This blog post concerns analysis of DOJ’s past and potential priorities but is not intended to express any viewpoint or commentary with respect to those priorities.
President-elect Donald J. Trump’s inauguration as 47th president of the United States will take place on Monday, January 20, 2025. With each change in administration, white collar practitioners around the country attempt to forecast DOJ enforcement priorities for the upcoming term.
In this rare instance—the second time in history when a president has served non-consecutive terms—the BFV White Collar Litigation and Government Investigations team is preparing for the next four years by drawing on experience gained during President Trump’s first term.
BFV’s Alyssa G. Gill recently sat down with Brett A. Switzer to discuss his impressions of DOJ priorities and enforcement trends from the first Trump administration, which may help inform predictions for the next four years. This blog piece memorializes the high points of their discussion.
Immigration
With President Trump’s continued emphasis on immigration and border safety, DOJ could increase attention to immigration fraud. During his first term, we saw a rise in cases predicated on alleged fraud on the United States via the H-1B visa program. In these cases, DOJ receives significant support from other agencies, including DOL (U.S. Department of Labor), USCIS (U.S. Citizen and Immigration Services, including its Fraud Detection and National Security unit), and DOS (U.S. Department of State).
For business owners, this means increased enforcement (e.g., I-9 and E-Verify audits and worksite visits), increased scrutiny of employers sponsoring foreign nationals for status and employment visas, and additional burdens on employers staffing their companies through foreign labor. The latter can entail additional vetting, lengthier processing times, an increase in RFEs, and an increase in denials. Industries that rely heavily on immigrant labor (e.g., agriculture, food processing, construction, etc.) will feel these effects more acutely. All interactions with state and/or federal government agencies should be handled under advice of counsel.
Criminal cases are typically brought under 18 U.S.C. § 371 alleging conspiracy to commit visa fraud (18 U.S.C. § 1546), but also commonly include allegations of mail and wire fraud (18 U.S.C. § 1343), false statements (18 U.S.C. § 1001), and bringing in and harboring certain aliens (18 U.S.C. § 1324). Many of the implicated statutes give the federal government asset seizure and forfeiture rights, in addition to administrative remedies such as disgorgement and civil monetary penalties.
We have had great success representing clients at all stages of these types of criminal cases, including pre-trial diversion, plea negotiation, and defense of pre- and post-indictment forfeiture actions. We have also earned recent victories in the face of subsequent collateral challenges by the government vis-a-vis suspension and debarment proceedings, visa revocation proceedings, etc.
Public Safety + Waste, Fraud & Abuse (Healthcare and Government Contracts)
These investigations and prosecutions are always in vogue. During President Trump’s first term, Mr. Switzer represented clients in criminal investigations involving telehealth providers and testing labs (e.g., genetic testing, drug testing, etc.), compounding pharmacy and pill mill prosecutions, and a handful of civil False Claims Act cases. On the government contracts side, DOJ prioritized False Claims Act cases involving compliance with the Buy American Act (BAA), Trade Agreements Act (TAA), the applicable Federal Acquisition Regulation (FAR), Cost Accounting Standards (CAS), and Defense Contract Audit Agency (DCAA) standards. We expect to see more of the same with possible emphasis on BAA compliance considering the administration’s “America First” policy and its record on trade.
National Security
National security cases come in many forms. Sometimes, they involve alleged mishandling of protected state secrets (e.g., classified information, national defense information, etc.) typically prosecuted by DOJ’s National Security Division (NSD) with help from the stakeholder agency. Another common variant involves violations of trade restrictions/sanctions against countries deemed a threat to national security under the International Emergency Economic Powers Act (IEEPA) and the Export Control Reform Act (ECRA) of 2018, often handled with help from the Bureau of Industry and Security (BIS, within the Department of Commerce).
By way of example, Mr. Switzer was involved with three high-profile cases during President Trump’s first term, as follows:
- United States v. Reality Winner (USDC SDGA, No. 17-cr-34) (prosecuted under the Espionage Act)
- United States v. Masoud Soleimani (USDC NDGA, No. 18-cr-216) (indicted under IEEPA, but dismissed before trial)
- In re John Durham Special Counsel Investigation (investigating the origins of the FBI investigation into Russian interference in the 2016 United States election cycle)
Each of these matters—like the investigation into former U.S. Secretary of State Hillary Clinton’s emails (declined) and the more recent “Mar-a-Lago” investigation in SDFL (currently on appeal to the Eleventh Circuit Court of Appeals as to remaining defendants)—involved classified information.[1]
Even prior to Special Counsel Jack Smith’s election subversion and Mar-a-Lago investigations, President Trump questioned DOJ’s prosecutorial discretion when the Department pushed for the longest ever sentence imposed in federal court for an unauthorized release of government information to the media (in Reality Winner’s case) after declining to prosecute former U.S. Secretary of State Hillary Clinton (when the FBI found numerous instances of mishandling).
The Mar-a-Lago case and the January 6th election subversion case are now complete—both cases against President Trump have been dismissed—because DOJ policy prohibits prosecuting a sitting president.
Earlier this week, Judge Aileen Cannon (USDC SDFL) authorized the release of Special Counsel Jack Smith’s report (vol. 1) on the election interference case. A copy of the published report is available here. The anticipated report on Mar-a-Lago (vol. 2) will not be publicly released at this time due to pending cases involving other remaining defendants. However, it remains the subject of hotly contested litigation, with an emergency hearing scheduled to take place on January 17, 2025.
We will monitor developments in national security investigations and prosecutions during President Trump’s second term, especially those involving alleged mishandling of classified information and/or national defense information.
BFV expects similar patterns to unfold during President-Elect Trump’s second term. As the new term begins, please look for updates on these and other relevant topics from the White Collar Litigation & Government Investigations team at BFV. We are here to assist you in the event you are confronted with a federal government investigation or enforcement action.
[1] Cases involving classified information present unique challenges. Whereas most litigation is subject to a presumption of open/public proceedings, cases involving state secrets proceed under an exception to this general rule to avoid publicizing classified material, the disclosure of which could potentially harm national security.
The Classified Information Procedures Act (CIPA) provides a framework for balancing the defendant’s due process rights with the potential security risk associated with disclosure, though it largely inures to the benefit of the government. CIPA procedures broadly involve a party (i.e., DOJ) giving notice to the court of its belief that classified information will be implicated in the case; a CIPA hearing during which the court assesses the national security risk of the information’s disclosure and determines its acceptable use, relevance, and admissibility; and an array of other tools designed to ensure classified information is disclosed only to the extent necessary to ensure a defendant receives a fair trial while limiting the national security threat posed by disclosure.
In practice, courts give great deference to the government, and the process allows DOJ to communicate with the court ex parte about implicated classified information while imposing additional burdens and strict timeliness requirements on the defendant. However, courts are also sensitive to a perceived over-classification problem in our country and must be careful not to give too much deference to the government when a defendant’s right to a fair trial is at stake. At the end of the day, a “CLASSIFIED” stamp is common hearsay and subject to the same credibility concerns that make hearsay inadmissible absent a recognized exception.
Alyssa brings an instinct to advocate for those in business. A legal extraordinaire with a creative flair, Alyssa draws from her innovative mindset to create tailored solutions for clients. At BFV, Alyssa counsels clients through diverse business challenges and disputes, including business and real estate litigation and labor and employment and noncompete matters.