President Trump Issues Executive Order in Final Days of Presidency, “Protecting Americans From Overcriminalization”
In his second-to-last day as President of the United State, Donald Trump signed an executive order intended to limit the government’s ability to criminally prosecute those in violation of certain regulations. The thrust of the Executive Order is to clarify when a violation of a regulation may result in criminal liability, and to generally limit the application of strict criminal liability in executive-promulgated regulations. At the same time, the Executive Order maintains the possibility of criminal prosecution for the “most culpable individuals.”
The Executive Order creates a new policy, consisting of three parts:
- All agencies that pass regulations including the possibility of criminal prosecution should make the “mens rea” element of the offense clear, and must also explain which conduct covered under the regulation subjects a potential defendant to criminal liability.
- All agencies should avoid imposing strict criminal liability, where possible, and should instead consider “administrative or civil enforcement of strict liability regulatory offenses”; and
- All agencies should focus their criminal enforcement efforts on those who “know what is prohibited or required by the regulation and choose not to comply,” and limit criminal prosecution to those who had actual or constructive knowledge of the prohibited conduct.
The Executive order also sets forth a specific protocol that agencies should follow when creating notices of proposed rulemaking (NPRM).
- All NPRM should include a statement indicating whether someone who violates the statute could face criminal penalties;
- The text of NPRM should explicitly state the mens rea requirement for each provision, and specifically indicate any provision containing a strict-liability offense.
- Any reference to a criminal penalty should be accompanied by a citation to the relevant authority authorizing criminal liability.
- Any agency submitting an NPRM containing a regulatory offense that is not named in the authorizing statute and may subject a violator to potential criminal liability with no mens rea requirement (or a regulatory offense including an element without a mens rea requirement) should submit justification for the use of strict liability, as well as the source of the agency’s authority to the Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget
The Executive order also explains that all agencies should provide guidance on its plan on how it plans to address regulatory offenses that may result in criminal liability, rather than referring these matters to the Department of Justice for criminal prosecution. Such guidance should include the following:
- The risk of harm posed by the conduct;
- Any potential gain defendant could receive from the offense;
- Whether the defendant has any specialized knowledge or expertise, or maintains a related license; and
- Any evidence of the defendant’s knowledge of the regulation.
The President’s concern is clearly based on the overprosecution of regulations. The Executive Order, provided it remains intact once President-Elect Biden assumes the Presidency, will go a long way towards making the possibility of criminal liability related to the violation of a federal regulation much clearer.
When the Executive Order uses to the term “mens rea,” it is referring to the knowledge, or intent, element of an offense. For the vast majority offenses that can result in criminal liability, there are two elements: the actus reus (the act) element and the mens rea element (the intent).
Typically, when someone commits the “act” of an offense, they can only be found guilty if they also possessed the requisite mens rea. In criminal law, this is often “knowing,” “willful,” or “intentional.” Although, some crimes allow prosecution based on recklessness.
However, the exception is for strict liability offenses. A strict liability offense does not have a mens rea element, and the commission of the prohibited act is sufficient to find someone who commits the act guilty of the charged offense. Notably, just because a statute does not list a mens rea requirement does not mean that it is a strict liability offense. Courts will occasionally “read in” a mens rea element, depending on the statute, its legislative intent, and the type of conduct it was designed to prevent.
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Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.