New Memoranda from Attorney General Bondi: Topics to Watch in Corporate Enforcement
Client Alert | February 7, 2025
Upon her swearing in, Attorney General Pamela Bondi issued a flurry of memoranda seeking to deploy Department of Justice enforcement resources in service of the Trump Administration’s priorities. AG Bondi issued 14 memoranda in total; we survey them below, focusing on those that should be of greatest interest to corporate clients and white collar practitioners.
On their face, the memoranda herald a seismic shift in enforcement priorities for the next four years. AG Bondi has directed Departmental resources toward immigration enforcement, prosecution of human trafficking and smuggling, and disruption of criminal gangs and drug cartels, and away from prior corporate enforcement priorities such as Foreign Corrupt Practices Act (“FCPA”) and Foreign Agents Registration Act (“FARA”) prosecutions against corporations and lobbyists, respectively. In addition, the directives announced the disbanding of three kleptocracy-related programs and the National Security Division’s (“NSD’s”) Corporate Enforcement Unit, along with the elevation of two gang-related Joint Task Forces to the Office of the Attorney General.
The memoranda also indicate a less eye-catching—but nonetheless critical—development: namely, “decentralization” from Main Justice to United States Attorney’s Offices (“USAOs”) of prosecutorial decisions in certain matters. To remove “bureaucratic impediments” to “aggressive” prosecutions of gangs and cartels, AG Bondi has —for now—suspended certain approvals USAOs previously needed from Main Justice components. It is possible that this move could be the first step in a broader reduction of oversight and approvals from Main Justice and a delegation of decision-making authority to local prosecutors, but it is too early to tell just two days into AG Bondi’s tenure.
Significant questions raised by the Attorney General’s memoranda remain, including how profound the changes in DOJ’s enforcement activity ultimately will be, how quickly any such changes will manifest themselves, and whether AG Bondi’s directive that prosecutors seek to bring “the most serious readily provable offense” will offset for corporate defendants the apparent shift in resources away from corporate prosecutions. Notably, the memoranda are forward-looking and remain silent on what to do with pending cases in which DOJ has already invested significant time and resources.
I. The “Total Elimination” Memorandum
For corporate entities, perhaps the most significant memorandum will turn out to be the one calling for a “fundamental change in mindset and approach” to “pursue total elimination” of cartels and transnational criminal organizations (“TCOs”) (emphasis in original). The memorandum seeks to refocus DOJ resources onto cartels and TCOs and to streamline the process of bringing charges against them. To do so, the FCPA Unit and the Money Laundering and Asset Recovery Section (“MLARS”) have been instructed to prioritize cases that relate to cartels and TCOs, with the FCPA Unit directed to shift focus away from cases that lack such a connection. As examples of priority cases, the memorandum cites bribery of foreign officials to facilitate human smuggling or drug trafficking. The memorandum also disbands Task Force KleptoCapture; DOJ’s Kleptocracy Team; and MLARS’s Kleptocracy Asset Recovery Initiative. Attorneys working on those initiatives are to return to their “prior posts.”
It is unclear how much of the FCPA Unit’s “focus” will be redirected towards cartel and TCO-related cases, whether this new “focus” will materially impact already-running FCPA investigations, and whether the FCPA Unit’s corporate enforcement activity will change materially or at the margins. We note that in the coming months, other DOJ sections are likely also to receive guidance instructing them to shift their own priorities, and that the cumulative effect of these shifts may be difficult to predict as a result.
Practitioners should also note that the recent guidance speaks to DOJ’s FCPA enforcement priorities, but the U.S. Securities and Exchange Commission (“SEC”)—which has civil FCPA enforcement authority over U.S. issuers but not private companies—has not yet weighed in. To date, the SEC has not announced any changes to its FCPA enforcement program, although further guidance on that front may be coming. It is possible that in the long run these changes are intended to shift the center of gravity for FCPA enforcement from DOJ to the SEC.
