On February 5, 2025, the newly sworn-in United States Attorney General, Pamela Bondi, issued 14 memos to DOJ employees, which were made publicly available here.  

The memos make clear that, under AG Bondi, DOJ’s enforcement efforts will focus on (i) immigration enforcement; (ii) human trafficking; (iii) transnational organized crime; and (iv) protecting law enforcement personnel. See General Policy Regarding Charging, Plea Negotiations, and Sentencing, Feb. 5, 2025 at 3-4, available here. 

Still, several of the policy changes have important implications for traditional areas of corporate enforcement and compliance. These include: 

FCPA. A memo entitled “Total Elimination of Cartels and Transnational Criminal Organizations” (“TCOs”), instructs the FCPA Unit at Main Justice to “prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs, and shift focus away from investigations and cases that do not involve such a connection.” Further, the memo eliminates the previous requirement that the FCPA Unit in Washington authorize and prosecute any FCPA case “for all matters relating to foreign bribery associated with Cartels and TCOs” and instead allows each of the local 94 U.S. Attorney’s Offices across the country to initiate such investigations and file charges. 

IEEPA/Material Support Cases. Similarly, the Department has now suspended the longstanding requirement for local U.S. Attorney’s offices to obtain approval from the National Security Division in Washington before filing charges or seeking search warrants in connection with terrorism and sanctions-related investigations “target[ing] members or associates of any cartel or TCO designated as a Foreign Terrorist Organization or SDGT pursuant” to President Trump’s January 20, 2025 Executive Order, which we discussed here. 

Scale back of FARA investigations. Prior to 2016, the Foreign Agents Registration Act, and a related criminal statute, 18 U.S.C. § 951, both of which prohibit acting in the U.S. as an agent of a foreign power, were essentially a seldom used, backwater of federal criminal law. However, after a 2016 DOJ Office of Inspector General Report recommended a more comprehensive FARA enforcement strategy, DOJ brought numerous FARA cases over the last nine years, including several high profile matters. AG Bondi’s February 5 memo entitled Charging, Plea Negotiations, and Sentencing reverses this trend, directing that “[r]ecourse to criminal charges under [FARA and Section 951] shall be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors” and that DOJ’s National Security Division’s FARA Unit “shall focus on civil enforcement, regulatory initiatives, and public guidance.” 

Restrictions on the Use of Guidance Documents. Finally, AG Bondi rescinded the prior administration’s 2021 memo entitled “Issuance and Use of Guidance Documents by the Department of Justice.” Among other things, that now-repealed memo recognized that, while agency guidance documents cannot form the basis for an enforcement action, DOJ attorneys could rely on them in prosecuting an enforcement action because, for example, the guidance document was evidence of an agency’s interpretation of a rule or regulation and thus arguably evidence that the defendant knew he or she not abiding by that rule or regulation.  

Takeaways:

• The memos show the Trump DOJ’s intent to use traditional “white collar” offenses like the FCPA and criminal sanctions violations to target terrorism and drug trafficking. 
• Given the wide influence of cartels and TCOs in parts of Mexico, Latin America, and the Middle East, companies with operations in these regions should double down on compliance efforts, particularly on counter-party and third-party risk, as we discussed here.  
• Indeed, at least where there is a nexus to cartels or TCOs. the memos remove much of the longstanding, essentially day-to-day level oversight Main Justice in Washington had over FCPA and national security investigations. In light of the newfound autonomy given to U.S. Attorney’s Offices to pursue these types of cases, we may see more FCPA and sanctions-related criminal investigations, at least to the extent prosecutors can identify some level of cartel or TCO nexus.  
• Further, DOJ shares enforcement responsibility for sanctions violations with the Treasury Department’s Office of Foreign Asset Control and for the FCPA’s books and records provisions with the Securities and Exchange Commission. Nothing in these memos impacts OFAC or SEC jurisdiction in these areas. 
• Finally, as we noted here before President Trump’s inauguration, regardless of any particular administration’s enforcement priorities, misconduct that occurs today may become the focus of an investigation or enforcement action years later, during a different administration with different priorities. For example, in fourth quarter 2024, the DOJ resolved four FCPA actions against companies, all of which involved unlawful conduct that occurred between 2012 and 2020. A strong, balanced compliance program remains important to avoid or minimize the risks of investigations that may not materialize until years later.

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