US DOJ Outlines New Enforcement Priorities for Corporations and Individuals

On Wednesday, February 5, 2025, the newly confirmed Attorney General (AG) Pam Bondi issued fourteen memoranda to all Department of Justice (DOJ or the “Department”) employees regarding a wide range of new policies and priorities for DOJ that will impact federal prosecutions of corporations and individuals. This Legal Update highlights relevant sections of AG Bondi’s various memoranda and discusses ways in which the guidance may impact corporate actors. Below, we discuss the memoranda’s legal and regulatory priorities and how they signal potential shifts in enforcement.

Background

The memoranda issued by AG Bondi build off a number of executive orders President Trump issued in his first week in office and campaign promises he made during the 2024 general election. The memoranda cover a wide range of topics, including:

1. New priorities and policies on charging, plea negotiations, and sentencing
2. Immigration enforcement and national security
3. Diversity, equity and inclusion (DEI)
4. Environmental justice
5. Inclusion of third parties in DOJ settlements

Within these topics, the memoranda cover a range of policies that impact various actors, including corporations in the private sector who do business with or are regulated by the federal government.

In the memoranda, AG Bondi reversed several of the Department’s previous directives and prioritized specific classes of potential bad actors. In doing so, AG Bondi deprioritized certain focus areas of the DOJ under the Biden Administration, eliminating certain initiatives and altering internal procedural rules, such as the mandatory coordination between US Attorneys’ offices and “Main Justice,” which oversees federal prosecutors across all fifty states.

The FCPA, Money Laundering, and a Prioritization of Drug Cartels and Transnational Criminal Organizations

AG Bondi has directed DOJ to focus on the “total elimination of cartels and transnational criminal organizations.” In doing so, she has directed DOJ prosecutors to focus investigative resources associated with traditional Department priority offenses – like the Foreign Corrupt Practices Act (FCPA), money laundering, and violations of the Bank Secrecy Act – to cases that have a nexus with cartels or transnational criminal organizations (“TCOs”).

The relevant memorandum also terminated the “KleptoCapture” task force charged with enforcing US sanctions on Russia following the invasion of Ukraine. KleptoCapture sought to seize assets of Russian oligarchs as part of a push to freeze Russia out of global markets and enforce sanctions imposed on Moscow amid the country’s war in Ukraine. Instead, AG Bondi directed the Money Laundering and Asset Recovery section of DOJ to prioritize investigations that primarily affect cartels and TCOs.

AG Bondi also redirected the Department’s enforcement of the FCPA to prioritize bribery investigations related to cartels. This could signal a shift away from prosecuting traditional FCPA cases that have broadly targeted companies for improperly gaining or retaining unfair business advantages in exchange for providing value to foreign government officials without any particular nexus to a criminal organization. The memo notes that the FCPA Unit should prioritize investigations related to foreign bribery “that facilitates the criminal operations of Cartels and TCOs.” Then just days after AG Bondi’s memo, President Trump signed an executive order pausing enforcement of the FCPA for 180 days. The executive order directs AG Bondi to review current and past actions related to the FCPA and prepare new guidelines for its enforcement. With respect to go-forward enforcement guidelines, the executive order directed the Department to “issue updated guidelines or policies, as appropriate, to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations,” along with “the efficient use of Federal law enforcement resources.”  Given the executive order’s focus on the competitiveness of US companies, it is possible that future FCPA enforcement will be focused on non-US companies, or on geographies that are considered hostile to U.S. economic or national security interests. The Department’s forthcoming guidance should provide further insight on enforcement priorities during the coming years.  It is also important to note that AG Bondi’s memo and the executive order do not extend to the U.S. Securities and Exchange Commission, which has civil enforcement authority with respect to the FCPA. 

While we await further guidance, corporations should be particularly sensitive toward any dealing that might directly or indirectly come into contact with cartels or TCOs, especially those with operations in Mexico and other parts of Latin America. Corporations doing business in Mexico, Colombia, and Central America, in particular, should be aware of allegations and any documented history of entanglement between the cartels and government actors in those countries. Because the Trump administration designated cartels as “foreign terrorist organizations,” any transaction—directly or indirectly—with the cartel-linked individuals or entities may subject a corporation to the risk of being accused of supporting a terrorist organization, even when the conduct happens extraterritorially.

