President Trump’s pardon of Paul Manafort did not surprise Special Counsel Robert Mueller’s team. At the outset of their efforts to pursue asset forfeiture against Manafort, they anticipated the possibility of a presidential pardon and structured their approach accordingly. Recognizing that a pardon could nullify criminal forfeiture, the prosecutors took care to seek forfeiture under both criminal and civil forfeiture statutes. Special counsel also ensured that Manafort’s plea agreement explicitly subjected his assets to forfeiture to further mitigate the risk of a pardon shielding his wealth. See Mueller Investigation’s Lead Prosecutor on Trump’s Pardons, NPR News All Things Considered (Dec. 24, 2020, 3:35 PM ET).
During a televised interview, Andrew Weissmann, one of the lead prosecutors on the Mueller team, expressed the opinion that while a pardon eliminates the criminal conviction necessary for criminal forfeiture, it does not impact civil forfeiture. Id. Specifically, Mr. Weissmann explained:
One of the things that we did anticipating that he might get a pardon is that when Paul Manafort pled guilty in the District of Columbia, we made sure that he agreed with respect to the forfeiture that it was going to be imposed criminally and civilly.... With a pardon, that wipes away attributes of a criminal conviction. But you cannot be pardoned for civil liability, so that's something that will stand. And there's no ability for Paul Manafort now to go back and say, you know, I want my money back.
Id.
Nevertheless, six days after his pardon, Manafort and his creditors quickly moved to contest the forfeiture of his assets, relying heavily on early Supreme Court precedent. Manafort asserted that his pardon extends to “the punishment prescribed for the offence and the guilt of the offender” and “removes the penalties and disabilities” resulting from conviction. Dkt 124 at 2-3, Case 1:18-mc-00167-ABJ (D.D.C. Dec. 29, 2020) (quoting Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866)). Manafort further argued that Supreme Court precedent required the “return of forfeited property belonging to pardoned [individuals] where proceeds had not yet been distributed or paid to others.” Id. (citing Osborn v. United States, 91 U.S. 474, 479 (1875)). And while noting that “it is hornbook law that a criminal conviction is the prerequisite for criminal forfeiture, and absent a conviction, the government may not criminally forfeit a defendant’s property,” Manafort made no mention of the effect of civil forfeiture on his seized assets. Id. (citing 21 U.S.C. § 853(a); United States v. Young, 330 F. Supp. 3d 424, 428 (D.D.C. 2018)).
In response, the government requested additional time to evaluate the legal effect of the pardon on asset forfeiture and to respond to Manafort’s motion to vacate the forfeiture of his assets. Special counsel noted that Manafort was relying on “case law regarding pardons and forfeiture emanat[ing] from decisions from the 1800’s, prior to the enactment of the modern forfeiture statutory framework that governs these proceedings.” Dkt 126 at 2, Case 1:18-mc-00167-ABJ (D.D.C. Jan. 8, 2021). Specifically, special counsel pointed out that “[i]n his plea agreement, Manafort agreed to both criminal and civil forfeiture of the assets before this Court.” Id. at 3. The requested extension was intended to “permit the government an opportunity to determine whether it will oppose the relief Petitioners request and to determine whether it has available to it any other avenues to forfeit these properties.” Id.
Before any further briefing was submitted on these issues, the government and Manafort reached an agreement that resulted in the court lifting forfeiture restraints on three properties and one bank account, specifically those for which no final criminal forfeiture order had been entered. See Dkt 131, Case 1:18-mc-00167-ABJ (D.D.C. Feb. 26, 2021). These included Manafort’s Brooklyn townhouse, a Hamptons property, an apartment in New York’s Chinatown, and a bank account at The Federal Savings Bank. Id. The legal rationale behind this resolution remains unclear, but it is notable that all released assets were subject to, at least, criminal forfeiture that required a valid criminal conviction—something the pardon eliminated. See Superseding Indictment, Crim. No. 17-201 (ABJ) (S-3) (D.D.C. Feb. 23, 2018).
