On February 5, 2025, the Office of the Attorney General issued a new policy to all Department of Justice (DOJ or Department) employees highlighting the boundaries of prosecutorial discretion with respect to charging, plea bargaining and sentencing. The policy also previews the Department’s shifts in enforcement priorities and imposes limitations on the scope and use of criminal charges under the Foreign Agents Registration Act (FARA) and related statutes requiring public disclosures by certain foreign agents.
Regarding charging decisions, among other things, the policy emphasizes that, “in determining whether to commence or recommend prosecution or take other action against a person, a prosecutor ‘may not be influenced’ — in any respect — by the person’s ‘political association, activities, or beliefs.’”
The policy further adds that “[t]here is no place in the decision-making process for animosity or careerism,” which, citing President Donald Trump’s Executive Order 14147, “Ending the Weaponization of the Federal Government,” “previously led to the improper weaponization of the criminal justice system at the federal and state levels.”
“[I]n the absence of unusual facts,” the policy states, prosecutors should charge and pursue the most serious, readily provable offense, which include those punishable by death, as well as those with the most significant mandatory minimum sentences and most substantial recommendations under the U.S. Sentencing Guidelines. Subject to certain high-level Department approvals, the policy’s “unusual circumstances” carve-out allows prosecutors to charge a less serious crime under “circumstances in which good judgment would lead a prosecutor to conclude that strict application of this policy is not warranted or would be inconsistent with the investigative and charging priorities of the Department.”
With respect to plea negotiations, the policy likewise emphasizes that “[t]here is no room in plea bargaining for political animus or other hostility,” further instructing that “[p]rosecutors may not use criminal charges to exert leverage to induce a guilty plea” and may not “abandon pending charges to achieve a plea bargain that is inconsistent” with the initial assessment of the seriousness of the defendant’s conduct.
Concerning sentencing, the policy asserts that, where charging was consistent with this policy’s provisions, a sentence within the applicable recommended Guidelines range will also be consistent with sentencing factors outlined in the Justice Manual.
Finally, the policy outlines the Department’s top investigative and enforcement priorities, which include:
- Immigration enforcement.
- Human trafficking and smuggling.
- Transitional organized crime, cartels and gangs.
- Protecting law enforcement personnel.
- Shifting resources in both the National Security Division (NSD) and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Notably, with respect to national security, the policy disbands the DOJ National Security Division’s Corporate Enforcement Unit and the Foreign Influence Task Force, and instructs prosecutors to limit criminal charges under FARA and 18. U.S.C. § 951, “to instances of alleged conduct similar to more traditional espionage by foreign government actors.”
The policy also mandates that the Counterintelligence and Export Control Section — a division of the NSD — including the FARA Unit, which enforces FARA, “shall focus on civil enforcement, regulatory initiatives, and public guidance.”
See the full Executive Briefing publication
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