Trump DOJ Returns to Prior Charging and Sentencing Policy and Prioritizes Immigration Enforcement

On January 21, 2025, Acting Deputy Attorney General Emil Bove issued a department-wide memorandum (the Bove Memorandum) directing federal prosecutors to return to the charging and sentencing policies of earlier administrations. The Bove Memorandum directs prosecutors to charge and pursue “the most serious, readily provable offenses,” defined in the memo to mean those with the highest mandatory minimum sentences and highest Sentencing Guidelines’ ranges. The Bove Memorandum also rescinds Biden-era policies that called for prosecutors to make charging and sentencing decisions based on an “individualized assessment” of each case and sought to reduce sentencing disparities by reserving mandatory minimum charges for serious, high-level, or violent offenders.

As a practical matter, individual federal prosecutors and their supervisors have considerable discretion about which cases and charges to bring. Federal prosecutors have limited resources, and cannot possibly charge all crimes. Prosecutors decline to bring cases for all sorts of reasons, including concern about the likelihood of conviction, prioritizing other types of offenses, and deferring to other enforcement authorities. Once they decide to charge, federal prosecutors also have power to choose which crime to charge. For example, depending on the weight of the substance involved, prosecutors have the ability to charge a narcotics offense that carries a mandatory minimum or one that does not. Prosecutors also may exercise discretion on what sentence to seek. This allows prosecutors to use their judgment as to the sentence to recommend to the judge based on the specific facts of the case. But discretion for federal prosecutors is a continuum, and U.S. Department of Justice (DOJ) leadership may broaden that discretion or narrow it.

Recent Democratic administrations have favored a more expansive view of prosecutorial discretion. Although the directive to pursue the “most serious, readily provable offenses” dates from the Carter administration, the Clinton DOJ gave prosecutors wider latitude to charge offenses by adding a directive to seek sentences based on an “individualized assessment of the defendant’s conduct[.]” The Bush administration rescinded the “individualized assessment” directive, but the Obama administration reinstated it. After it was again rescinded in the first Trump administration, the Biden DOJ took it one step further and actively discouraged prosecutors from automatically bringing charges that included mandatory minimum sentences, reserving those offenses for cases where other charges would not sufficiently reflect the seriousness of the defendant’s conduct, the danger to the community, or harm to victims. This signaled that prosecutors would have more room to choose from a variety of possible available charges and sentences, and often served to free judges from imposing a statutorily-required sentence selected by the prosecutor.

The Bove Memorandum, in contrast, returns to the policy of earlier Republican administrations of requiring prosecutors to charge the most serious readily provable charge and sentence available, including charges with mandatory minimum sentences. The new (old) policy likely will result in a sizeable increase in the number of mandatory minimum charges DOJ will file, particularly in narcotics cases. Most white collar and financial crimes (e.g., money laundering, insider trading, and wire fraud) do not contain mandatory minimum sentences, though there may be an increase in Aggravated Identity Theft charges (18 U.S.C. § 1028A), and its two-year mandatory minimum sentence that must be served consecutively to other sentences. The new policy may impact prosecutors’ decisions regarding whether to add either of these charges to cases in which other charges would otherwise be sufficient for conviction. Further, individual and corporate defendants may have fewer options in the future for negotiating less serious charges, and for arguing their case based on individual merits.

In line with other administration announcements, the Bove Memorandum also called for a redirection of federal prosecution resources toward immigration enforcement. Specifically, the memorandum directed that prosecutors “shall pursue” criminal charges when they are presented by federal, state, or local law enforcement, and any declinations must be reported directly to the Attorney General and Deputy Attorney General on an urgent basis. U.S. Attorney’s Offices also are directed to report their immigration-related statistics to DOJ leadership on a quarterly basis, and were told to alert their district courts to prepare for an influx of immigration cases. Finally, prosecutors were instructed that they “shall investigate” incidents of state and local resisting or failing to comply with immigration authorities for possible criminal prosecution, and any decisions not to prosecute those incidents again must be reported to DOJ leadership on an urgent basis.

We will keep a close eye on how the DOJ reallocates its enforcement resources, and how it will balance the focus on immigration enforcement with other priorities.

For questions on this or any other subject, please reach out to the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

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