A cautious approach is particularly prudent as the announced changes are—at present—in place for 90 days and subject to renewal. They appear under a section titled “Removing Bureaucratic Impediments to Aggressive Prosecutions,” suggesting that the goal is to increase overall enforcement activity, with a particular focus on cartels and TCOs. The guidance does not necessarily portend an abandonment of corporate FCPA enforcement or a lack of focus on existing FCPA prosecutions and investigations. It is hard to know precisely how the FCPA could fit into an “America First” agenda, but it is worth noting that the majority of major FCPA enforcement actions over the past decade have been of non-U.S. corporations.
The memorandum indicates a clear focus on drug cartels—citing MS-13 and Tren De Aragua. The guidance could encourage prosecutors to use FCPA and related charges more often insofar as they can be marshalled in furtherance of “aggressive” prosecutions of foreign officials who can be tied to TCOs. Investigative activity regarding cartels and TCOs thus could have a spillover effect in the FCPA space. Furthermore, prosecutors may be inclined to take decisive action where bribery is alleged to support—perhaps even indirectly—regimes that facilitate cartel and TCO activity. In this respect, it is worth recalling that Venezuela’s President Nicolas Maduro—whose regime has been the subject of very aggressive FCPA enforcement activity—is himself still under indictment for charges related to corruption and narco-trafficking.
In furtherance of “aggressive” prosecutions, the memorandum sets forth significant (and again, for the moment, temporary) changes to existing processes for charging decisions related to cartels and TCOs. The memorandum suspends approval requirements from Main Justice components before USAOs can proceed with a wide swath of charges, provided those charges are cartel- or TCO-related. For instance, the guidance suspends requirements that NSD approve most terrorism and International Emergency Economic Powers Act (“IEEPA”) charges. Nevertheless, USAOs are still “encouraged” to consult with NSD and the Office of International Affairs and required to provide 24-hour notice of the intention to seek such charges. The guidance likewise suspends the requirement that the FCPA Unit authorize investigations or charges that relate to cartels or TCOs. USAOs are to provide the FCPA Unit with just 24-hours’ notice if they intend to seek FCPA charges, with the FCPA Unit entitled to review charging memoranda but not authorized to require any “new or additional paperwork” from USAOs.
The memorandum also contains a directive for DOJ to advocate for a number of legislative reforms that would make it easier to prosecute conduct associated with the manufacturing and distribution of counterfeit drugs containing fentanyl. These reforms include scheduling certain drugs and broadening provisions of the Controlled Substances Act and Federal Food Drug and Cosmetic Act to “cover manufacturing and other conduct” related to fentanyl, counterfeit pills, and pill-press machines. The sought reforms closely relate to an initiative that DOJ’s Consumer Protection Branch has been advancing related to corporate conduct that facilitates the manufacturing or distribution of counterfeit pills. Relevant to that initiative, the Branch recently stated in a publication that, “given the sharp rise in overdose deaths from counterfeit pills laced with fentanyl, the Branch has broadened its efforts to pursue corporate bad actors facilitating the manufacture, distribution, or sale of counterfeit pills. This includes investigating e-commerce sites and social media platforms that may be allowing traffickers to sell counterfeit pills to teens and young adults. Further, the Branch is investigating companies that may be allowing precursor chemicals and equipment to get into the hands of drug trafficking organizations.” (See the April 2024 Recent Highlights issued by the Consumer Protection Branch.)
II. General Policy Regarding Charging, Plea Negotiations, and Sentencing
In addition to restating some high-level policies on charging, plea bargaining, and sentencing, this memorandum restores a “core principle” of the first Trump Administration that, “in the absence of unusual facts, prosecutors should charge and pursue the most serious, readily provable offense.” Any prosecutorial decision to deviate from this “core principle” must be approved by a U.S. Attorney or Assistant Attorney General (or their designee), with the reasons for the deviation to be documented. The memorandum cites to President Trump’s Executive Order 14147 (Ending the Weaponization of the Federal Government) and instructs that charging decisions must not be influenced by prosecutors’ personal or professional “animosity or careerism.”
