On September 25, 2018, the Department of Justice (DOJ) announced the rollout of an updated U.S. Attorneys’ Manual. In announcing the new manual, Deputy Attorney General Rod Rosenstein said this was “the first comprehensive review and overhaul of the Manual in more than 20 years.” Indeed, the manual has even been renamed the Justice Manual, which Rosenstein noted was part of a larger effort to expand the manual’s applicability beyond the U.S. Attorneys’ Offices. He explained that these revisions were to bring the manual up to date with current law and DOJ practice.
The department made some meaningful changes to the manual, albeit through the incorporation of department memoranda. This process in and of itself is not new—earlier versions of the manual also included the core principles of various department memoranda. Nevertheless, the following six updates to the manual could have lasting impact.
- The inclusion of the Yates Memo. On September 9, 2015, former Deputy Attorney General Sally Yates authored a memorandum on corporate prosecution (the “Yates Memo”). The Yates Memo was a landmark policy premised on the idea that individual accountability was one of the most effective ways to deter corporate crime. The core principles of the memorandum were incorporated into the manual in November 2015. Rosenstein announced in 2017, however, that the Yates Memo was “under review,” leading some to believe that any updated manual would rescind or revise the Yates Memo’s previous guidance on individual accountability. While the provisions related to the Yates Memo were not changed in the September update, Rosenstein recently announced that the department will be modifying this corporate-enforcement policy. The department’s policy under the Yates Memo was that corporations “must provide to the department all relevant facts about the individuals involved in [criminal] corporate misconduct” to qualify for any cooperation credit. Now, as Rosenstein explained in his announcement, the department will no longer require companies seeking cooperation credit to identify every individual involved in the criminal conduct due to “concerns raised about the inefficiency of requiring companies to identify every employee involved regardless of relative culpability.” Instead, the department will only require cooperating companies to reveal those individuals who were “substantially involved in or responsible for the criminal conduct.” While this could be considered a major revision to existing policy, Rosenstein also stated that the department will remain committed to the principles of individual accountability, which indicates that the department does not plan to completely repeal the Yates Memo.
- The incorporation of the Granston Memo. On January 10, 2018, the director of the Civil Fraud Section, Michael Granston, issued a memorandum in response to record increases in whistleblower actions (the “Granston Memo”). The Granston Memo provided a seven-factor list to assist prosecutors in dismissing meritless qui tam actions, which the Justice Manual includes almost verbatim at section 4-4.111. Additionally, the manual adopts the core principle behind the Granston Memo, stating that “[w]hile it is important to be judicious in [dismissing qui tam actions], such dismissals also provide an important tool to advance the government’s interests, preserve limited resources, and avoid adverse precedent.”
- The inclusion of the June 2017 Sessions Memo. On June 5, 2017, Attorney General Jeff Sessions issued a memorandum prohibiting settlement payments to third parties. The memorandum advised department attorneys not to enter into any settlement agreement “that directs or provides for a payment to any non-governmental person or entity that is not a party to the dispute,” with the exception of three specific situations. The memorandum was added to the manual in April 2018 so it is not a completely new directive. However, its inclusion in the Justice Manual at section 1-17.000 emphasizes the department’s commitment to this approach under the new administration.
- The inclusion of long-standing DOJ settlement practices. Other provisions regarding settlement practices were also added to the manual in April 2018. While the provisions do not represent a dramatic shift in policy, their inclusion in the Justice Manual from section 1-18.100 through 1-18.400 highlight the department’s stance on non-negotiation of press releases and transparency in settlements. Companies—and their defense counsel—should be aware of two key settlement principles going forward: (1) the department will generally continue to decline to enter settlement agreements or consent decrees that are subject to confidentiality provisions, and (2) the department will continue to unilaterally decide if and when a settlement press release will be issued—with no prior review by other parties to litigation allowed.
- The inclusion of the May 2017 Sessions Memo. Sessions also issued a May 10, 2017, memorandum that established the department’s charging and sentencing policy. The provisions of this memorandum were incorporated prior to the rollout of the Justice Manual, but their inclusion at section 9-27.300 emphasizes the department’s policy shift under the new administration to charge the “most serious, readily provable offense[s]” possible. Prosecutors must begin at that level of assessment, and only then are they permitted to consider whether an exception to “strict application of the  charging policy” is justified. This is dramatically different than the January 2017 version of section 9‑27.300, which did not require government attorneys to begin their analysis with the most serious, readily provable offense. Under the January 2017 version, prosecutors were instructed to “select charges based on an individualized assessment of the extent to which particular charges fit the specific facts and circumstances of the case, are consistent with the purposes of the federal criminal code, and maximize the impact of federal resources on crime.”
- The inclusion of the Rosenstein Memo. On May 9, 2018, Rosenstein issued a memorandum regarding the department’s policy on coordination of corporate resolution penalties (the “Rosenstein Memo”). The manual first incorporated the principles of the Rosenstein Memo in May 2018. Its continued inclusion in the Justice Manual at sectopm 1-12.100 demonstrates the department’s continued commitment to avoid piling on “duplicative fines, penalties, and/or forfeiture” against a company.
- The exclusion of the Brand Memo. Interestingly, amidst all of the aforementioned additions, the January 25, 2018, memorandum from Associate Attorney General Rachel Brand (the “Brand Memo”) was not incorporated into the Justice Manual. The Brand Memo limited reliance on agency guidance by outlining new policies for cases in which an executive agency previously issued relevant non-binding guidance. Given Rosenstein’s explanation that the revisions of the Justice Manual were to bring the manual up to date with current law and department practice, it is unclear whether the Brand Memo still reflects DOJ policy.
In an October 2017 keynote address to New York University, Deputy Attorney General Rosenstein expressed his desire to streamline policy guidance into a single compilation. The revised Justice Manual is indicative of the goal to simplify and consolidate DOJ policy. Worth monitoring is whether the policies espoused in the Brand Memo and the Yates Memo will continue to guide the department’s practice or if they will fade into obsolescence.