The Department of Justice’s Policy Changes — Key Takeaways for the Business Community

At a Glance

• DOJ has redirected its focus toward combating illegal immigration, human trafficking and transnational organized crime, and ordered that resources previously dedicated to corporate and foreign influence enforcement be reallocated to those areas.
• Taken together, these policy shifts reflect a reduced focus on traditional corporate enforcement across the Department of Justice. However, DOJ’s renewed focus on transnational crime and DEI initiatives, return to a policy of charging the most serious offenses in most cases, and the imposition of stricter limits on plea negotiations all raise new forms of significant risk for the business community.
• There are several measures that businesses should consider in response to these changes. Staying informed and prepared will be key to navigating this evolving legal landscape.

Over the past few days, the Department of Justice (DOJ) has issued several significant policy memos that reshape the landscape for corporate legal risk, particularly for multinational corporations engaged in international business. The first memo from new Attorney General Bondi (AG Bondi), titled “General Policy Regarding Charging, Plea Negotiations and Sentencing,” outlines changes to charging, plea negotiations and sentencing policies. The second memo, titled “Total Elimination of Cartels and Transnational Criminal Organizations” further details the DOJ’s shifting priorities, including a notable pivot in how national security, Foreign Corrupt Practices Act, and sanctions-related cases are pursued. A third, titled “Ending Illegal DEI and DEIA Discrimination and Preferences” directs certain DOJ components to conduct civil and criminal investigations of private sector “diversity, equity, and inclusion” (DEI) initiatives. 

Key Highlights From the DOJ Policy Memos

The DOJ memos include a number of significant changes to practices across nearly all criminal investigations and prosecutions, and specific shifts in focus that are important to the business community. Most significantly, DOJ has redirected its focus toward combating illegal immigration, human trafficking and transnational organized crime, and ordered that resources previously dedicated to corporate and foreign influence enforcement be reallocated to those areas.

Shifts in Fraud & Foreign Corrupt Practices Act Focus

The Foreign Corrupt Practices Act (FCPA) Unit, a part of the Criminal Division’s Fraud Section, has been ordered to prioritize foreign bribery investigations related to transnational criminal organizations (including human smuggling and firearms trafficking) and drug cartels. The DOJ also has suspended the requirement that these types of FCPA investigations be conducted by trial attorneys at the Fraud Section, meaning that U.S. Attorney’s Offices around the country may conduct and lead these investigations with only limited notice to the Fraud Section of charging decisions.

Shifts in National Security Focus

The DOJ under AG Bondi has taken several steps to signal a shift in focus in national security investigations and prosecutions, including:

• A prioritization of investigations related to terrorism, sanctions offenses related to Specially Designated Global Terrorists (SDGTs), and drug trafficking activity
• Disbanding the Foreign Influence Task Force
• Disbanding Task Force KleptoCapture (the task force intended to enforce sanctions against Russia’s oligarchs in response to the Russian invasion in Ukraine)
• Eliminating the Corporate Enforcement Unit in DOJ’s National Security Division (NSD)
• Limiting the use of the Foreign Agents Registration Act (FARA) and 18 U.S.C. § 951 (the illegal foreign agent law) to cases resembling “traditional espionage,” and directing prosecutors in other FARA and foreign influence cases to focus on civil and regulatory enforcement

Notably, the DOJ memos are silent about the scope of future corporate enforcement by NSD, and there are some indications that robust corporate investigations will continue. For example, the Department has not withdrawn its recent “bulk sensitive personal data transfer” rule, a complex regulation that prohibits or restricts the transfer of “bulk sensitive personal data” or “government-related data” to certain “countries of concern” and “covered persons”, and imposes both civil and criminal penalties for violations. The DOJ has also reduced NSD approval requirements related to national security cases involving transnational organized crime and drug trafficking. Similar to the FCPA change, this will also allow U.S. Attorney’s Offices to pursue search warrants and other significant legal steps related to terrorism and certain sanctions-related charges (including cases involving corporate entities) without approval from NSD.

Pursuit of Criminal and Civil Investigations Related to DEI Initiatives

AG Bondi has ordered the DOJ to “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and educational institutions that receive federal funds.” As an initial measure, the Civil Rights Division and Office of Legal Policy is directed to prepare recommendations for how to pursue this goal, including through preparation of a plan to “deter the use of DEI and DEIA programs … that constitute illegal discrimination or preferences” through civil and criminal investigations.