The memorandum also instructs that plea bargaining is “governed by the same fundamental considerations” applied in charging decisions, namely pursuing the most serious, readily provable offense. The memorandum directs that prosecutors cannot “abandon pending charges” in favor of a plea that is inconsistent with the “seriousness of the defendant’s conduct at the time the charges were filed.” As to sentencing, the memorandum advises that “[i]n most cases,” sentences within the applicable Sentencing Guidelines will be appropriate.
Finally, the memorandum lists several specific “investigative and charging priorities,” noting that “[f]urther detailed guidance regarding these priorities, and others, will follow.” These “priority” enforcement areas are: (1) immigration enforcement; (2) human trafficking and smuggling; (3) transnational organized crime, cartels, and gangs; (4) protecting law enforcement personnel; (5) shifting resources in NSD; and (6) shifting Bureau of Alcohol, Tobacco and Firearms (“ATF”) resources from alcohol and tobacco-related enforcement programs to “more pressing priorities.” Notably, the FCPA, which was among the Biden Administration’s priorities under its 2021 Strategy on Countering Corruption, is absent from this list.
Of particular note for corporate enforcement are changes at NSD. Citing concerns about “weaponization,” the memorandum instructs that charges under FARA are to be “limited” to “conduct similar to more traditional espionage by foreign government actors.” The memorandum also disbands NSD’s Corporate Enforcement Unit. Although that Unit was already thinly staffed, this directive is consistent with a broader effort to shift enforcement priorities away from corporate investigations and prosecutions.
III. Reinstating the Prohibition on Improper Guidance Documents
AG Bondi moved to reimplement guidance from the first Trump Administration that the Biden Administration had later rescinded. She rescinded former AG Garland’s July 1, 2021 memorandum, Issuance and Use of Guidance Documents by the Department of Justice. That July 2021 memorandum had itself rescinded two DOJ memoranda issued during the first Trump Administration, Prohibition on Improper Guidance Documents (Nov. 16, 2017) and Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases (Jan. 25, 2018). This move is the latest in a back-and-forth between recent administrations regarding use of DOJ guidance documents.
The memorandum appears to signal the Department’s preparations to rescind memoranda issued under the Biden Administration, which could include, for example, previous guidance on corporate enforcement and compliance.
IV. Reinstating the Prohibition on Improper Third-Party Settlements
As above, AG Bondi moved to restore since-rescinded guidance from the first Trump Administration. AG Bondi rescinded two Biden Administration memoranda related to payments to third parties under DOJ-secured settlements, effectively reimplementing AG Sessions’s June 5, 2017 memorandum, Prohibition on Settlement Payments to Third Parties.
In doing so, the memorandum cites the risk of “improper use of settlements to funnel payments” to third parties, and instructs that, absent special circumstances, settlements—including civil settlements, NPAs, and DPAs—should “not be used to require payments to non-governmental, third-party organizations that were neither victims nor parties” to the proceeding.
V. Other Memoranda and Directives
AG Bondi issued a slate of other memoranda, including documents seeking to implement government-wide Trump Administration priorities such as abolishing Diversity, Equity, and Inclusion (“DEI”) programs and implementing return to work requirements. The memoranda related to DEI programs are the subject of a separate Gibson Dunn client alert.
- Restoring the Integrity and Credibility of the Department of Justice: Establishes the Weaponization Working Group to review instances where DOJ’s or other agencies’ actions may have been politically motivated or improper over the last four years. The newly created group will examine various issues, including the conduct of Special Counsel Jack Smith, the Manhattan District Attorney, and the New York Attorney General in targeting President Trump, his family, and businesses. DOJ will update the White House quarterly on the progress of the group’s review.
