The plan to seize Russian oligarchs’ assets sets an appalling precedent

The Bible’s Eighth Commandment prohibits thievery or stealing.  It is understandable, nevertheless, that on Wednesday, the House of Representatives, infuriated by Russian aggression against Ukraine, would vote 417-8 to authorize President Joe Biden to steal the assets of Russian oligarchs allegedly linked to President Vladimir Putin to benefit the people of Ukraine.   

The vote for H.R. 6930, the “Asset Seizure For Ukraine Reconstruction Act,” may be politically astute, but it is not law and is an appalling precedent.    

Craving vengeance, British Prime Minister Winston Churchill urged summary executions of Nazi leaders accused of the worst atrocities in the history of mankind. Cooler heads prevailed. Chief Prosecutor Robert Jackson explained before the Nuremberg Tribunal: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”  

Like summary executions, H.R. 6930 authorizes shocking violations of due process and separation of powers. It endows the president with the authority to confiscate property upon an unreviewable determination that “Russia remains engaged in a territorial conquest in Ukraine.” 

No statutory guidelines limit the president’s discretion. President Joe Biden, for example, could determine that Russia’s 2014 annexation of Crimea or control of the Donbas region has made it permanently engaged in a conquest of Ukraine. The delegation lacks a constitutionally required limiting principle.   

Upon making the statutory determination, the president is empowered to confiscate assets valued by him at over $5 million within the jurisdiction of the United States if they are owned by Russian oligarchs whom the president proclaims have accumulated wealth because of connections to Putin and have been blacklisted by the president for suspected corruption, human rights violations, malign Russian influence, or Ukraine. The targeted oligarchs receive neither notice nor an opportunity to respond, nor an opportunity to confront accusers, nor an independent or impartial decisionmaker — summary justice at its worst.  

Nazi leaders at Nuremberg, in contrast, were protected by due process and some were acquitted. President Biden would fail even the lowest threshold of impartiality mandated by due process. He has already denounced Russian President Vladimir Putin as a killer, a war criminal, complicit in genocide, and justifying regime change. Weakening Russia is atop his foreign policy agenda. Can Biden be trusted without outside scrutiny or rules of evidence to accurately assess the value of oligarch assets or a nexus between their wealth and Putin?   

H.R. 6930 also violates the spirit, if not the letter, of the constitutional prohibition of bills of attainder in Article I, section 9, clause 3, i.e., the legislative infliction of punishment targeting a narrowly defined group. The bill exhibits no plausible remedial, non-punitive purpose.  

To borrow from Justice Robert Jackson’s dissent to upholding racist concentration camps for loyal Japanese Americans during World War II, H.R. 6930 as a precedent would lie “about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Indeed, the bill’s authors tacitly acknowledged its danger with a two-year sunset to safeguard against Donald Trump’s possible election in 2024.  

Dramatist Robert Boldt answered the “good guy, bad guy” justification for H.R.6930 in the following exchanges between Roper and Sir Thomas More in the 1960 play, “A Man for All Seasons”: 

“Roper: So now you’d give the devil the benefit of law? 

More: Yes. What would you do? Cut a great road through the law to get after the devil?  

Roper: I’d cut down every law in England to do that. 

More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? … Yes, I’d give the devil the benefit of the law, for my own safety’s sake.”  

Bruce Fein was associate deputy attorney general under President Regan and is the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”