Return to “Most Serious, Readily Provable” Charges

The DOJ has re-emphasized a strict charging philosophy instructing prosecutors to pursue “the most serious, readily provable [criminal] offenses” with the most severe penalties, unless unusual circumstances warrant deviation. This includes offenses carrying mandatory minimum sentences and those with the highest sentencing guideline ranges. 

Restricting the Use of Charges for Plea Leverage

Although this has long been the policy of the DOJ (see Justice Manual §§ 9-27.260 & 9-27.400), prosecutors are explicitly instructed that they cannot bring criminal charges merely as leverage to coerce guilty pleas. They must ensure plea deals align with the seriousness of the original conduct and charges, barring significant mitigating factors. The memo also reminds prosecutors that “political animus or other hostility” should not play a role in the plea-bargaining process.

What This Means for Your Business

Taken together, these policy shifts reflect a reduced focus on traditional corporate enforcement across the Department of Justice. However, DOJ’s renewed focus on transnational crime and DEI initiatives, return to a policy of charging the most serious offenses in most cases, and the imposition of stricter limits on plea negotiations all raise new forms of significant risk for the business community. This includes the following:

A Shift in Corporate Enforcement, Not a Stand-Down

While many of the measures described above signal some reduced interest in certain types of corporate criminal enforcement, businesses should not presume that the DOJ will no longer pursue significant corporate investigations. Rather, the shift in focus to transnational crime, immigration and DEI activity means that different sectors of the business community — such as those involved in chemical and pharmaceutical development, those with financial activity in Asia, Mexico and Central/South America, those with DEI-related programs, and those with significant use of foreign-born employees — are at more risk of scrutiny, investigation and potential prosecution. The decision to empower U.S. Attorney’s Offices and reduce approval requirements for these types of investigations also means that inquiries and investigations will be more decentralized and can proliferate across the country.

Heightened Risk of Severe Charges for Cybersecurity Breaches and Compliance Failures

For corporations, particularly those handling sensitive data or engaging in cross-border transactions, the DOJ’s return to pursuing the “most serious, readily provable” charges means that cybersecurity breaches or compliance failures could now attract more severe penalties. For example, violations of the new “bulk sensitive personal data” rule are more likely to lead to criminal charges rather than only civil enforcement. Similarly, this could also lead to more felony charges for business-related cybercrime, such as corporate liability for when an employee steals information from a competitor’s computer systems, even though the DOJ has previously exercised leniency by imposing misdemeanor or noncriminal penalties for those offenses. 

Reduced Exposure to Foreign Influence and Corporate Prosecutions — But Civil Risks Remain

The disbanding of the Foreign Influence Task Force and other measures described above suggests a de-prioritization of criminal enforcement under FARA and Section 951. However, companies engaged in international lobbying, consulting or partnerships should not interpret this as a free pass. Civil enforcement and regulatory scrutiny will continue, posing reputational and financial risks.

Opportunities for Proactive Compliance and the Ability to Negotiate a Favorable Plea May Diminish

The DOJ’s shift in priorities and dismantling of corporate-focused enforcement units could reduce the incentives for voluntary self-disclosure of potential violations, which previously could lead to leniency or nonprosecution agreements. Companies should reassess the risks and benefits of self-reporting in this new environment. Additionally, corporations facing federal investigations may find fewer opportunities to negotiate reduced charges or settlements due to limitations on a prosecutor’s ability to drop or reduce charges. 

What You Can Do

There are several measures that businesses should consider in response to these changes:

• Strengthen internal compliance and incident response plans, particularly in ongoing or newly identified high-risk areas, such as data privacy and international transactions.
• Reevaluate the risks involved in foreign partnerships, particularly if those partners may create risk related to entities that have been sanctioned for their relationship to drug trafficking or terrorism.
• Prepare for more aggressive investigations into immigration-related practices.
• Evaluate policies that may be targeted under the new focus on DEI, particularly if you have federal government contracts.
• Monitor shifts in regulatory enforcement, such as FARA and foreign influence-related civil inquiries, even if criminal risk decreases.

Conclusion

The DOJ’s new policies represent a significant shift in the federal government’s approach to charging and sentencing, with far-reaching implications for corporations engaged in international business. While some areas of corporate criminal liability may see reduced focus, the emphasis on severe charges heightens the importance of robust compliance and proactive legal strategies. Staying informed and prepared will be key to navigating this evolving legal landscape.