One of us spent years as general counsel for the United States Army’s museum system, helping to safeguard artifacts that tell the story of war, memory and loss. The other has spent a career as a New York appellate lawyer, thinking about how legal rules—once stretched—can reshape power far beyond the case at hand. From those very different perspectives, we’ve reached the same conclusion: We’re deeply troubled by a recent decision from a New York criminal court that, in the name of Holocaust justice, threatens to upend the legal framework that’s governed art restitution since World War II. Whether the appellate court that recently heard oral arguments in the case will correct course remains to be seen.
The Case
At issue is a 1916 drawing by the Austrian Expressionist Egon Schiele, titled Russian War Prisoner. The drawing has been in the permanent collection of the Art Institute of Chicago for nearly six decades. In September, at the request of the Manhattan District Attorney, a judge ordered the museum to surrender the drawing to the heirs of Fritz Grünbaum, a Jewish cabaret performer who died in Dachau after the Nazis allegedly seized his art collection.
That may sound like a straightforward act of historical justice. It’s not.
The drawing wasn’t seized after a trial. No one has been charged with a crime. No museum official is accused of wrongdoing. Instead, the judge used an obscure procedural shortcut, borrowing a little from civil law and a little from criminal law, to take artwork from an Illinois museum based on events that occurred in Europe nearly a century ago.
This should worry anyone who cares about due process, museums or commerce.
A Departure from Traditional Civil Process
Traditionally, disputes over ownership of Holocaust-era art are resolved in civil courts. That process may be imperfect and too slow at times, but it exists for a reason: These cases turn on fragile historical records, missing witnesses, foreign archives and disputed provenance. Civil courts allow for full discovery, expert testimony and defenses designed to prevent decision makers from simply speculating when evidence is too degraded to support a fair outcome. As one of the appellate judges put it during oral argument, “judges by themselves are poor historians.”
Here, that process was bypassed. The Grünbaum heirs had already sued the Art Institute in federal court, where the museum initially prevailed on standard civil defenses, including the reality that nearly 90 years had passed since the alleged theft. Rather than allow those defenses to be further litigated, prosecutors stepped in and asked a criminal judge to order the artwork turned over anyway.
The HEAR Act and Constitutional Concerns
Even with the passage of the Holocaust Expropriated Art Recovery Act of 2025, which sweeps away some of these civil defenses and may allow claimants like the Grünbaum heirs to reach the merits of their case more quickly, other standards continue to guide the civil process. Removing defenses doesn’t remove the Constitution. While the pathways for dismissal may narrow, the civil process requires that outcomes rest on reliable proof rather than unsubstantiated inferences. And relying on a thin or speculative record that fails to meet the requisite burden of proof raises serious due process concerns. While the HEAR Act of 2025 may remove certain tools historically used to prevent conjecture from filling evidentiary gaps, there should be no disagreement that justice achieved through procedural shortcuts or evidentiary guesswork ultimately serves neither history nor the families it seeks to honor.
Evidentiary Problems and Greater Implications
Yet that’s precisely how the criminal judge proceeded, relying on hearsay, selective excerpts from prior testimony and a theory of criminal conspiracy so elastic that it stretched across decades, continents and multiple innocent owners. The sole New York connection? A Manhattan art dealer briefly owned the drawing in the 1950s. From that, the court concluded that New York had jurisdiction to seize art from a Chicago museum that bought the work in Illinois in 1966.
If that logic stands, then New York prosecutors can reach into any museum, warehouse or corporate collection in the country, so long as an object passed through New York at some point in the last century. In a global economy where goods routinely transit New York, that’s not a niche art-law problem. It’s a commercial nightmare.
Retroactive Standards
Even more troubling, the court retroactively judged the museum’s conduct using modern standards that didn’t exist when the drawing was purchased. In the 1960s, Schiele works sold for modest sums, and Nazi-era provenance research was rudimentary. To treat a museum’s failure to meet today’s expectations as evidence of criminality decades later is to erase the difference between negligence and malicious intent—the cornerstone of criminal law.
A Chance to Reverse Course
Holocaust restitution demands seriousness, care and humility. It doesn’t justify improvising new legal mechanisms that discard due process in pursuit of speed. Justice achieved by procedural ambush isn’t justice at all. And once courts normalize the idea that prosecutors may seize property without charges, without trial and without clear jurisdictional limits, that prosecutorial overreach won’t remain confined to art cases.
The New York appellate courts now have a chance to reverse course. They should. Holocaust restitution deserves a process that’s fair, transparent and grounded in law, not one that repurposes criminal procedure to resolve complex civil ownership disputes without coherent standards. In the name of historical correction, criminal courts shouldn’t be transformed into roving instruments of cultural confiscation.
Implications for Advisors and Their Clients
For advisors whose clients hold significant art collections, this case is a warning. Artwork with even a tenuous New York connection could become subject to seizure proceedings, regardless of where it’s currently held or how long it’s been in a client’s possession. That’s a meaningful title-risk exposure that advisors should factor into collection valuations, estate plans and insurance arrangements.
Even if the appellate court ultimately reverses the lower court’s order, the Manhattan DA’s decision to pursue this route signals that prosecutors are willing to test the boundaries of criminal procedure as a tool for art restitution. Advisors shouldn’t treat a reversal as a return to the status quo. The attempt itself demonstrates that the traditional assumption that Holocaust-era ownership disputes belong exclusively in civil court can no longer be taken for granted. Clients with significant collections should be prepared for a legal environment in which prosecutorial creativity, not just civil litigation, shapes title risk.
Practically speaking, advisors should encourage clients to conduct or update provenance research on works acquired before modern due-diligence standards took hold, particularly European works created before 1945. Clients who own art through holding companies or trusts may also want to review whether those structures offer any protection against a criminal seizure order, which operates differently from a civil judgment. And for works currently on long-term loan to museums or institutions, advisors should confirm that loan agreements address the allocation of legal costs and liability in the event of a third-party claim. Should litigation arise, collectors are advised to evaluate and timely assert any constitutional objections to the HEAR Act’s applicability as failure to timely raise such defenses risks their permanent waiver.
