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In March 2026, the Justice Department of the United States distributed a revised policy document: Corporate Enforcement and Voluntary Self-Disclosure Policy.
By the admission in the text of the document itself. it constitute one of a number of documents in the galaxy of text that purports to be functionally regulatory but that at the same time vigorous denies its own purpose and existence ("This policy is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person." Ibid., note 1). It is a textual object that denies its own text and in the denial, projected outward to its targets, reinforces its textual objectivity through effect rather than through the force of its text. That is it is text mediated by and through the techno.bureaucrats which, within their apparatus, and authorized through the projection of other text, can exercise a discretion to do or not do things or take decisions which affect the objects toward which the guidance on discretionary decision making is projected.
This policy that is not law, this guidance that has no formal effect, on those to whom it is directed (the techno-bureaucrats) but effectively serves as notice of the probability that it will play a role in the way in which these techno-bureaucrats exercise discretion (and are thus protected against claims of abuse of administrative power in decision making) by those onto whom it is projected (the actors or processes with respect to which discretionary authority may be exercised in accordance with authoritative task delegating such authority). That, of course, is the essence of the framework of legality around which a complex and sophisticated techno-bureaucracy is constituted. It is one in which law itself is reduced to delegations of empowerment, and in which the levers of policy and guidance (without the effect of law) can be used to guide the application of legally constituted power by those onto whom such authority is vested. The administrative state, then, clothed in legality, is operated through webs of policy/guidance, that are not law but have the effect of law not as a positive force but as a prophylactic against accountability with respect to actions taken under color of law.
In this case, the focus is on the exercise of prosecutorial discretion. The purpose is to induce behaviors among the class of persons and transactions against which prosecutorial discretion is exercised without the bother of mandating these behaviors through law or law making (subject to its own constraints and democratic accountability), that effectively compel behavior that the law does not technically require. None of this is new; all of it a marker of the times in the sense that the notion of legality, and its systems, has, over the course of the last several centuries continued to adhere to the cantillation of an ancient ideological ideal even as the basic structures and operations of the systems from which that ideal arose shifted from law as command, to legality as framework within which command shifted from text to administrative decision making within guided frameworks.
The subject of all of this is the guiding management of corporate governance, especially as a function of governmental oversight. While the ultimate object is legal compliance--with the heart of sovereign authority, its criminal law, its direct object was to reshape the forms and expectations of corporate governance through a series of punishments and rewards masquerading as policy (The New Legislation: Prosecutorial Discretion Guidelines and Corporate Compliance ("The temptations to move toward this shift of authority from the rule of law to the law of the exercise of discretion is especially irresistible where the prosecutorial organs of state power seek to protect against corruption or to further the governmentalization of enterprises through the institution of internal law systems (in the American parlance--compliance and monitoring programs designed to prevent, mitigate and avoid unlawful behaviors). ")). In 2023, I thought about it this way:
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One of the most interesting development among those fixated on the enterprise of law has been the way that the formal structures of law making have been dissolving under the acid drip that is shift from law-command institutions (the classical operating mode of the state) to institutional systems grounded in the exercise of administrative discretion conferred on officials by law. Law, in effect, at least its classical expression, has retreated, and in its place one finds the administrator, the official, the individual (or soon the automated generative and sentient AI program) applying, enforcing, or embellishing the structure or system making "command" of law. In the process, the direct interface between the individual who bears the burden of law (the objects of compliance) and those who impose it (traditionally legislatures and the judiciary) has also changed. The administrator--and increasingly the prosecutor--now stand between the individual and classical law. And the modalities of law do not reach the individual burdened with the responsibility for compliance. Rather, and increasingly, law's command--elaborated through the structures of regulatory governance (and effectuated through the exercise of administrative discretion)--is increasingly delegated to the individuals and entities whose compliance are their object (e.g., here). As a result--public legalities now wear two faces. On the one hand, they are charged with overseeing compliance by the objects of regulation; on the other they oversee that compliance both by exercising discretion in enforcement, and by elaborating the conditions under which that discretion is to be exercised. * * * None of this suggests judgment. None of this is sinister. It follows inevitably from the changing character of the state, and of the managerial expectations of public bodies. The incentive in compliance environments is to increasingly narrow private choice (and risk calculus) substituting for it the public policy choices of the state expressed through the administration of objectives-based regulation by its officials. ("Modern Times"--The Rise of State Managed Enterprises and the Role of the National Procuratorate in Market Economies like the United States)