Narrowing of FARA

As with the FCPA, AG Bondi has narrowed the Department’s prosecutorial discretion under the Foreign Agents Registration Act (FARA) and 18 U.S.C. § 951. One memorandum  states that “recourse to criminal charges under the FARA and 18 U.S.C. § 951 shall be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors.” The memorandum also scales back FBI resources devoted to investigating covert foreign influence (FARA and similar cases) by disbanding the Foreign Influence Task Force. It then directs the Counterintelligence and Export Control Section, which houses the FARA Unit, to focus instead on civil enforcement, regulatory initiatives, and public guidance. Although it is not entirely clear what is intended by “traditional espionage,” the term likely excludes commercial lobbying and related political influence activity by companies and other non-state actors, which, as a result, we expect to be the subject of administrative and civil enforcement efforts.

Internal DOJ Processes

AG Bondi’s memoranda appear to streamline DOJ’s investigative and charging procedures by eliminating the need for US Attorneys’ Offices to seek approval from Main Justice in certain instances. For example, the approval requirements administered by the National Security Division (NSD) are suspended for the filing of most terrorism charges and International Emergency Economic Powers Act (IEEPA) charges, seeking search warrants relating to such charges, and applying for material witness warrants in connection with investigations targeting members or associates of any cartel, TCO, or Specially Designated Global Terrorists. Although these approval requirements are suspended, the Department notes that consultation with NSD and the Office of International Affairs is still encouraged.

For all matters relating to foreign bribery associated with cartels and TCOs, AG Bondi suspended a requirement for authorization by the Criminal Division for an investigation or prosecution of a case under the FCPA and Foreign Extortion Prevention Act (FEPA), as well as the requirement that such investigations and prosecutions be conducted by trial attorneys of the Fraud Section. Local U.S. Attorneys’ Offices will now have more autonomy to bring cases and need to provide only 24 hours’ notice to Main Justice of their intention to seek charges.

Eliminating the previously required Main Justice approval channels may increase the pace of US Attorneys’ Offices’ investigations of the IEEPA and FCPA, while creating a patchwork of standards for enforcement across the country.

ATF Resource Shift

The Department also issued a memorandum declaring that the Bureau of Alcohol, Tobacco and Firearms (“ATF”) will be shifting resources from alcohol- and tobacco-related enforcement programs to “more pressing priorities such as cartels.” However, “no resources shall be diverted from the ATF’s regulatory responsibilities, such as federal firearms licenses and background checks.”

This statement suggests that the Department may no longer prioritize enforcement under the Prevent All Cigarette Trafficking Act of 2009 (“PACT Act”), which regulates the sale of electronic nicotine delivery system products (“ENDS” or e-cigarettes). During the previous administration, the Department repeatedly sought civil penalties and also announced an intention to pursue criminal sanctions under the PACT Act, specifically targeting sellers who ignored stringent age verification requirements. A shift of ATF resources away from PACT Act enforcement would represent a change from the previous administration’s emphasis on curbing the illegal sale of unauthorized ENDS products.

Immigration Enforcement

In an effort to curb immigration at the southern border, multiple memoranda issued by AG Bondi seek to penalize institutions that support illegal immigration. While much attention has been given to DOJ’s focus on targeting “sanctuary jurisdictions” that willfully fail to comply with federal immigration law, AG Bondi also put corporations on notice that any effort to obstruct or impede the federal government’s efforts to curb illegal immigration can result in DOJ enforcement. Moreover, one memorandum seeks to penalize corporations for encouraging or promoting immigration through their labor practices.

Indeed, the “[Department] shall not enter into any new contract, grant, or other agreement to provide Federal funding to non-governmental organizations that support or provide services, either directly or indirectly (e.g., through sub-contracting or other arrangements), to removable or illegal aliens.” The Department is also tasked with identifying current contracts with any non-governmental organizations that “provide services to removable or illegal aliens.” DOJ may then seek to terminate such agreements consistent with applicable statutes, regulations, and terms.

In light of the immigration-related memoranda, corporations must be highly vigilant in their hiring practices and compliance with federal immigration law. It is imperative that corporations preserve and retain the proper documents to ensure compliance.

DEIA

Bondi issued two memoranda regarding DOJ’s approach to DEI and diversity, equity, inclusion and accessibility (“DEIA”) programs. As we noted in a February 10 Legal Update, the memorandum provides that the Civil Rights Division and the Office of Legal Policy shall jointly submit to the Associate Attorney General a report containing recommendations for enforcement actions and other measures “to encourage the private sector to end illegal discrimination and preferences” by March 1, 2025. The report will identify “the most egregious and discriminatory DEI and DEIA practitioners in each sector of concern” and will include a plan with “specific steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences,” including “proposals for criminal investigations.” The report must also identify federal contractors, suppliers, vendors, and grantees who provide DEI training and materials. Moreover, the report must identify federal grantees who receive federal funding to provide or advance DEI services.