While the competing motivations for the agreement remain uncertain, it was clear that the government had been intent on “determin[ing] whether it has available to it any other avenues to forfeit these properties.” Dkt 126 at 2, Case 1:18-mc-00167-ABJ (D.D.C. Jan. 8, 2021). In hindsight, the decision to seek both civil andcriminal forfeiture against the same assets may have muddied the impact of the pardon enough to convince the government to forgo the four remaining seized assets in exchange for Manafort’s agreement to forfeit his other properties. See Josh Gerstein, Trump Pardon Unwinds Some Manafort Forfeitures, Politico (Feb. 26, 2021) (“The department has determined that due to President Trump’s full and unconditional pardon of Paul Manafort, it is necessary to dismiss the criminal forfeiture proceedings involving the four assets which were the subject of the on-going forfeiture ancillary proceedings”). This “bird-in-the-hand” agreement may well have been worth it to the government as the agreed-to forfeited assets were valued at over $26M while the released assets were valued at around $11M. Id.
And while the press at the time took note of Mr. Weissmann’s earlier televised opinion that the parallel civil forfeiture proceedings would preclude the effect of any presidential pardon on the forfeiture of Manafort’s assets, “the Justice Department filing . . . made no mention of that.” Id. So the government’s theory that civil asset forfeiture is “pardon proof” remains untested and unresolved. Nevertheless, the key legal principles undergirding that theory are well supported by existing Supreme Court precedent.
IV. Relevant Supreme Court Precedent
There is no Supreme Court ruling that directly resolves whether a pardon, preemptive or otherwise, bars civil in rem forfeiture. However, several of the Court’s decisions establish that civil forfeiture is distinct from criminal punishment and remains viable, at least, in the face of an acquittal of the underlying criminal charges and presumably in the event of a presidential pardon.
For example, in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the Supreme Court expressly held that civil forfeiture proceedings can proceed independently of criminal convictions, even after the defendant is acquitted. The case involved a firearms dealer, Patrick Mulcahey, who was charged with selling firearms without a license. Although Mulcahey was acquitted of the criminal charge after raising an entrapment defense, the government pursued an in rem civil forfeiture action against the firearms he possessed under 18 U.S.C. § 924(d). The district court granted forfeiture, but the Fourth Circuit reversed, concluding that the forfeiture was punitive and barred by principles of collateral estoppel and double jeopardy.
The Supreme Court reversed the Fourth Circuit, holding that the civil forfeiture proceeding was proper despite the acquittal. The Court emphasized that civil forfeiture is a remedial action distinct from criminal prosecution. Specifically, the Court reasoned that “an acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” One Assortment, 465 U.S. at 361. The Court emphasized that the government’s burden of proof in a civil forfeiture proceeding requires only a preponderance of the evidence, a significantly lower threshold than the beyond-a-reasonable-doubt standard required for criminal convictions. In other words, “the jury verdict in the criminal action did not negate the possibility that a preponderance of the evidence could show that Mulcahey was engaged in an unlicensed firearms business.” Id. at 362. The Court was therefore satisfied that the difference in evidentiary burdens “precludes the application of the doctrine of collateral estoppel.” Id.
The Court also rejected Mulcahey’s double jeopardy argument, finding that Congress intended forfeiture provisions like § 924(d) to be civil and remedial, rather than punitive. Id. at 362-63. Importantly, the Court noted that the civil forfeiture statute incorporated the in rem forfeiture procedures found in the Internal Revenue Code rather than the in personam procedures employed for criminal forfeiture, reinforcing the notion of a civil remedial rather than criminal punitive purpose. Id. at 363. Finally, the court reiterated its earlier decisions permitting Congress to “impose both a criminal and a civil sanction” for the same act or omission and expressly found that the civil forfeiture sanction was not “so punitive . . . in effect” that it should be characterized as a criminal penalty. Id. at 365.
The Court’s One Assortment decision did not go unnoticed and quickly caught the attention of Congress, which acted to supersede the decision’s precise holding as to the civil forfeiture of firearms only. See 1986 amendments to 18 U.S.C. Sec. 924(d), P.L. No. 99-308, Sec. 104, 100 Stat. 449, 457 (1986). Due, in part, to sensitivities concerning Second Amendment gun ownership rights, the statute, 18 U.S.C. § 924(d), was amended to preclude civil forfeiture of firearms in the event of an acquittal on certain firearms-related offenses. Id. Significantly, the Court’s One Assortment decision did not otherwise prompt a wholesale revision of the civil forfeiture statutes. Instead, Congress conspicuously declined the opportunity to amend the civil forfeiture rules for other asset classes to specify that the absence of criminal culpability for the underlying crime precludes civil forfeiture.
