Justice Department memo reveals seismic changes in how we treat illegal immigration

Amidst the tidal question of enforcement orders, statesmanlike appointments and argumentation announcements, it is casual to dainty the interim argumentation memo from the acting lawman lawyer wide arsenic conscionable different ripple of nominal alteration that occurs erstwhile Democrats regenerate Republicans oregon Republicans regenerate Democrats. But it would beryllium a superior oversight to miss the memo’s melodramatic departure from presumption quo and adjacent from the archetypal Trump administration’s presumption of national authoritative responsibilities. 

With each enactment turnover astatine the White House, a philosophical tug-of-war resumes implicit whether national prosecutors should beryllium pugnacious connected transgression oregon much "nuanced" successful their attack to punishment. That memorandum conflict started successful 1989 erstwhile Attorney General Dick Thornburgh ordered prosecutors to prosecute the "most superior and readily provable offense" and since then, the Republican AG’s consistently person encouraged seeking the decease punishment and charging mandatory minimum sentencing statutes. This latest memo is surely accordant with that approach. 

The bosom of the memo is migration enforcement. The memo emphasizes the request for the Department of Justice (DOJ) and the Department of Homeland Security ("DHS") to onslaught cartels and transnational transgression organizations, to trim convulsive transgression committed by cartels, gangs and amerciable aliens, and to unopen down the cross-border travel of fentanyl.  

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Those targets way the President Donald Trump campaign’s points of accent and travel arsenic nary surprise. Similarly, the instrumentality to the Thornburgh memo’s assertive guidance for prosecutors to complaint and prosecute "the astir superior and readily provable offense" signals an aversion to brushed plea agreements and "charge bargaining," wherever prosecutors low-ball the transgression behaviour successful a plea statement to resoluteness the case. But past it gets interesting. 

Pam Bondi is sworn successful arsenic US Attorney General by Supreme Court Justice Clarence Thomas arsenic her spouse John Wakefield and parent Patsy Bondi look connected successful the Oval Office of the White House successful Washington, DC, connected Feb. 5, 2025. (ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

The memo establishes that a prosecutor’s discretion to resoluteness a lawsuit with a softer plea is constricted to "unusual facts." It specifically mentions the appropriateness of pursuing the decease punishment and mandatory minimum sentences successful repetition offender cause and/or firearm cases. The interim lawyer wide past turns his attraction to the "Faithful Execution of the Immigration Laws," and the much measurable changes begin.  

For instance, successful announcing the precedence of pursuing migration offenses, the memo specifically includes Title 8 U.S. Code § 1325, illegal introduction by an alien. This is simply a six-month misdemeanor for simply being illegally wrong the U.S., and national prosecutors are apt to bristle astatine devoting inordinate clip to a elemental misdemeanor that could beryllium pursued, well, millions of times crossed the nation.  

Historically, U.S. Attorney’s Offices ("USAOs") with important migration issues seldom usage the misdemeanor but alternatively prosecute cases of amerciable re-entry aft removal for a felony (or better, an "aggravated felony.") These felony migration charges tin beryllium utilized arsenic leverage to flip pack members oregon astatine slightest service arsenic a existent deterrent – adding years of national imprisonment to the equation earlier the suspect is again deported to his oregon her state of origin. 

Rejecting imaginable migration cases is nary longer the elemental prerogative of the section U.S. attorney. The memo requires the authoritative to disclose declinations arsenic urgent reports straight to the lawyer general, wrong days oregon sometimes adjacent hours of the decision. No U.S. lawyer is going to beryllium anxious to repeatedly nonstop "urgent" reports to the lawyer wide astir his oregon her refusal to prosecute migration cases. This applicable deterrent enhances the powerfulness of the Department of Homeland Security – their cases are being prioritized successful each mode done this Memo. 

Similarly, national programs targeting drugs and gangs (the Organized Crime Drug Enforcement Task Force, aka "OCDETF") and Project Safe Neighborhood ("PSN") which targets guns and gangs, present person to supply resources supporting migration prosecutions. Making well-funded OCDETF units prioritize migration offenses reflects a monolithic powerfulness displacement distant from DOJ and toward Secretary Kristi Noem’s DHS. 

Not lone are the U.S. attorneys watching their investigators pivot to migration prosecutions, but the memo tasks the USAOs with investigating incidents of resisting, obstructing oregon failing to comply with lawful immigration-related commands. In short, "sanctuary" advocates oregon adjacent prosecutorial inaction are being considered fodder for imaginable transgression prosecutions.  

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Consistent with that assertive approach, the memo fleetingly mentions the DOJ’s caller instauration of a Sanctuary Cities Enforcement Working Group, which presumably exists to instrumentality ineligible enactment against inconsistent policies oregon section practices that thwart migration enforcement action. 

Like galore authorities documents, this memo buries immoderate juicy tidbits successful the footnotes. Specifically, the memo rescinds earlier memos promulgated by antiauthoritarian regimes successful 2013, 2014, 2021, and erstwhile AG Merrick Garland’s memo from December 2022.  

The memo establishes that a prosecutor’s discretion to resoluteness a lawsuit with a softer plea is constricted to "unusual facts." It specifically mentions the appropriateness of pursuing the decease punishment and mandatory minimum sentences successful repetition offender cause and/or firearm cases. 

The Garland memo was fundamentally a repudiation of the Thornburgh attack – emphasizing a much individualized attack to prosecution and urging prosecutors to question "sufficient, but not greater than necessary" punishment. Somehow, that support gaffe for mercy was wholly ignored successful the January 6 prosecutions, arsenic the authorities invariably asked for higher sentences than the already-severe seat was consenting to mete out.  

But successful galore USAOs, the Garland memo’s flexibility, specified arsenic ignoring mandatory cause sentencing but successful peculiarly aggravated circumstances and overtly permitting prosecutors to articulation the defence attorneys successful calling the cause sentencing guidelines excessively high, gave a greenish airy for section autonomy successful plea bargaining. But, arsenic they say, there’s a caller sheriff successful town. 

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It is existent that the latest memo is framed arsenic a DOJ interim policy. That could beryllium work to suggest that recently confirmed Attorney General Bondi mightiness see a antithetic approach. 

But Bondi’s archetypal announcements arsenic AG — including pausing national backing for sanctuary cities, pursuing obstruction cases against jurisdictions thwarting migration enforcement laws, and evaluating nongovernmental enactment ("NGO") enactment of amerciable aliens for defunding oregon adjacent prosecution — corroborate that the policies and sentiment down her predecessor’s memo are present to stay.

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