Featured Expert Contributor, White Collar Crime and Corporate Compliance
Greg Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP. He is the WLF Legal Pulse‘s Featured Expert Contributor on White Collar Crime and Corporate Compliance and also serves on WLF’s Legal Policy Advisory Board.
In a June 11 memorandum from the Assistant Attorney General for the Civil Division to all Division employees, a new list of enforcement policies was promulgated with the stated purpose of advancing the Trump Administration’s policy objectives. The memo directs all Civil Division attorneys to prioritize investigations and enforcement actions advancing these priorities. This post examines the details of the memo and offers some insights on what this could mean for businesses of all types.
Five Priorities
The memo identifies five mostly new priorities for Civil Division Attorneys. These new priorities and the memo’s description of each can be summarized as follows:
Combatting Discriminatory Practices and Policies
While previous administrations have emphasized the enforcement of federal anti-discrimination laws with DOJ’s Civil Rights Division taking the lead in this effort, this new memo indicates that the Civil Division will have a role to play. Specifically, the memo references the president’s January 21 executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” as the basis for this new priority and directs that the Civil Division will use all available resources to pursue affirmative litigation combatting unlawful discriminatory practices in the private sector.
This first priority is clearly aimed at diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) programs. Consistent with the administration’s perspective on such programs, it is likely that any and all DEI/DEIA-related policies of federal contractors or federal funds claimants will be closely scrutinized. Indeed, DOJ has indicated its intent to use the federal False Claims Act (FCA) against such actors where appropriate.
Ending Antisemitism
This second priority is also grounded in a recent executive order entitled “Additional Measures to Combat Anti-Semitism” which established a policy of combatting antisemitism “vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold accountable the perpetrators of unlawful anti-Semitic harassment and violence.” This new priority follows the Attorney General’s creation of a “Joint Task Force October 7” and direction to DOJ components to “prioritize seeking justice for victims of the October 2, 2023 terrorist attack in Israel” as well as “combatting antisemitic acts of terrorism and civil rights violations in the homeland.” In order to assist these efforts, the memo directs the Civil Division to prioritize investigations and enforcement actions against any federal contractors or other entities claiming federal funds through grants or awards that “make claims for federal funds but knowingly violate federal civil rights laws by participating in or allowing antisemitism.”
Protecting Women and Children
The memo’s third priority arises from two executive orders (here and here). Specifically, the memo identifies doctors, hospitals, and pharmaceutical companies and other potential targets for investigation of possible violations of the Food, Drug, and Cosmetic Act (FDCA) and other laws. In addition the memo states that the Civil Division will “aggressively pursue claims under the FCA against health care providers that bill the federal government for impermissible services.”
This new federal priority follows similar investigative efforts by both state attorneys general and Congress. The pharmaceutical industry should be especially aware of DOJ’s apparent intent to scrutinize “off-label” use of certain products including hormone therapies in ways that might arguably conflict with the FDCA.
Ending Sanctuary Jurisdictions
In the wake of several presidential directives related to securing the southern border, the memo emphasizes the Attorney General’s previous direction to the Civil Division to identify state and local laws, policies, and practices that facilitate violations of federal immigration laws or impede enforcement efforts and further directs the Division to prioritize affirmative litigation to invalidate any state or local laws preempted by federal law.
Prioritizing Denaturalization
The memo’s final priority directs the Division to “maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence” and includes a priority list for such cases. The memo includes ten priority categories for denaturalization action, ranging from cases involving individuals who pose a potential danger to national security to any other cases that the Civil Division determines to be sufficiently important to pursue.
During the first Trump administration, a Denaturalization Section was established within the Civil Division but was eliminated under Attorney General Garland. Whether or not such a section is revived, the same intent is clearly a new priority and it is no longer limited to individuals who pose a national security threat.
Key Takeaways
Given these new DOJ enforcement priorities, organizations of all types that have any kind of relationship with the federal government should be proactive in ensuring that their policies and practices do not, at a minimum, violate federal law. Companies should err on the side of caution when navigating this new enforcement reality.