Summary

On September 25, DOJ announced the rollout of the Justice Manual, a new US Attorney’s Manual. Though the manual is an internal document that does not carry the force of law, it provides guidance to DOJ employees for investigative, charging and sentencing decisions. This apparent effort to consolidate DOJ policies into a comprehensive location marks the first major rewrite of the US Attorney’s Manual in more than 20 years.

On September 25, 2018, the US Department of Justice (DOJ) announced a rollout of a new US Attorney’s Manual, now called the Justice Manual. The Justice Manual is a document that contains the major DOJ policies and procedures pertaining to the investigation, litigation and prosecution of violations of federal law. For decades, it has been a resource for Assistant United States Attorneys, DOJ trial attorneys and other DOJ employees to help them carry out their jobs. It is an internal document that does not have the force and effect of law. Nonetheless, it is an important document, as it guides investigative, charging and sentencing decisions of DOJ employees across the country. Last week’s rollout of the new Justice Manual reflects the first major rewrite of the United States Attorneys’ Manual in more than 20 years, seemingly in an effort to consolidate DOJ policies into one location.

In DOJ’s press release announcing the new Justice Manual, Deputy Attorney General Rod Rosenstein noted that “[t]hough the name has changed, the Manual will continue as a valuable means of improving efficiency, promoting consistency, and ensuring that applicable Department policies remain readily available to all employees as they carry out the Department’s vital mission.” Rosenstein had previously expressed a desire to update the US Attorneys’ Manual. In an October 6, 2017 speech at New York University, he explained that DOJ’s policies are “spread among various sources” including the US Attorneys’ Manual, DOJ memoranda, and speeches and articles interpreting policies. He expressed his “administrative goal[]” of streamlining DOJ policies into a single Manual and limiting the use of memoranda to announce new policy. In his speech he explained, “[w]hen we issue new policies, they will be primarily in the form of updates to the Manual. Memos generally should be brief cover memos and commentary, not freestanding policy statements.”

The overhaul of the US Attorney’s Manual furthers Rosenstein’s goal of incorporating all major DOJ policy statements into one document. For the most part, the Manual does not contain many surprises. It makes stylistic, but not substantive, changes to some long-standing provisions and ensures that some other DOJ practices are captured in one place. Nonetheless, the Manual does contain several noteworthy provisions, many of which were added in 2018 as DOJ was in the process of updating the Manual.

First, the Manual now includes the principles set forth in the “Granston Memorandum” an important memorandum for all companies that must deal with the risk of False Claims Act (FCA) litigation. In January 2018, DOJ’s Civil Division issued the Granston Memorandum, authored by Michael Granston, director of the Civil Division’s Fraud Section. The Granston Memorandum outlines seven circumstances under which the United States should seek dismissal of qui tam FCA cases that “lack substantial merit.” While the Justice Manual does not adopt the memorandum word for word, it does incorporate the fundamental principles outlined in the memorandum, e.g., noting that “dismissals [of qui tam cases] provide an important tool to advance the government’s interests, preserve limited resources, and avoid adverse precedent,” and providing the non-exhaustive list of factors that can serve as a basis for dismissal, including—among other things—curbing meritless suits, preventing “parasitic or opportunistic” suits and safeguarding classified information and national security interests.

Second, the Manual includes provisions regarding non-negotiation of press releases and transparency in settlements. These provisions are not new. They were first added in April 2018 and, even then, merely incorporated long-standing DOJ practices. Nonetheless, they are important provisions for anyone who settles litigation with DOJ. Under these provisions, DOJ will generally not enter into final settlement agreements or consent decrees that are subject to confidentiality provisions. It also will not concur in the sealing of such documents. In addition, as the Manual now makes clear, DOJ will not allow other parties to review press releases before it issues them. What all of this means is simple: even if a party settles a case without admitting liability, DOJ may publicize the matter, and there may be very little the party can do about it.

Third, the Manual incorporates recent updates to other familiar provisions. It includes guidance to DOJ attorneys to avoid “piling on” by seeking excessive and duplicative fines, penalties and/or forfeitures against the subjects of an investigation or defendants in a lawsuit. The policy reminds attorneys of their ethical obligation not to use criminal enforcement authority unfairly to extract, or to attempt to extract, additional civil or administrative monetary payments, and encourages them to consider the interests of justice in coordinating with other enforcement components or entities. The Manual also updates guidelines for seeking settlement approval from the Deputy Attorney General where resolution of the matter involves monetary components totaling $200 million or more, raises important, sensitive or novel legal questions, or imposes a novel, sensitive or unusually extensive conduct remedy or injunctive measure.

Fourth, the Manual reflects numerous revisions to the Principles of Federal Prosecution chapter (Title 9, Chapter 27), which were put into place in January and February of this year. Of particular note, the revised principles reflect a greater emphasis on the interests of victims, directing prosecutors to consider impacts on victims when making charging, plea and sentencing decisions. The Manual also reflects Attorney General Jeff Sessions’s directive that prosecutors “charge and pursue the most serious, readily provable offenses” based on sentencing guidelines, including mandatory minimum sentences.

While these updates are noteworthy, what is perhaps most interesting about the Justice Manual is what it has left untouched. For example, although Rosenstein has discussed potential updates to the guidance set forth in the “Yates Memorandum” in speeches discussing the US Attorney Manual revamp, the Justice Manual does not materially change the guidance set forth in the Yates Memorandum or Principles of Federal Prosecution of Business Organizations (Title 9, Chapter 28). The Yates Memorandum was incorporated in to the US Attorneys’ Manual in November 2015. Authored by then-Deputy Attorney General Sally Yates, the Yates Memorandum signaled a shift toward increased enforcement actions against individuals, and the newly published Justice Manual maintains that emphasis. The Principles of Federal Prosecution of Business Organizations chapter was updated briefly in November 2017, to amend the guidance on the value of cooperation, including the disclosure of relevant facts, and again in May 2018, to reflect new civil or regulatory alternatives to criminal prosecution. The remainder of the chapter has been unchanged since November 2015.

There is one recent DOJ policy memoranda, however, that is noticeably absent from the Justice Manual: the Brand Memorandum. In January 2018, then-Associate Attorney General Rachel Brand issued a memorandum that bars DOJ from using its civil enforcement authority to transform agency guidance documents into binding rules. As the memorandum states, “[DOJ] litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable laws in [affirmative civil action] cases.” Although not formalized in the Manual, the Justice Manual also does not repudiate or reverse this guidance. What remains to be seen is whether the Brand Memorandum will continue to influence civil enforcement decision-making and, if so, why it was excluded from a document intended to be a comprehensive manual for all DOJ attorneys.