4 Things Everyone Should Know About the DOJ’s Seismic Policy Shift

Acting Deputy Attorney General Emil Bove issued a Memorandum to all Department of Justice (DOJ) employees outlining interim guidance in light of the Executive Orders issued by President Donald Trump on his first day in office. The memo rescinds prior inconsistent DOJ policies and represents a significant shift in DOJ’s priorities. And it leaves little doubt that illegal immigration is President Trump’s primary focus.

DOJ is the federal executive agency charged with enforcing federal laws. To that end, the memo tasks DOJ employees with executing “policies that the American people elected President Trump to implement”— including those set forth in the President’s immigration-focused Executive Order titled “Protecting the American People Against Invasion.”

Here are 4 things you should know:

1. State and local actors who resist, obstruct, or fail to comply with President Trump’s immigration initiatives face potential criminal prosecutions.

Citing the Supremacy Clause of the United States Constitution, which makes federal law the supreme law of the land, DOJ mandates “state and local actors” comply with President Trump’s immigration policies. The memo further directs federal prosecutors to investigate and criminally prosecute those who resist, obstruct, or otherwise fail to comply with the President’s immigration-related commands.

Notably, the memo refers to state and local actors (rather than officials), signaling enforcement actions are not necessarily limited to public officials. The use of the term “actors” is deliberate, signifying an expansion of criminal liability to anyone at the state or local level who thumbs their nose at federal immigration laws. 

Those who obstruct or impede immigration enforcement efforts also can be charged with conspiring to commit an offense against the United States or harboring illegal aliens, both of which are federal felonies that carry the potential for significant jail time and hefty fines.

2. U.S. Attorneys are instructed to proactively search for state and local activities that may violate President Trump’s immigration initiatives.

The memo further tasks DOJ’s Civil Division and its members in each of the 93 U.S. Attorney’s Offices across the nation with identifying state and local laws, policies, and activities that are inconsistent with the President’s immigration initiatives and taking necessary legal action to challenge them.

The memo cites threats to public safety and national security as justification for these criminal and civil sanctions.

These new DOJ policies have considerable potential impact on state and local entities that serve immigrant populations, such as public school systems, healthcare facilities, and charitable organizations. DOJ’s use of broad terminology (i.e., “activities”) reaches beyond codified laws, regulations, ordinances or even formalized policies to even informal practices and activities.

If a state or local entity enacts policies or engages in activities that arguably run contrary to the President’s immigration agenda, it may find itself embroiled in civil litigation with DOJ—or worse, the target of a criminal investigation.

3. Federal prosecutors must bring criminal charges against those engaged in immigration enforcement “misconduct” or justify their decision to DOJ.

Not only does the memo direct DOJ components to investigate and prosecute state and local actors, it goes a step further, making it difficult for federal prosecutors to decline to pursue criminal charges in such cases.

Prosecutors who opt not to charge state and local actors engaged in immigration enforcement “misconduct” must justify their decision and report it to the highest levels of DOJ, leaving little room for prosecutorial discretion and putting prosecutors under DOJ’s microscope when individual prosecutorial decisions run contrary to DOJ directives.

4. DOJ has expanded the authority to enforce federal immigration laws.

The memo requires federal prosecutors to pursue the most serious, readily provable criminal charges related to violations of federal immigration laws, when such violations are presented to the U.S. Attorney’s Office by federal, state, or local law enforcement partners. It further requires national initiatives such as Project Safe Neighborhood (established to reduce gun violence) to shift resources and attention to the investigation and prosecution of immigration-related offenses.

To expand such investigations, the memo compels federal law enforcement agencies, such as FBI, DEA and ATF, to review their files within the next 60 days and report identifying information and/or biometric data for any non-citizens illegally in the United States to the Department of Homeland Security (DHS).

More still, in the wake of President Trump’s Executive Order, DHS rescinded Biden-era immigration guidance that limited immigration arrests in sensitive areas, such as schools, hospitals, and churches. This expands federal authorities’ ability to enforce immigration laws in locations that were previously off-limits.

Not only have all doors been opened to make way for immigration enforcement, but the number of federal law enforcement agents able to assist in carrying out President Trump’s immigration initiatives has expanded as well. This week, DHS granted immigration enforcement and deportation authority to certain DOJ agencies, including DEA, ATF, and the U.S. Marshal’s Service.

How this swift and significant policy shift plays out on a practical level remains to be seen. But the potential impacts are far-reaching and transcend the criminal sphere. Woods Rogers Government & Special Investigations team is actively monitoring and analyzing these developments, and we are here to help you navigate in the wake of this policy implementation. Please contact this article’s authors, another member of the team, or your current Woods Rogers attorney to understand more about how DOJ’s policy shifts may impact your operation.