2028 agenda items: Prosecutions and Clawbacks of ill-gotten gains [View all]
I was thinking about the massive and costly project we will face as we embark on the monumental task of building a government that serves the collective good effectively through repaired and reformed institutions. A critical part of that task is rooting out and prosecuting perpetrators that are now embedded throughout the executive branch and its co-opted agencies.
It seems to me that the accomplices and perpetrators of the violations and corruption must somehow be made to pay -- in actual dollars as well as being held accountable in criminal prosecutions.
For the hell of it, I asked AI (Gemini) this question. Take with whatever grains of salt you apply to all AI, but I think it provides food for thought.
Question:
Assuming democrats take control in 2028, could they pass an act to confiscate ill gotten gains by corporate entities and individuals under the second trump administration? if so, descibe details of the act that would be consistent with the u.s. constitution.
Answer:
To be consistent with the U.S. Constitution, such legislation would need to focus on civil forfeiture or specialized "clawback" mechanisms rather than targeting specific individuals by name.
Constitutional Constraints
Bill of Attainder Clause (Article I, Section 9): Congress cannot pass a law that singles out specific individuals or corporations for punishment without a trial.
Ex Post Facto Clause (Article I, Section 9): Congress cannot retroactively criminalize behavior that was legal at the time it occurred.
Due Process Clause (Fifth Amendment): The government cannot seize property without providing notice, a hearing, and an opportunity to contest the seizure.
Takings Clause (Fifth Amendment): The government must provide just compensation if it takes private property for public use.
Components of a Constitutional "Clawback" Act:
An Act designed to recover "ill-gotten gains" would likely need to include the following elements to withstand legal challenges:
Focus on Illegality, Not Policy Disagreements: The act must define "ill-gotten gains" as profits derived from actions that violated existing federal laws or regulations at the time, not just actions that the new administration disagrees with policy-wise.
Civil In Rem Forfeiture: The proceedings should be in rem (against the property/money itself) rather than in personam (against the person). This allows the government to argue the funds are "tainted" by illegal activity (e.g., fraud, bribery, violation of contracting rules).
Standard of Proof: The government would likely need to prove, by a preponderance of the evidence, that the funds were connected to specific, illegal misconduct.
Repayment of Improper Payments: If the gains stem from federal contracts or grants that were illegally obtained or where contract terms were violated, the government can use existing recoupment processes to claw back those funds.
Innocent Owner Defense: The act must allow businesses or individuals to defend themselves by proving they did not know or participate in the illegal activity.
Potential Legal Mechanisms
Corporate Transparency Act (CTA) Strengthening: Building on existing law, Congress could strengthen beneficial ownership reporting requirements to identify individuals who profited from shell companies used for illegal gains.
Expanded Civil Forfeiture (18 U.S.C. §§ 981–985): Utilizing existing statutes that allow federal agencies to seize assets connected to money laundering, fraud, or bribery.
Strengthening SEC Clawback Rules: Expanding on Dodd-Frank rules, a new law could require the clawback of incentive-based compensation for executives if their companies required an accounting restatement due to misconduct during that period.
While such an act is theoretically possible, it would likely result in extensive litigation in the federal court system, which would ultimately determine whether the confiscations were lawful or unconstitutional punishments.
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