When Jefferson Beauregard Sessions was sworn in as the 84th
Attorney General of the United States in January, business owners
were among those wondering what he meant when he declared: "A
new era of justice begins, and it begins right
now." Unlike many political appointments, this member of
President Trump's cabinet's role as the nation's chief
law enforcement officer has the potential for immediate direct and
meaningful impact upon businesses, especially those in
heavily-regulated industries. What will that impact be?
President Trump won the election in part, at least, on a promise to
shrink the federal government, and to get it "off the
backs" of American business. Further, he and General Sessions
have emphasized their intention to address immigration, and
"guns and drugs" as part of a campaign promise to keep
Americans safe. Does this mean businesses can breathe a sigh of
relief and assume the Department of Justice and other regulatory
agencies will leave them alone?
Yes and no.
First, career federal lawyers within the agencies and in the
Department of Justice (and at the United States Attorneys'
Offices around the country) consider crime and regulatory
violations in their local, immediate settings and not necessarily
as a part of a broader, less specific national strategy. Two
categories of federal investigation and, in certain cases, criminal
prosecution may continue at the same – or at an even higher
– pace as in the previous administration.
Immigration: Perhaps the President's signature
campaign promise involved reducing illegal
immigration. Employers' hiring practices could come under
even greater scrutiny under Attorney General Sessions'
DOJ. In April General Sessions announced the addition of 50
more immigration judges this year, and 75 next year in a memo that
required federal prosecutors to prioritize federal criminal
immigration enforcement. Immigration authorities have long held
employers responsible for knowing the legal status of their
applicants, and it's reasonable to believe documentation and
processes will be looked at even more closely. "To ensure that
these priorities are implemented" the Attorney General said
"starting today, each U.S. Attorney's Office . .
. will designate an Assistant United States Attorney as the
Border Security Coordinator for their District." These
coordinators will be looking for work to do, and to make an
impression. (New
I-9 Form Takes Effect September 18, 2017 - What's changed and
Important Reminders to Ensure Compliance.)
False Claims Act investigations/prosecutions:
Businesses that submit claims for payment to the government, or
submit claims to others who in turn submit claims to the government
(any government contract, and some that aren't) can run afoul
of the False Claims Act ("FCA") and its fines, treble
damages, and even criminal implications. Most FCA
investigations, though, are filed first by whistleblowers –
"relators." These relators are often disgruntled
ex-employees, and there is no reason to believe there will be fewer
of them simply because there is a new President or Attorney
General. The potential financial awards to relators are high. The
DOJ will continue to gladly investigate complaints that have
merit.
EPA/Environmental: Businesses regularly under the
scrutiny of the Environmental Protection Agency ("EPA")
may, on the other hand, feel the effect of a dramatically reduced
relevant federal workforce. The DOJ depends upon the EPA to
investigate its environmental cases, and the EPA's budget has
declined from $10.3 billion in 2010 to about $8.1 billion in 2016.
Transactional Records Access Clearinghouse, affiliated with
Syracuse University, reports that EPA criminal prosecutions are
down by 50% in the past five (5) years.
The work of the DOJ and local federal prosecutors and agencies will
continue. Businesses in highly-regulated industries should continue
to consider rhetoric and high-level public statements as important
but not determinative of the relationship between their business
and the federal government.
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