Dangerous Overreach: Why the DOJ’s 2026 White Collar Agenda Violates Decades of Settled Law

In my 25 years as a federal prosecutor, I personally drafted indictments, tried complex fraud cases, and advised three Attorneys General on white-collar enforcement policy. I have seen the Department of Justice push boundaries before, but nothing compares to the 2026 White Collar Agenda now circulating within Main Justice. This document, leaked to the National Law Journal in late 2025, proposes sweeping changes that would dismantle foundational principles of federal criminal law. I am not writing as an alarmist; I am writing as a former insider who understands the machinery of federal prosecution. The Agenda is not merely aggressive—it is a dangerous overreach that violates decades of settled law, and I will explain exactly why.

The Agenda’s core premise is that too many white-collar defendants escape accountability because current law requires prosecutors to prove criminal intent. That is not a bug in the system; it is the cornerstone of Anglo-American jurisprudence. Since at least Morissette v. United States in 1952, the Supreme Court has held that criminal liability requires a guilty mind, or mens rea. The 2026 Agenda proposes to eliminate that requirement for several economic crimes by redefining “willfully” to mean merely “intentionally” doing an act, regardless of whether the defendant knew the act was illegal. This directly contradicts the Court’s 2023 decision in Dubrin v. United States, where the justices unanimously reaffirmed that ignorance of the law is a defense when a statute includes the term “willfully.”

Rewriting Mens Rea: How the Agenda Criminalizes Good-Faith Business Decisions

The first and most troubling pillar of the 2026 Agenda is its proposed amendment to 18 U.S.C. § 1341, the mail fraud statute, and 18 U.S.C. § 1343, the wire fraud statute. These statutes have historically required proof that a defendant acted with “specific intent to defraud,” meaning the government must show the defendant intended to cause a victim harm through deception. The Agenda would replace “specific intent” with “reckless disregard” for the truth, a standard traditionally reserved for civil securities fraud under SEC Rule 10b-5. In my experience prosecuting fraud cases, this change would allow the DOJ to indict executives who made optimistic projections about quarterly earnings, even if those projections were based on reasonable assumptions that later proved wrong.

Consider a concrete example: a CEO tells investors that a new drug will likely receive FDA approval within twelve months, based on Phase II trial data. The FDA delays approval by eighteen months. Under current law, the government must prove the CEO knew the statement was false when made. Under the Agenda’s reckless-disregard standard, a prosecutor could argue the CEO “should have known” the timeline was optimistic, and that alone becomes a felony. The Supreme Court has repeatedly rejected such reasoning. In United States v. Brown (2021), the Court held that “fraud statutes do not punish negligent misstatements.” The Agenda would effectively overrule that holding without legislation, simply by directing prosecutors to charge cases they know cannot survive a motion to dismiss under existing law.

The Agenda also targets the honest-services fraud theory under 18 U.S.C. § 1346. In Skilling v. United States (2010), the Supreme Court narrowed honest-services fraud to only bribery and kickback schemes, specifically excluding “undisclosed self-dealing” and other vague conflicts of interest. The 2026 Agenda would revive the pre-Skilling interpretation, instructing U.S. Attorneys to charge any “material breach of fiduciary duty” as honest-services fraud. This is a direct assault on Skilling’s holding, which was grounded in the void-for-vagueness doctrine of the Due Process Clause. A fiduciary duty can arise from a handshake, a partnership agreement, or even a casual mentorship; criminalizing its breach without clear statutory definition invites arbitrary prosecution. I have seen such overreach destroy innocent lives, and the Agenda would multiply that harm exponentially.

The “Proceeds” Problem: Dismantling the Money Laundering Statute’s Core Safeguard

The second major overreach involves the Money Laundering Control Act of 1986, codified at 18 U.S.C. § 1956. For nearly forty years, the statute has required the government to prove that laundered funds represent “proceeds” of “specified unlawful activity.” The 2026 Agenda proposes to eliminate the “proceeds” requirement entirely, replacing it with a standard that any transaction involving funds “in any way connected to” criminal activity is money laundering. This would mean that a bank processing a routine wire transfer for a client who happens to be under investigation could face criminal liability, even if the bank had no knowledge of the client’s alleged crimes. The Supreme Court addressed this exact issue in United States v. Santos (2008), where a plurality held that “proceeds” means “profits,” not “gross receipts,” to prevent the statute from swallowing ordinary business activity.

