In a June 11 memorandum to all division employees, the assistant attorney general for the Department of Justice’s (DOJ) Civil Division promulgated a new list of enforcement policies with the stated purpose of advancing the Trump administration’s policy objectives. The memo directs all Civil Division attorneys to prioritize investigations and enforcement actions advancing these priorities.
This client alert examines the details of the memo and offers some insights on what this could mean for businesses of all types.
Five Priorities
The memo identifies five mostly new priorities for Civil Division attorneys. These new priorities and the memo’s description of each can be summarized as follows:
- “Combatting Discriminatory Practices and Policies.” While previous administrations have emphasized federal anti-discrimination laws with DOJ’s Civil Rights Division taking the lead in this enforcement effort, this new memo reveals a very different approach. Specifically, the memo references President Trump’s Jan. 21 executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” as the basis for this new priority and directs that the Civil Division will use all available resources to pursue affirmative litigation combatting unlawful discriminatory practices in the private sector.
This first priority is clearly aimed at diversity, equity and inclusion (“DEI”) and diversity, equity, inclusion and accessibility (“DEIA”) programs. While the memo purports to target only “illegal” private-sector DEI/DEIA preferences, mandates, policies, programs and activities, it seems that the administration views all such programs as presumptively illegal. Thus, it is likely that any and all DEI/DEIA-related policies of federal contractors or federal funds claimants will be closely scrutinized. Indeed, DOJ has indicated its intent to use the federal False Claims Act (FCA) against such actors where appropriate.
- “Ending Antisemitism.” This second priority is grounded in a recent executive order entitled “Additional Measures to Combat Anti-Semitism,” which established a policy of combatting antisemitism “vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold accountable the perpetrators of unlawful anti-Semitic harassment and violence.” This new priority follows the attorney general’s creation of a “Joint Task Force October 7” in March and direction to DOJ components to “prioritize seeking justice for victims of the October 7, 2023 terrorist attack in Israel” as well as “combatting antisemitic acts of terrorism and civil rights violations in the homeland.” In order to assist these efforts, the memo directs the Civil Division to prioritize investigations and enforcement actions against entities that “make claims for federal funds but knowingly violate federal civil rights laws by participating in or allowing antisemitism.”
Again, potential targets of this second priority include any federal contractors or other entities claiming federal funds through grants or awards. While the neither the memo nor the EOs it references defines “antisemitism,” those EOs and this new memo seem to be aimed at discrimination, vandalism and violence against Jewish citizens, especially in the education context. The administration clearly believes that the federal government has failed to adequately address this problem, and with this new memo, DOJ has flagged its intent to use the FCA to investigate such matters.
- “Protecting Women and Children.” The memo’s third priority follows several recent executive orders specifically aimed at gender-affirming care for minors and transgender rights generally. These include an EO entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and another entitled “Protecting Children from Chemical and Surgical Mutilation.” Specifically, the memo identifies doctors, hospitals and pharmaceutical companies and other potential targets for investigation of possible violations of the Food, Drug and Cosmetic Act (FDCA) and other laws. In addition, the memo states that the Civil Division will “aggressively pursue claims under the FCA against health care providers that bill the federal government for impermissible services.”
This new federal priority follows similar investigative efforts by both state attorneys general and Congress. The pharmaceutical industry should be especially aware of DOJ’s apparent intent to scrutinize so-called “off-label” use of certain products, including hormone therapies, in ways that might arguably conflict with the FDCA.
- “Ending Sanctuary Jurisdictions.” In the wake of several presidential directives related to securing the southern border, the memo emphasizes the attorney general’s previous direction to the Civil Division to identify state and local laws, policies and practices that facilitate violations of federal immigration laws or impede enforcement efforts and further directs the division to prioritize affirmative litigation to invalidate any state or local laws preempted by federal law.
So-called “sanctuary cities” have already come under congressional scrutiny and have been the targets of affirmative DOJ litigation. This memo clearly evinces DOJ’s intent to continue to file lawsuits against state and local jurisdictions with sanctuary policies across the country based on the premise such policies undermine public safety within those jurisdictions and violate federal law.
- “Prioritizing Denaturalization.” The memo’s final priority directs the Civil Division to “maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence” and includes a priority list for such cases. The memo includes 10 priority categories for denaturalization actions, ranging from cases involving individuals who pose a potential danger to national security to any other cases that the Civil Division determines to be sufficiently important to pursue.
During the first Trump administration, a Denaturalization Section was established within the Civil Division but was eliminated under Attorney General Merrick Garland and the Biden administration. Whether or not such a section is revived, the same intent is clearly resurfacing as a new priority, and it is no longer limited to individuals who pose a national security threat.
Key Takeaways
Given these new DOJ enforcement priorities, organizations of all types that have any kind of relationship with the federal government should be proactive in ensuring that their policies and practices do not, at a minimum, violate federal law. Moreover, because the policies and practices covered by the memo are likely to draw scrutiny, special care should be taken to ensure those programs are legally sound. This is especially true in the areas discussed above, including DEI/DEIA, transgender rights, gender-affirming care and “sanctuary” policies.
Companies should err on the side of caution and utilize expert counsel to navigate this unprecedented enforcement reality.
