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Amidst the tidal wave of executive orders, presidential appointments and policy announcements, it is easy to treat the interim policy memo from the acting deputy attorney general as just another ripple of nominal change that occurs when Democrats replace Republicans or Republicans replace Democrats. But it would be a serious oversight to miss the memo’s dramatic departure from status quo and even from the first Trump administration’s view of federal prosecutor responsibilities.
With every party turnover at the White House, a philosophical tug-of-war resumes over whether federal prosecutors should be tough on crime or more “nuanced” in their approach to punishment. That memorandum battle started in 1989 when Attorney General Dick Thornburgh ordered prosecutors to pursue the “most serious and readily provable offense” and since then, the Republican AG’s consistently have encouraged seeking the death penalty and charging mandatory minimum sentencing statutes. This latest memo is certainly consistent with that approach.
The heart of the memo is immigration enforcement. The memo emphasizes the need for the Department of Justice (DOJ) and the Department of Homeland Security (“DHS”) to attack cartels and transnational criminal organizations, to reduce violent crime committed by cartels, gangs and illegal aliens, and to shut down the cross-border flow of fentanyl.
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Those targets track the President Donald Trump campaign’s points of emphasis and come as no surprise. Similarly, the return to the Thornburgh memo’s aggressive guidance for prosecutors to charge and pursue “the most serious and readily provable offense” signals an aversion to soft plea agreements and “charge bargaining,” where prosecutors low-ball the criminal conduct in a plea agreement to resolve the case. But then it gets interesting.
The memo establishes that a prosecutor’s discretion to resolve a case with a softer plea is limited to “unusual facts.” It specifically mentions the appropriateness of pursuing the death penalty and mandatory minimum sentences in repeat offender drug and/or firearm cases. The interim attorney general then turns his attention to the “Faithful Execution of the Immigration Laws,” and the more measurable changes begin.
For instance, in announcing the priority of pursuing immigration offenses, the memo specifically includes Title 8 U.S. Code § 1325, illegal entry by an alien. This is a six-month misdemeanor for simply being illegally inside the U.S., and federal prosecutors are likely to bristle at devoting inordinate time to a simple misdemeanor that could be pursued, well, millions of times across the nation.
Historically, U.S. Attorney’s Offices (“USAOs”) with significant immigration issues rarely use the misdemeanor but instead prosecute cases of illegal re-entry after removal for a felony (or better, an “aggravated felony.”) These felony immigration charges can be used as leverage to flip gang members or at least serve as a real deterrent – adding years of federal imprisonment to the equation before the defendant is again deported to his or her country of origin.
Rejecting potential immigration cases is no longer the simple prerogative of the local U.S. attorney. The memo requires the prosecutor to disclose declinations as urgent reports directly to the attorney general, within days or sometimes even hours of the decision. No U.S. attorney is going to be eager to repeatedly send “urgent” reports to the attorney general about his or her refusal to prosecute immigration cases. This practical deterrent enhances the power of the Department of Homeland Security – their cases are being prioritized in every way through this Memo.
Similarly, federal programs targeting drugs and gangs (the Organized Crime Drug Enforcement Task Force, aka “OCDETF”) and Project Safe Neighborhood (“PSN”) which targets guns and gangs, now have to provide resources supporting immigration prosecutions. Making well-funded OCDETF units prioritize immigration offenses reflects a massive power shift away from DOJ and toward Secretary Kristi Noem’s DHS.
Not only are the U.S. attorneys watching their investigators pivot to immigration prosecutions, but the memo tasks the USAOs with investigating incidents of resisting, obstructing or failing to comply with lawful immigration-related commands. In short, “sanctuary” advocates or even prosecutorial inaction are being considered fodder for potential criminal prosecutions.
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Consistent with that aggressive approach, the memo fleetingly mentions the DOJ’s new creation of a Sanctuary Cities Enforcement Working Group, which presumably exists to take legal action against inconsistent policies or local practices that thwart immigration enforcement action.
Like many government documents, this memo buries some juicy tidbits in the footnotes. Specifically, the memo rescinds earlier memos promulgated by democratic regimes in 2013, 2014, 2021, and former AG Merrick Garland’s memo from December 2022.
The memo establishes that a prosecutor’s discretion to resolve a case with a softer plea is limited to “unusual facts.” It specifically mentions the appropriateness of pursuing the death penalty and mandatory minimum sentences in repeat offender drug and/or firearm cases.
The Garland memo was essentially a repudiation of the Thornburgh approach – emphasizing a more individualized approach to prosecution and urging prosecutors to seek “sufficient, but not greater than necessary” punishment. Somehow, that permission slip for mercy was completely ignored in the January 6 prosecutions, as the government invariably asked for higher sentences than the already-severe bench was willing to mete out.
But in many USAOs, the Garland memo’s flexibility, such as ignoring mandatory drug sentencing except in particularly aggravated circumstances and overtly permitting prosecutors to join the defense attorneys in calling the drug sentencing guidelines too high, gave a green light for local autonomy in plea bargaining. But, as they say, there’s a new sheriff in town.
It is true that the latest memo is framed as a DOJ interim policy. That could be read to suggest that newly confirmed Attorney General Bondi might consider a different approach.
But Bondi’s first announcements as AG — including pausing federal funding for sanctuary cities, pursuing obstruction cases against jurisdictions thwarting immigration enforcement laws, and evaluating nongovernmental organization (“NGO”) support of illegal aliens for defunding or even prosecution — confirm that the policies and sentiment behind her predecessor’s memo are here to stay.
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