On February 5, Attorney General Pam Bondi issued a series of 14 guidance documents, showcasing the Department of Justice’s (DOJ) new priorities under the Trump Administration.

In addition to effectuating many of President Trump’s Executive Orders, Bondi instituted some new guidance and reinstated some prior Trump Administration policies, established working groups and task forces, and reallocated DOJ resources.

Since many of them affect enforcement priorities and traditional white collar enforcement, companies should consider whether the policy changes could affect their current compliance program priorities and risk-management practices.

Memoranda in a nutshell

Bondi has directed DOJ resources toward immigration enforcement, prosecution of human trafficking and smuggling, and disruption of criminal gangs and drug cartels, and away from the typical front-and-center enforcement priority – the Foreign Corrupt Practices Act (FCPA) targeting mainly corporations – and the Foreign Agents Registration Act (FARA) targeting mainly lobbyists. 

In addition, the directives announced the disbanding of three kleptocracy-related programs and the National Security Division’s Corporate Enforcement Unit, along with the elevation of two gang-related joint task forces.

And to remove “bureaucratic impediments” and promote more “aggressive” prosecutions of gangs and cartels, Bondi has (at least for now) suspended certain approvals state-level US Attorneys General previously needed from Main Justice to proceed, delegating more decision-making authority to local prosecutors.

The memoranda seem to be forward-looking and do not mention any pending cases that the DOJ has been working on for some time. And the recent guidance just notes the DOJ’s new FCPA enforcement priorities, of course; since the SEC has civil FCPA enforcement authority over US issuers, it remains to be seen if that agency will similarly announce any changes to its FCPA enforcement approach.

Less FCPA and more ‘total elimination of cartels’

The Criminal Division’s FCPA unit will prioritize investigations related to foreign bribery that facilitates the criminal operations of cartels and transnational criminal organizations (TCO), such as cases that involve bribery of foreign officials to “facilitate human smuggling and the trafficking of narcotics and firearms,” one memo stated.

FCPA prosecutors will shift focus away from investigations and cases that do not have such a cartel or TCO connection; in other words, the DOJ will mainly investigate and prosecute organized crime and cartels engaged in bribery. This is a switch in focus, as the DOJ’s FCPA focus has traditionally been on large US-based entities and persons doing business abroad, targeting those who used corrupt means to secure commercial advantages, such as energy, healthcare and telecommunication companies and their executives.

Separately, FARA enforcement will now be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors. The Counterintelligence and Export Control Section, which houses the FARA unit, will “focus on civil enforcement, regulatory initiatives, and public guidance,” the memo said.

Interestingly, Bondi also directed the DOJ’s money laundering office to prioritize cartels and transnational crime, with the memo stating that the DOJ is shutting down its kleptocracy initiative. This initiative has recovered billions of dollars from corrupt overseas officials since 2010 and included the KleptoCapture task force, which has led to the confiscation of yachts, planes and real estate from rich Russians sanctioned over the war in Ukraine.

And it even 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. The Congressional reforms it advocates for 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.

Charge and pursue the most serious, readily provable offense

One memorandum outlines 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.” And any prosecutorial decision to deviate from this “core principle” must be approved by a US Attorney or Assistant Attorney General (or their designee), with the reasons for the deviation to be documented. The memorandum lists several specific “investigative and charging priorities,” noting that “detailed guidance regarding the priorities will follow.” 

The enforcement areas the DOJ outlines in the memo 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 resources from alcohol and tobacco-related enforcement programs to “more pressing priorities.” 

Memos implementing Trump executive orders

Bondi also issued a slate of other memoranda, which were mainly documents seeking to implement Trump Administration priorities such as abolishing Diversity, Equity, and Inclusion (DEI) programs in line with President Trump’s E.O. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, and implementing return-to-work requirements for all DOJ employees by February 24.

Other directives in this category include:

• The creation of a Joint Task Force to “prioritize seeking justice for victims” of the October 7, 2024, Hamas-led attacks on Israel. The task force also aims to address the “ongoing threat posed by Hamas and its affiliates” and to combat “antisemitic acts of terrorism and civil rights violations in the homeland.”

• Another memo establishes a “Weaponization Working Group,” which is tasked with reviewing “the activities of all department and agencies exercising civil or criminal enforcement authority of the United States over the last four years.” Aa the Bondi memo phrases it, the new working group will “identify instances where a department’s or agency’s conduct appears to have been designed to achieve political objectives or other improper aims rather than pursuing justice of legitimate governmental objectives.” It mentions several specific things that it will examine, such as the “weaponization” by former special counsel Jack Smith, the prosecutors and the investigators who took part in the “unprecedented raid on President Trump’s home.”

• And one memo specifically puts DOJ attorneys on notice that they are expected to “zealously” defend, advance and protect the interests of the United States, which are the interests set by the president. It says any department attorney who “because of their personal views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department’s mission will be subject to discipline and potentially termination.”

• Two memos refer to the death penalty in cases; one lifts the moratorium on federal executions, and instructs federal prosecutors to seek the death penalty in cases involving the murder of a law enforcement official and capital crimes “committed by aliens who are illegally present in the United States.” The other relates to President Biden’s decision in his waning days in office to commute the death sentences of 37 people on federal death row to life in prison. The Bondi memo directs DOJ to assist local prosecutors in pursuing death sentences under state law against those 37 individuals.

GRIP comment

The memo on “core principles” and ordering prosecutors to charge and pursue the most serious, readily provable offense also advises that “[i]n most cases,” sentences within the applicable Sentencing Guidelines will be appropriate. Taken together, this calls into question the DOJ’s well-known and oft-used Evaluation of Corporate Enforcement Policy document that has been guiding prosecutors in deciding whether to conduct an investigation of a corporation, determine whether to bring charges, and negotiate plea agreements and penalty reductions.

Will self-reporting, cooperating and remediating a compliance program in a timely way still offer the same benefits, or will that depend on the type of crime (since the “total elimination of cartels and TCOs” memo suggests an uptick in prosecutorial activity since there’s a section specifically titled “Removing Bureaucratic Impediments to Aggressive Prosecutions”) and whether the prosecution dovetails with a designated Trump administration priority area? It appears that way.

And will this DOJ really move away from the broader and more general pursuit of FCPA enforcement? Consider this: Some of the largest penalties brought under the 1977 law have been against non-US businesses, which actually squares with President Trump’s agenda nicely. And other (former) Republican heads of the DOJ and SEC certainly found good reason to actively pursue FCPA charges in a variety of cases, feeling beholden to a law that a number of other nations have their own version of and, let’s face it, actively use.

Finally, just as some of the president’s executive orders are being challenged in court right now, any cabinet agency memos seeking to effectuate them are at risk of being challenged.

In a time of shifting priorities that are only starting to be explained fully, with some of them already facing judicial challenges or likely to face them, it is not the time to pull any resources from the compliance department, especially in terms of headcount, technology and training. Instead, it’s a time of vigilance in tracking developments and weighing what risk management approach works for the organization, depending on (among other things) where it does business and what its stakeholders expect of it.