If you thought there would be no news coming out of President Biden’s Department of Justice, since his pick for Attorney General has yet to be confirmed, you would be wrong. Just over a week after Biden’s inauguration, the Acting Attorney General, Monty Wilkinson, issued interim guidance that is likely to have a major impact on criminal prosecutions, including of corporations, going forward while the new Justice Department formulates its long-term strategy.

The January 29, 2021 Wilkinson Memo rescinded Trump-era guidance that limited line prosecutors’ discretion over certain charging decisions and reinstated a 2010 policy issued by former AG Eric Holder. The Trump rule required prosecutors to charge defendants with the most serious provable offense (i.e., the charge carrying the highest penalty) in all cases or take the extra step of obtaining a supervisor’s approval to charge something less serious. By renewing the Obama-era policy, Acting Attorney General Wilkinson restored individual prosecutorial discretion. His goal, as articulated in his memo, is to promote justice by ensuring each case gets an “individual assessment” of the merits as prosecutors weigh decisions about charging, plea agreements, and advocacy around sentencing.

Despite its “interim” label, the memo signals a return to DOJ’s Obama-era preference for a more nuanced approach to prosecution. While we expect the greatest impact to be on drug cases (where you see a lot of mandatory minimum sentencing requirements that differ based on the level of offense charged), the policy could also impact charging and sentencing decisions for corporations facing criminal charges – for example, money laundering charges, which sometimes have higher sentencing guideline ranges than the underlying fraud.

All things considered, defense counsel would be wise to keep this “new” guidance in mind when formulating a defense strategy for any corporate client facing potential criminal charges.

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