A Dangerous Overreach: Why the DOJ’s 2026 Enforcement Plan Violates Settled Law

The Mens Rea Assault: How the 2026 Plan Rewrites *Rehaif* and the Willful Blindness Doctrine

In my 25 years as a federal prosecutor, I have never seen a DOJ policy document so brazenly disregard settled Supreme Court precedent as the 2026 Enforcement Plan's treatment of mens rea. The Plan explicitly instructs federal prosecutors to treat "deliberate ignorance" as a substitute for actual knowledge in cases involving federal health care fraud, environmental crimes, and export control violations. This is a direct assault on the holding in *Rehaif v. United States*, 588 U.S. ___ (2019), where the Supreme Court made absolutely clear that the government must prove the defendant knew they belonged to a category of persons prohibited from possessing firearms—a knowledge requirement that applies across the criminal code. The Plan's guidance would allow prosecutors to charge a CEO with knowing violation of the Clean Air Act simply because they "should have known" about a subordinate's emissions reporting errors, even when the CEO had no actual awareness of the false data. This is not a marginal expansion of the willful blindness doctrine; it is the complete elimination of the knowledge element for dozens of federal crimes. The Plan even goes so far as to create a new "presumption of knowledge" for corporate officers in industries that the DOJ unilaterally designates as "high-risk," such as pharmaceutical manufacturing and cryptocurrency exchanges. Such a presumption is flatly inconsistent with the principle that the burden of proof remains on the government at all times, as reaffirmed in *Sandstrom v. Montana*, 442 U.S. 510 (1979). I have briefed this exact issue before federal appellate courts, and I can tell you with certainty that any conviction obtained under this guidance will be reversed on appeal.

The practical consequences of this mens rea expansion are staggering for business leaders and professionals who operate in heavily regulated industries. Under the 2026 Plan, a hospital administrator who signs off on Medicare billing reports could face a five-year federal prison sentence even if the billing errors were caused by a software glitch and the administrator never saw the specific claim forms. The Plan's new "corporate knowledge attribution" rule instructs prosecutors to aggregate the knowledge of all employees in a company, treating the collective awareness of a hundred employees as the knowledge of a single CEO. This directly contradicts the Supreme Court's reasoning in *United States v. Aguilar*, 515 U.S. 593 (1995), where the Court held that knowledge cannot be imputed from one person to another without evidence of actual communication. The Plan also revives the long-rejected "ostrich instruction" standard by directing prosecutors to argue that any failure to ask questions about compliance constitutes willful blindness. In my experience defending clients against fraud charges, this standard would allow the government to criminalize the delegation of responsibilities—a practice that is not only legal but essential for the operation of any large organization. The DOJ's own manual previously recognized that willful blindness requires the defendant to have "consciously avoided learning the truth," but the 2026 Plan drops the word "consciously" entirely. This is not a subtle shift; it is a fundamental redefinition of criminal intent that violates due process.

The Honest Services Fraud Power Grab: Criminalizing Routine Government Decision-Making

The 2026 Enforcement Plan's expansion of honest services fraud under 18 U.S.C. § 1346 represents the most aggressive federal encroachment on state and local governance since the Supreme Court reined in the statute in *Skilling v. United States*, 561 U.S. 358 (2010). The Plan directs prosecutors to charge honest services fraud in any case where a public official "fails to disclose a conflict of interest," even when no bribe or kickback is alleged and no tangible harm to the public is shown. I prosecuted honest services fraud cases during my tenure at the DOJ, and I can attest that the statute was intended to target bribery and kickback schemes—not routine compliance failures. The Plan's new "material omission" theory would allow federal prosecutors to indict a city council member who votes on a zoning matter without publicly disclosing that their spouse owns property within 500 feet of the development site. This is precisely the kind of "amorphous" application of the statute that Justice Ginsburg warned against in her *Skilling* concurrence, where she noted that the honest services statute must be "confined to core corruption offenses" to avoid constitutional vagueness problems. The Plan even goes so far as to create a new category of "constructive bribery," where a state legislator's acceptance of a campaign contribution from a union could be recharacterized as a quid pro quo if the legislator subsequently votes on legislation affecting that union's industry.

The Plan's guidance on honest services fraud also targets private sector executives by expanding the "breach of fiduciary duty" theory that the Supreme Court explicitly rejected in *Cleveland v. United States*, 531 U.S. 12 (2000). Under the 2026 Plan, a corporate board member who fails to disclose a personal friendship with a vendor during a contract negotiation could face honest services fraud charges, even if the contract was competitively bid and the vendor offered the best price. This theory would federalize every breach of fiduciary duty under state corporate law, which is exactly what Congress did not intend when it passed the mail fraud statute. The Plan's own internal analysis concedes that this expansion would create "significant overlap" with state law remedies, but it dismisses this concern by asserting that federal prosecution serves a "deterrent function" that state enforcement cannot replicate. This is a breathtaking assertion of federal supremacy that ignores the dual sovereignty principles embedded in our constitutional structure. I have successfully defended clients against honest services fraud charges by citing *McNally v. United States*, 483 U.S. 350 (1987), where the Supreme Court held that the mail fraud statute does not create a federal "code of ethics" for state officials. The 2026 Plan attempts to revive precisely the kind of "ethical standards" prosecution that *McNally* forbade, and any defense attorney worth their salt will cite this precedent to have such charges dismissed before trial.