The Court’s One Assortment decision drew heavily from its earlier findings and analyses in Helvering v. Mitchell, 303 U.S. 391 (1938). In that case, the Supreme Court addressed whether a civil tax penalty could be imposed after a defendant was acquitted in a related criminal tax prosecution. The case involved Charles E. Mitchell, a prominent banker, who had been acquitted of criminal tax fraud charges but was later subjected to a 50% civil fraud tax penalty for the same conduct. The Court ruled that the imposition of the civil penalty did not violate double jeopardy principles, emphasizing that “Congress may impose both a criminal and a civil sanction in respect to the same act or omission” Id. at 399. The Court explained that civil penalties, including forfeiture, are fundamentally remedial rather than punitive, serving to compensate the government for lost revenue or to deter future unlawful conduct.
The Court distinguished the civil penalties from criminal punishment by examining their nature and legislative intent. It held that “[r]emedial sanctions may be of varying types,” including forfeiture of goods, monetary penalties, and administrative sanctions Id. Unlike criminal penalties, which require proof beyond a reasonable doubt, civil penalties are subject to a lower burden of proof and are designed to recover losses rather than impose retribution. The Court concluded that the additional tax penalty imposed on Mitchell was not a second punishment but a lawful remedial measure “provided primarily as a safeguard for the protection of the revenue and to reimburse the Government for the heavy expense of investigation and the loss resulting from the taxpayer’s fraud.” Id. at 401. Moreover, “[t]hat Congress provided a distinctly civil procedure for the collection of the additional 50 per centum indicates clearly that it intended a civil, not a criminal, sanction.” Id. at 402.
These cases collectively reinforce the notion that civil forfeiture remains a distinct legal mechanism used to recover property tied to unlawful activity, rather than a punitive measure against the individual who acquired or used the property in a crime. Moreover, the act of civil forfeiture does not deprive that individual of any lawful ownership interest in the property. Instead, a judgment of forfeiture acts to perfect the government’s title in the forfeited property which is then presumed to relate “back to the date of the commission of the act that made the specific property forfeitable.” United States v. 92 Buena Vista Avenue, 507 U.S. 111 (1993) (emphasizing that the concepts of perfection and relation back of title provides intervening owners of the property the ability to assert an “innocent owner” defense to the forfeiture).
The rationale underlying these decisions is particularly relevant to preemptive pardons. Unlike a conviction-dependent criminal forfeiture, which a preemptive pardon can negate, civil forfeiture focuses on the legal status of the property itself. Because title to forfeitable property is ultimately deemed to vest in the government at the time of the offense rather than upon conviction, an executive pardon granted before prosecution in no way severs the property’s connection to the unlawful activity. This principle underscores why courts have historically treated civil forfeiture as immune to the effects of an acquittal in the parallel criminal case, ensuring that illicitly acquired assets cannot be shielded merely by a failure to convict the accused defendant or, by extension of that rationale, exercise of executive pardon power.
V. Conclusion
The distinction between criminal and civil forfeiture plays a crucial role in determining the effect of a preemptive presidential pardon on seized assets. As suggested by the briefing and public comments of special counsel in the Manafort case, while a pardon eliminates the conviction necessary for criminal forfeiture, it should not impact the government's ability to pursue civil forfeiture. Supreme Court precedent establishes that civil forfeiture serves a remedial purpose, functioning independently of criminal liability and that title to forfeitable property ultimately vests in the government at the time of the unlawful act, making the owner’s subsequent or preemptive pardon irrelevant. Thus, while a preemptive pardon removes personal legal liability, it does not shield assets from civil forfeiture statutes designed to recover unlawfully acquired property and prevent individuals from retaining the financial benefits derived from illegal conduct. And so, while a preemptive presidential pardon may free its recipient from criminal liability, it offers no refuge from civil asset forfeiture—reminding us that, in this realm of law, the only thing to fear is forfeiture itself.
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