Featured Expert Contributor, White Collar Crime and Corporate Compliance

Gregory A. Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP. He also serves on WLF’s Legal Policy Advisory Board.

Literally within minutes of taking the oath of office and moving into the Attorney General’s suite on the fifth floor of the RFK Building, new Attorney General Pam Bondi issued at least ten brief memoranda providing new guidance on a range of issues, from the death penalty to telework.  This is the opening salvo of what is sure to be a steady barrage of new guidance aimed at reshaping the Department of Justice focus and priorities per President Trump’s agenda.  Some of these memos address substantive areas of the laws DOJ enforces, while others are focused on administrative issues.  A few of the highlights are summarized below.

Sanctuary Jurisdictions

Perhaps the most predictable of initial DOJ priorities is a new focus, some might say hyper-focus, on immigration enforcement.  The AG’s memo on this topic provides that DOJ will pause the distribution of all funds from DOJ to so-called sanctuary jurisdictions until a review has been completed and further terminates any agreements that are “in violation of law or are the source of waste, fraud, or abuse.”  The memo further requires the “clawback or recoupment” of any such funds where appropriate.  The memo instructs DOJ’s litigating components, including each of the 93 U.S. Attorney’s Offices to investigate incidents involving state and local jurisdictions’ facilitation of violations of federal immigration laws or obstruction with federal immigration operations, and prosecute such activity under 18 U.S.C. 371 and 8 U.S.C. 1324 and 1373.  Of note, the memo requires that all decisions to decline to prosecute such potential cases must be reported to Department leadership pursuant to the “Urgent Reports” section of the Justice Manual.  This memo also tasks the Civil Division with challenging any state or local laws, policies, or practices that facilitate violations of federal immigration laws or impede federal immigration operations. 

The Death Penalty

In a memo with a subject line reading “REVIVING THE FEDERAL DEATH PENALTY AND LIFTING THE MORATORIUM ON FEDERAL EXECUTIONS,” AG Bondi emphasized the importance of the death penalty as a “just punishment for the most egregious crimes” and observed that this has been improperly disregarded by Department leadership in recent years and referred to this as a “shameful era.”  Specifically, the memo does a few things:  (1) it lifts the moratorium on federal executions put into place in 2021; (2) pursuant to a recent Executive Order on the subject, the memo directs federal prosecutors to seek the death penalty in cases where it is available and appropriate; (3) the memo directs the Attorney General’s Capital Review Committee to review decisions to not seek the death penalty in all pending cases that are death-penalty eligible and were charged between January 20, 2021 and January 19, 2025; and (4) the federal Bureau of Prisons is directed to work with the states to ensure they have sufficient supplies and resources to carry out death sentences in state prosecutions.

Charging, Plea Negotiations, and Sentencing In Criminal Cases

Another memo addresses the big picture issues relating to criminal prosecutions generally.  With respect to charging decisions, the memo directs U.S. Attorney’s Offices to employ a two-step process when making charging decisions, with the first question being whether federal charges are appropriate and the second being what charges are appropriate.  The memo instructs prosecutors to answer the first question based on existing Justice Manual guidance that cautions against the improper consideration of the target’s associations, activities, or beliefs or potential animosity or careerism on the part of the prosecutor.  As for the second question, again, the Justice Manual is referenced for the requirement that prosecutors must assess all the facts and circumstances of each particular case.  Specifically, prosecutors are directed to follow the same standard that has guided DOJ for decades: absent unusual facts, the most serious, readily provable offense should be charged. 

When it comes to plea bargaining, the memo states that there is no room for political animus or other hostility, and cautions that the criminal charges may not be used to exert leverage to induce a guilty plea.  Conversely, the memo directs that a prosecutor may not abandon charges to achieve a plea agreement that is inconsistent with the prosecutor’s assessment of the seriousness of the case.

On sentencing, the memo mostly confirms the Justice Manual’s existing guidance requiring a prosecutor to be candid with the court and base recommendations on an individualized assessment of the nature and circumstances of the offense and the defendant’s criminal history and other relevant characteristics. 

This memo also addresses investigative and charging priorities, citing the “historic threats from widespread immigration, dangerous cartels, transnational organized crime, gangs, human trafficking and smuggling, fentanyl and opioids, violence against law enforcement, terrorism, hostile nation states, and other sources.”  To meet these threats, the memo announces a shift of resources within the National Security Division (“NSD”) away from FARA enforcement, except in limited circumstances, and the disbanding of NSD’s Foreign Influence Task Force and Corporate Enforcement Unit.  The memo also notes the shift of resources away from ATF’s alcohol and tobacco programs to other enforcement priorities. 

Environmental Crimes

This memo rescinds the May 5, 2002 AG memo concerning “environmental justice” and directs all DOJ components to immediately rescind any guidance related thereto.  This follows President Trump’s recission of the 2021 Executive Order 13990 entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” and the 2023 Executive Order 14099 entitled “Revitalizing Our Nation’s Commitment to Environmental Justice for All.”  The brief memo concludes with the AG stating that “…the Department will evenhandedly enforce all federal civil and criminal laws, including environment laws.

Third-Party Settlements

This memo observes that while DOJ attorneys “sometimes settle civil and criminal matters to achieve justice at a reasonable cost to the taxpayer,” settlements should not be used “to require payments to non-governmental, third-party organizations that were neither victims nor parties to the lawsuits.  Accordingly, the memo rescinds a 2022 AG memo entitled “Guidelines and Limitations for Settlement Agreements Involving Payments to Non-Governmental Third Parties” and a 2023 memo from the Assistant Attorney General for the Environmental and Natural Resources Division entitled “Community Service Payments in Environmental Crimes Cases.”

Zealous Advocacy by DOJ Attorneys

This memo reminds DOJ lawyers that they have “signed up for a job that requires zealously advocating for the United States” and are expected to “zealously advance, protect, and defend their client’s interests.”  The memo further makes clear that DOJ’s policy is “that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court” or otherwise “impedes the Department’s mission” will be subject to discipline and potentially termination, consistent with applicable law.”

Conclusion

Several other day-one memos addressed other issues including discrimination and DEI, telework, and improper guidance documents.  All in all, this flurry of day one guidance seems to reflect a clear eagerness on the part of the new Attorney General to hit the ground running as she seeks to not only set a new tone at DOJ but to also substantively adjust priorities in accordance with the new President’s own vision for the Department.