- Ending Illegal DEI and DEIA Discrimination and Preferences: Announces that DOJ’s Civil Rights Division, in line with President Trump’s E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025), will “investigate, eliminate, and penalize” DEI programming in private sector and educational institutions that receive federal funds. The memorandum instructs the Civil Rights Division and the Office of Legal Policy to submit a joint memorandum to the Associate Attorney General by March 1, 2025, that contains recommendations on how to accomplish that goal. Notably, this memorandum contemplates proposals for criminal investigations and potential civil compliance investigations of entities with DEI programs.
- Eliminating Internal Discriminatory Practices: Instructs all DOJ components to implement the directive of President Trump’s E.O. 14173 by “thoroughly evaluat[ing]” consent decrees, settlement agreements, litigation positions, grants and funding mechanisms, procurements, internal policies and guidance, and contracting arrangements. The memorandum also directs all DOJ components to submit a report to the Attorney General’s Office by March 15, 2025, that details its findings from that evaluation process.
- General Policy Regarding Zealous Advocacy on Behalf of the United States: Instructs DOJ attorneys that their responsibilities include “vigorously defending presidential policies and actions against legal challenges on behalf of the United States.” Advises that prosecutorial discretion “does not include latitude to substitute personal political views or judgments for those that prevailed in the election.” The memorandum warns that any attorney who—based on their “personal political views or judgments”—refuses to sign briefs or appear in court, or “otherwise delays or impedes the Department’s mission” will be subject to discipline up to termination.
- Return to Full-Time In-Person Work at the Department of Justice: Mandates a return to full-time, in-person work for all DOJ employees by February 24, 2025.
- Restoring a Measure of Justice to the Families of Victims of Commuted Murderers: Aims to provide support and justice to families affected by commutations of death sentences and authorizes USAOs to assist local prosecutors in bringing capital cases under state law against those whose federal death sentences were commuted.
- Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions: Rescinds AG Garland’s Moratorium on Federal Executions Pending Review of Policies and Procedures and instructs that DOJ will instead “swiftly implement[]” death sentences.
- Sanctuary Jurisdiction Directives: Addresses policies related to “[s]o-called ‘sanctuary jurisdictions’” and their compliance with federal immigration laws and prohibits DOJ grants to such jurisdictions.
- Establishment of Joint Task Force October 7: Establishes Joint Task Force October 7 (“JTF 10-7”) within the Office of the Deputy Attorney General. Supported by related initiatives, JTF 10-7 will focus on “seeking justice for victims of the October 7, 2023, terrorist attack in Israel,” and “combatting antisemitic acts of terrorism and civil rights violations in the homeland.”
- Rescinding Environmental Justice Memorandum: Rescinds two Biden Administration memoranda titled Actions to Advance Environmental Justice and Comprehensive Environmental Justice Enforcement Strategy and rescinds “any other” guidance that “implement[s] the prior administration’s ‘environmental justice’ agenda.”
Gibson Dunn’s White Collar Defense and Investigations Practice Group successfully defends corporations and senior corporate executives in a wide range of federal and state investigations and prosecutions, and conducts sensitive internal investigations for leading companies and their boards of directors in almost every business sector. The Group has members across the globe and in every domestic office of the Firm and draws on more than 125 attorneys with deep government experience, including more than 50 former federal and state prosecutors and officials, many of whom served at high levels within the Department of Justice and the Securities and Exchange Commission, as well as former non-U.S. enforcers. Joe Warin, a former federal prosecutor, is co-chair of the Group and served as the U.S. counsel for the compliance monitor for Siemens and as the FCPA compliance monitor for Alliance One International. He previously served as the monitor for Statoil pursuant to a DOJ and SEC enforcement action. He co-authored the seminal law review article on NPAs and DPAs in 2007. M. Kendall Day is a partner in the Group and a former white collar federal prosecutor who spent 15 years at the Department of Justice, rising to the highest career position in the DOJ’s Criminal Division as an Acting Deputy Assistant Attorney General.
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