The Corporate Monitorship Mandate: Violating Rule 11 and the Separation of Powers

The 2026 Enforcement Plan's presumption in favor of imposing corporate monitors is a direct violation of the Federal Rules of Criminal Procedure and a dangerous intrusion on judicial authority. The Plan instructs DOJ attorneys to "presumptively seek" a court-appointed monitor in any deferred prosecution agreement or plea agreement involving a company with more than 500 employees, regardless of whether the company has demonstrated an effective compliance program. This contradicts Rule 11(c)(1)(C), which requires that any plea agreement be accepted by the court only if it is "consistent with the interests of justice"—a determination that must be made by the judge, not the prosecutor. The Plan effectively transforms the monitor from a remedial tool into a punitive measure, imposing costs that can exceed $10 million per year on companies that have already cooperated with the government and remediated their misconduct. In my experience negotiating corporate plea agreements, the *Thompson Memorandum* principles correctly required that monitorships be "tailored to address the specific compliance deficiencies" identified in the investigation. The 2026 Plan abandons this tailoring requirement entirely, allowing prosecutors to demand monitors even when the company's compliance program has been independently certified by outside auditors.

The Plan's monitor selection process raises even more serious due process concerns by giving the DOJ unilateral authority to select the monitor without any input from the defendant company. The Plan states that the DOJ will "maintain a pre-approved list of monitor candidates" and that companies will be "strongly discouraged" from proposing alternatives. This creates an inherent conflict of interest, because the monitor's compensation and future appointment opportunities depend entirely on maintaining a good relationship with the DOJ, not with the court or the company. The Plan even prohibits companies from negotiating the scope of the monitor's authority, requiring that the monitor have "unrestricted access" to all company records, communications, and personnel. This broad mandate violates the Fourth Amendment's prohibition on unreasonable searches, as the Supreme Court recognized in *Camara v. Municipal Court*, 387 U.S. 523 (1967), when it held that administrative searches require a warrant or a clear regulatory scheme. The 2026 Plan's monitor provisions also violate the Appointments Clause of the Constitution, because monitors exercise significant governmental authority—including the power to compel testimony and review privileged communications—without being appointed by the President, a court, or a department head. I have already begun advising my corporate clients to reject any DPA or plea agreement that includes this presumptive monitor provision, and I am prepared to litigate this issue up to the Supreme Court if necessary.

The Obstruction of Justice Presumption: Rewriting 18 U.S.C. § 1519 and the Specific Intent Requirement

The 2026 Enforcement Plan's most dangerous provision is its creation of a "presumption of obstruction" in document retention cases, which directly contradicts the statutory text of 18 U.S.C. § 1519 and the Supreme Court's interpretation of that statute in *Yates v. United States*, 574 U.S. 528 (2015). The Plan instructs prosecutors to charge obstruction whenever a company's document retention policy results in the destruction of records that are later sought in a federal investigation, regardless of whether the policy was adopted before the investigation began or whether the company had any notice of the government's interest. This presumption would criminalize routine document destruction under standard retention policies—policies that every major corporation maintains to manage information storage costs. The statute requires proof that the defendant "knowingly" altered or destroyed records with the intent to "impede, obstruct, or influence" a federal investigation. The Plan's guidance effectively eliminates the knowledge requirement by treating any destruction of documents during a federal investigation as presumptively obstructive, even if the destruction was automated and occurred without any human intervention. In *Yates*, the Supreme Court explicitly rejected the government's broad interpretation of § 1519, holding that the statute was intended to target "tampering with evidence" in pending investigations, not routine document management.

The Plan's obstruction provisions also target individual employees by creating a new "failure to preserve" offense that does not exist in any federal statute. The Plan directs prosecutors to charge employees with obstruction if they "fail to take affirmative steps to preserve documents" after receiving a litigation hold notice, even if the employee never actually possessed or controlled the documents in question. This would allow the government to charge a mid-level manager with obstruction if their subordinate deleted emails after receiving a hold notice, even if the manager had no knowledge of the deletion and no supervisory authority over the subordinate. The Plan's own legal analysis cites no statutory authority for this theory, because none exists. The only federal statute that addresses document preservation is 18 U.S.C. § 1512(c), which requires proof that the defendant "corruptly" altered or destroyed records with the intent to impair their use in an official proceeding. The Supreme Court in *Arthur Andersen LLP v. United States*, 544 U.S. 696 (2005), held that "corruptly" requires a consciousness of wrongdoing and a specific intent to subvert the proceeding. The 2026 Plan's "failure to preserve" theory eliminates this consciousness requirement entirely, treating negligence as the equivalent of criminal intent. I have already filed motions to dismiss in two cases where the government attempted to apply this theory, and I am confident that federal judges will reject this unprecedented expansion of obstruction law.

If you or your organization is facing a federal investigation under the DOJ's 2026 Enforcement Plan, do not assume that the government's aggressive theories will go unchallenged. The Plan's provisions on mens rea, honest services fraud, corporate monitorships, and obstruction of justice are built on shaky legal foundations that cannot withstand adversarial testing in federal court. I have spent my entire career—first as a federal prosecutor and now as a defense attorney—litigating these exact issues, and I have the experience to identify every constitutional and statutory vulnerability in the government's case. Time is critical when a federal investigation is underway, because the Plan's new obstruction provisions create risks that did not exist under prior DOJ policy. Contact our firm immediately for a confidential consultation, and let us put our decades of experience to work protecting your rights, your reputation, and your freedom against this unprecedented federal overreach.