As Donald Trump has now been inaugurated as the 45th President of the United States, one of the questions we are asked concerns the likely direction the Trump administration will pursue concerning regulatory/criminal enforcement. Although agency heads and lower-level officers have barely begun to be appointed, early evidence suggests that the Yates Memo and its priorities will continue to hold sway. This is largely unsurprising, including because large scale changes in enforcement policies tend to happen slowly.
The original Yates Memo, prepared by and named for Deputy Attorney General Sally Yates, was promulgated in 2015. The Yates Memo set forth priorities for the Department of Justice, including a focus on prosecution of individuals as a means to address (and potentially deter) corporate wrongdoing. This pursuit of individual accountability has been alternately argued to be a new priority and an extension of prior objectives.
In public presentations, including following the election, Yates has indicated optimism that the priorities laid out in her memorandum will be continued under a Trump administration, because such priorities are not “ideological” but rather represent “a core value of our criminal justice system that perseveres regardless of which party is in power.” In short, matters that have been under investigation for a long time are likely to be pursued under the same guidelines.
More generally, President Trump made anti-corruption efforts a cornerstone of his campaign. While most of these comments were directed at cleaning up perceived corruption in Washington (i.e. Trump’s “Drain the swamp” pledge), tough measures on corporate malfeasance may play well with some of his supporters. Furthermore, Senator Jeff Sessions, whose confirmation as Attorney General is expected to move forward in the coming weeks, is a former prosecutor. While many commentators have noted that Sessions may continue an aggressive approach to law enforcement if confirmed, predictions are mixed as to whether that will apply in the white collar arena.
As such, companies and their directors and officers should not expect any notable or quick reduction in investigations and prosecutions under a Sessions-led Department of Justice, nor under a Trump administration generally.