Trump Order Looks to Reduce Criminal Enforcement, Carves Out National Security
President Donald Trump last week signed an executive order aimed at reducing criminal enforcement of federal regulations, but it appears to carve out laws related to national security and defense.
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The order said the U.S. is “drastically overregulated” and looked to “ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists.” The Trump administration's policy should be that “criminal enforcement of criminal regulatory offenses is disfavored,” and criminal prosecution is “most appropriate” for people or entities “who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm,” the order said. “Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.”
But the order also stressed that it doesn’t “apply to the enforcement of the immigration laws or regulations promulgated to implement such laws, nor shall it apply to the enforcement of laws or regulations related to national security or defense.”
The order said the head of every federal agency should submit a list to the White House within one year of all criminal regulatory offenses enforceable by that agency or DOJ and the penalties that can be imposed for those offenses. Agencies also will be required to post that list publicly and “consider whether a criminal regulatory offense is included in an agency’s public report when considering whether to make a criminal referral” to DOJ.
The order also said all future proposed and final rules published in the Federal Register should include a statement “identifying that the rule or proposed rule is a criminal regulatory offense and the authorizing statute.” Within 45 days of the order, each federal agency should also publish guidance in the Federal Register outlining its plan to “address criminally liable regulatory offenses,” including by clarifying the circumstances in which it will refer alleged criminal violations to DOJ.