Bondi Justice
The new US Attorney General began her work last week with a flurry of policy memos. They answer last week's question about Bondi's perspective and reveal what to expect from her tenure.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Middle District of Florida, a Russian man and an Uzbek man were charged with conspiracy to file more than 100 fraudulent voter registration cards with the Pinellas County Board of Elections in 2023.
In the Northern District of Ohio, a man was charged with selling firearms to people in Saudi Arabia over a five year period by falsely stating on customs forms what he was sending.
In the Eastern District of Louisiana, a doctor was sentenced to 87 months in prison for illegally distributing more than 1.8 million doses of controlled substances, including morphine and oxycodone, and defrauding Medicare of $5.4 million.
The Bondi Memos
Last week the Senate confirmed Pam Bondi as United States Attorney General and she was quickly sworn in at an Oval Office ceremony. She wasted no time issuing policy directives, releasing 14 different memos to Department employees. Some of the memos are standard policy changes that come with any new Administration. Others implement Bondi’s particular policy agenda. The remaining memos implement President Trump’s Justice Department policy agenda. Much has been made of them in the few days since their announcement. Their effects, however, remain to be seen. As I argued in my very first article (you can find it here!), this is what the first presidential administrations established. Federal prosecutors would, for better or worse, participate in the implementation of that administration’s law enforcement policy.
When a new presidential administration begins, especially when there is a change in party, the incoming Attorney General will circulate guidance on charging, plea negotiations, and sentencing. Federal prosecutors enjoy extensive discretion and the Attorney General guidance provides a framework for how federal prosecutors should utilize it. The first point Attorney General Bondi makes is that a person’s “political associations, activities, or beliefs” should not form the basis for a criminal prosecution. She asserts that these considerations played a role in the recent weaponization of the Justice Department and it must stop. When it comes to which charges to pursue, Bondi instructed that federal prosecutors must pursue to most serious readily provable offense. She defined that as a charge permitting the death sentence, a mandatory minimum, or the longest possible sentence under the federal sentencing guidelines. This has been a long-standing Justice Department policy, across political parties. However, the Biden Administration created more leeway for federal prosecutors to charge otherwise. Attorney General Bondi limited the circumstances to the “absence of unusual facts.” She did not define these but instructed that the US Attorney, the Attorney General or a designee must approve any such instance.
The memo also defined the Department’s enforcement priorities. Not surprisingly, it began with immigration. She wrote, “The Department of Justice shall use all available criminal statutes to combat the flood of illegal immigration that took place over the last four years, and to continue to support the Department of Homeland Security's immigration and removal initiatives.” For at least a decade, immigration offenses were already the most commonly prosecuted crime category. Now, the Department will become more focused on these offenses. This includes prosecuting anyone who interferes with immigration investigations. Attorney General Bondi expanded on this in a separate memo, instructing prosecutors to prosecute those leading “sanctuary cities” for harboring illegal aliens.
Following this, Bondi focused on her priorities. As she stated at her confirmation hearings, human trafficking would be a top priority. In her guidance memo, she identified human trafficking as a by-product of illegal immigration. To better prosecute these cases, she made a task force report directly to the Attorney General. She also restored emphasis to rooting out two major drug cartels from the United States. In a separate memo, the Attorney General emphasized focusing on high-level cartel members. She waived the formal approval requirements normally associated with terrorism-related charges if the case involved one of these high-level members. Finally, she noted changes within the Department’s National Security Division. Those handling matters of corporate compliance and the Foreign Agent Registration Act would now handle other matters.
Another category of memos highlighted important policy priorities by creating or removing task forces. One memo created a task force to prosecute offenses related to the October 7, 2023 attacks on Israel from HAMAS. The group will pursue criminal cases against those who carried out the attacks. In the one already pending case, the Department will work to bring the offenders to the United States. It will investigate and prosecute those who fund HAMAS. It will also investigate and prosecute HAMAS supporters in the United States who engage in terrorism and commit antisemitic civil rights violations, “including those on college campuses.”
At the same time, the Attorney General rescinded the Biden Administration’s emphasis on environmental justice. She cited President Trump’s statement that “environmental extremism” has created inflation and too many regulations. The Biden Administration had made enforcing environmental laws, particularly in lower income areas, a priority. The Trump Administration removed this priority and placed environmental crimes on an even-footing with other offenses.
The last two memos of note seek to redress what Attorney General Bondi and President Trump perceived as improper activity. The first deals with the weaponization of the Justice Department under the Bident Administration. As I noted two weeks ago, at least as it relates to the President, these allegations are untrue. Regardless, the Department will create a Weaponization Task Force that will look into alleged cases of weaponization during the Biden Administration. Barring unforeseen circumstances, next week’s issue will examine this memo in more detail.
The second memo discusses the importance of zealous advocacy on behalf of the United States government. It aims at career prosecutors who refused to endorse questionable Trump Administration arguments during his first presidency. She begins by observing the President has complete executive power under the Constitution and that entails the President determining that national interests. As the government’s lawyers, Justice Department attorneys are to “zealously advance, protect, and defend their client's interests.” This includes “vigorously defending presidential policies and actions against legal challenges on behalf of the United States.” She then warns the Department that attorneys who do not advance “good faith” arguments due to personal or political beliefs will be disciplined.
These last two memos differ significantly from the first memos. The frst memos are policy memos aimed at regulating prosecutorial discretion and identifying where prosecutorial resources should be devoted. This is the prerogative of any new presidential administration. People can certainly challenge the content of the memos and disagree vehemently about the priorities but that is why we have elections. The latter two memos, however, while also discussing policy, seem to focus more on perceived misconduct of career federal prosecutors.
They also place Justice Department attorneys in a difficult place. On the one hand they must advance the Administration’s arguments, even if legally dubious. They must determine whether the Administration’s arguments are “good faith” arguments or not. What the Administration considers a “good faith” argument and what the courts consider a “good faith” argument could be different. Siding with the courts could cost federal prosecutors their jobs. Siding with the Department, however, could cost federal prosecutors their law licenses. This will likely impact those in the Civil Division more than those in the Criminal Division or United States Attorney offices. Still, it is not impossible that the Department will want to advance charges on those who prosecuted Donald Trump and advance novel legal theories to do so. Whether a federal prosecutor should go along with these novel theories raises significant prosecutorial ethics questions. Answers the individual prosecutors will have to find for themselves.
Ultimately, the effects of these memos will not be felt immediately. Only time will tell us whether this collection of policy memos will have any impact on the Justice Department. It is just another thing to add to the watch list as the federal government undergoes a revolutionary transformation.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!