The memo does not, however, identify specific statutes or regulations that might provide the basis for a criminal prosecution or civil enforcement action. In a footnote, the memorandum indicates some activities may stand, stating the “memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex.”

The memoranda rescinds “all Department materials that encouraged or permitted race- or sex-based preferences as a method of compliance with federal civil rights laws.” In doing so, the Department must evaluate consent decrees, settlement agreements, and litigation positions for “race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI.” It also directs the Department to issue updated guidance to “narrow the use of ‘disparate impact’ theories” and “emphasize that statistical disparities alone do not automatically constitute unlawful discrimination.”

As we noted in the February 10 Legal Update, government contractors and other private employers should continue to carefully review their diversity programs, and consult with counsel to ensure that their programs comply with federal law. Moreover, companies should ensure that all certifications or representations to federal authorities regarding DEI and DEIA policies and programs are accurate, as a false certification could violate the False Claims Act.

Environmental Enforcement

The Department rescinded a Biden Administration memo that prioritized enforcement of environmental laws in disadvantaged and low-income communities. AG Bondi ordered each component of the Department to confirm by March 15 the termination of all environmental justice programs.

The memorandum aligns with a number of executive orders issued by President Trump, which sought to ramp-up oil and gas production by expediting permitting and removing incentives for electric vehicles.

Moreover, the memorandum aligns with a Trump administration policy against ESG investments. The Department is likely to cast a jaundiced eye on companies that the Department believes are prioritizing social good over profits.

Third-Party Settlements

AG Bondi issued a memorandum stating that, except in limited circumstances, settlements should not be used to require payments to non-governmental, third-party organizations that were neither victims nor parties to the lawsuits. In doing so, she rescinded two memoranda on third-party settlements issued by former AG Merrick Garland and the Environmental and Natural Resources Division. AG Bondi also directed the Associate Attorney General to provide a report “concerning strategies and measures that can be utilized to eliminate the illegal or improper use memoranda to direct payments to non-governmental, third-party organizations that were neither victims nor parties to the lawsuits.”

In prior years, DOJ has utilized third-party settlements to mandate that corporations allocate funds to third parties. For instance, following the 2010 Deepwater Horizon oil spill, the Department required BP to fund coastal restoration projects not directly related to the spill. In another settlement, Volkswagen was required to finance electric vehicle charging stations in accordance with its settlement of a diesel emissions scandal. Under the latest AG Bondi memorandum, this type of funding for projects managed by outside groups in settlements with corporate defendants will be prohibited.

Key Takeaways

• AG Bondi’s memoranda and the President’s subsequent Executive Order shift the Department's priorities of prosecution by, at least for now, de-emphasizing traditional enforcement of foreign corruption and bribery charges, and emphasizing sanctions, export control, and money-laundering crimes, with a focus on cartels and transnational criminal organizations. That said, given the Executive Order’s focus on the competitive effect on US companies, it is foreseeable that enforcement priorities could shift over time towards non-US companies and/or countries that are perceived as hostile to the interests of the United States, whether from an economic or national security perspective. The DOJ’s China Initiative – initiated during Trump’s first term – is an example. The DOJ’s revised FCPA guidance – required by the Executive Order – should provide further insight on future enforcement priorities. 
• Companies doing business in Latin America, particularly Mexico, Colombia, and Central America, should be vigilant about interactions with officials and other counterparties who may have a history of entanglements with cartels.
• Private actors should also maintain labor policies that conform to federal immigration law and preserve documentation to ensure such compliance. Similarly, private actors, government institutions and government contractors should ensure their DEI and DEIA programs conform to federal law.
• Companies should be vigilant to ensure that their internal controls and compliance programs account for rapidly changing sanctions measures, including those targeting TCOs and individuals associated with cartels.
• Even in areas where DOJ intends to decrease enforcement (such as in the tobacco industry, the Russian market, and environmental crimes), it is nevertheless essential to ensure that compliance programs reflect federal law, as DOJ priorities are subject to change and the relevant statutes of limitations extend beyond a single Presidential term.