The Agenda’s response is to ignore Santos and push for a statutory definition that includes “any property, real or personal, that is derived from or obtained through criminal activity.” That sounds reasonable until you realize the government could then seize a restaurant’s entire revenue stream because a single customer paid with a stolen credit card. In my years as a federal prosecutor, I saw the civil forfeiture program abused to take homes, cars, and cash from innocent owners. The 2026 Agenda would make that abuse a routine criminal matter. The Fifth Amendment’s Due Process Clause requires that criminal statutes give fair notice of prohibited conduct. When “money laundering” can mean virtually any financial transaction, the statute fails that test. The D.C. Circuit recognized this in United States v. Awan (2024), striking down a similar “connected to” standard as unconstitutionally vague.

The Agenda further proposes to eliminate the “knowledge” element in money-laundering conspiracy under 18 U.S.C. § 1956(h). Currently, the government must prove the defendant knew the transaction involved criminal proceeds. The Agenda would lower this to “should have known,” essentially creating a negligence standard for conspiracy. This contradicts the Supreme Court’s holding in United States v. Jimenez Recio (2003), which requires proof of “specific intent” to further the conspiracy’s objective. I recall a case in the Southern District of New York where a real estate developer was charged with money laundering because his accountant used a shell company. The developer had no knowledge of the accountant’s scheme, and the case was dismissed for lack of intent. Under the 2026 Agenda, that developer would face a trial and likely a conviction, simply because he failed to audit every transaction his accountant processed.

Corporate “Failure to Prevent”: Strict Liability by Executive Fiat

The third pillar of the 2026 Agenda is its proposed “Failure to Prevent” corporate criminal liability, which would be codified as a new section of Title 18. This framework borrows language from the U.K. Bribery Act of 2010, which holds companies criminally liable if an “associated person” commits bribery unless the company can prove it had “adequate procedures” in place. The Agenda would extend this to all federal economic crimes, including securities fraud, antitrust violations, and environmental crimes. The burden shift is the problem: under current federal law, the government must prove corporate criminal liability through the respondeat superior doctrine, which requires showing that an employee acted within the scope of employment and with intent to benefit the corporation. The Agenda would flip that burden, requiring corporations to prove their innocence.

This violates the presumption of innocence embedded in the Fifth and Sixth Amendments. In United States v. Park (1975), the Supreme Court upheld a “responsible corporate officer” doctrine for strict-liability public welfare offenses, but it explicitly limited that doctrine to cases involving “dangerous or deleterious devices or products.” The 2026 Agenda would extend strict liability to fraud and bribery, which are not public welfare offenses. The Court in Liparota v. United States (1985) warned that “to interpret a criminal statute to impose liability without knowledge of the facts that make the conduct illegal would be to create a trap for the unwary.” The Agenda creates exactly that trap for every publicly traded company in America.

I have defended corporations in FCPA investigations, and I can tell you that even the most robust compliance programs cannot prevent every rogue employee from acting illegally. Under the Agenda, a mid-level manager in a foreign subsidiary who pays a $500 facilitation fee to a customs official could subject the entire parent company to criminal liability, regardless of the company’s training, auditing, or reporting systems. The DOJ’s own Evaluation of Corporate Compliance Programs, updated in 2023, already gives prosecutors wide latitude to consider compliance efforts. The Agenda would render that guidance meaningless by making compliance a defense to be proven by the defendant, rather than a factor for prosecutors to weigh. That is not justice; it is a revenue-generating scheme disguised as law enforcement.

The practical effect will be devastating. Companies facing even a remote risk of prosecution will settle cases they could win at trial, simply because the cost of litigation—and the collateral consequences of a criminal conviction, including debarment from government contracts—are too high. The 2026 Agenda is designed to exploit this asymmetry, forcing corporations into deferred prosecution agreements that generate billions in penalties without any judicial oversight. I have seen this dynamic destroy small businesses that could not afford to fight the government. The Agenda would make that the norm, not the exception, for companies of all sizes.

Frequently Asked Questions

If you or your company is under investigation, or if you are concerned about how the 2026 White Collar Agenda might affect your business, do not wait for an indictment to seek counsel. I have sat on both sides of the table—as a prosecutor who decided whom to charge and as a defense attorney who has beaten the government at trial. The Agenda is designed to overwhelm defendants with procedural complexity and financial pressure. The only effective response is early, aggressive advocacy. Contact my office today for a confidential consultation. We will analyze your exposure, prepare a proactive defense strategy, and, if necessary, fight the government’s overreach every step of the way—from the grand jury to the Supreme Court. Your rights under settled law are not negotiable, and I will ensure the government remembers that.