A change of Administration appears not to have slowed the pace of this transformation, though perhaps it is now targeted differently. It is with this in mind that one can read the Department of Justice Press Release which is meant (as is the style of these announcements in the current era) to crow about some spectacular advance that brings joy to the masses:
The Department of Justice released today the first-ever Department-wide corporate enforcement policy for criminal matters, promoting uniformity, predictability, and fairness in how it pursues white-collar cases to protect the American people. “This Department of Justice is committed to transparency and fairness, and our first-ever Department-wide corporate enforcement policy is yet another example of that,” said Deputy Attorney General Todd Blanche. “ * * * “The Criminal Division has a long and storied history of corporate enforcement, and the corporate enforcement policy announced today takes the principles the Division has long promoted — disclosure, cooperation, and remediation — and applies them uniformly across the Department,” said Assistant Attorney General A. Tysen Duva of the Justice Department’s Criminal Division. “* * * The Department-wide Corporate Enforcement Policy (CEP) provides concrete benefits to incentivize companies to voluntarily disclose discovered misconduct, cooperate with our investigations, and timely and appropriately remediate the wrongdoing. (Press Release: Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases)
Its substance has been analyzed by some of the major law firms (example here). The effects on corporate governance within a compliance framework, however remains the same. Deputy Attorney General Todd Blanche made that clear enough: “Well-intentioned businesses know that, across the Department, they will be rewarded when they self-disclose wrongdoing, cooperate with our investigations, and remediate the misconduct. But for those that do not, make no mistake — we will not hesitate to seek appropriate resolutions against companies and individuals alike that perpetrate white collar offenses that harm American interests.” (Press Release)
The text of the Press Release and the Corporate Enforcement and Voluntary Self-Disclosure Policy follow below.
Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases
The Department of Justice released today the first-ever Department-wide corporate enforcement policy for criminal matters, promoting uniformity, predictability, and fairness in how it pursues white-collar cases to protect the American people.
“This Department of Justice is committed to transparency and fairness, and our first-ever Department-wide corporate enforcement policy is yet another example of that,” said Deputy Attorney General Todd Blanche. “This policy draws on decades of experience across the Department and creates incentives for companies to come forward and do the right thing when misconduct occurs so that we may hold accountable the individual wrongdoers. Well-intentioned businesses know that, across the Department, they will be rewarded when they self-disclose wrongdoing, cooperate with our investigations, and remediate the misconduct. But for those that do not, make no mistake — we will not hesitate to seek appropriate resolutions against companies and individuals alike that perpetrate white collar offenses that harm American interests.”
“The Criminal Division has a long and storied history of corporate enforcement, and the corporate enforcement policy announced today takes the principles the Division has long promoted — disclosure, cooperation, and remediation — and applies them uniformly across the Department,” said Assistant Attorney General A. Tysen Duva of the Justice Department’s Criminal Division. “The Division’s own corporate enforcement policy traces its roots to 2016. Since that time, based on our experience prosecuting the most sophisticated white-collar schemes, we refined our approach, culminating in the revisions announced in May 2025. Having helped craft the Department-wide policy, our prosecutors will continue to reward good corporate behavior, seek individual accountability, and root out criminal conduct in our mission to protect the American people.”
The Department-wide Corporate Enforcement Policy (CEP) provides concrete benefits to incentivize companies to voluntarily disclose discovered misconduct, cooperate with our investigations, and timely and appropriately remediate the wrongdoing. For companies that do, absent certain limited aggravating circumstances, the Department will decline to prosecute the company. Incentivizing corporate self-disclosures — while still permitting prosecutions in appropriate circumstances — allows the Department to quickly pursue culpable individuals, secure justice for victims, and deter white-collar crime, all while not unduly burdening American businesses. The CEP also provides predictability for companies and their counsel that approach these issues as it applies to all corporate criminal cases across the Department (aside from those relating to antitrust), superseding all component-specific or U.S. Attorney’s Office-specific corporate enforcement policies currently in effect.
Corporate Enforcement and Voluntary Self-Disclosure Policy1
Background
The Department of Justice (Department) is committed to prosecuting corporate criminal conduct
firmly, fairly, and efficiently. To do so, the Department seeks to incentivize responsible corporate
behavior, encouraging companies to invest in effective compliance programs, voluntarily self
report potential misconduct, meaningfully cooperate with law enforcement, and make good-faith
efforts to rectify wrongdoing. This aligns the Department's interest in swift criminal justice with
the interests of companies, shareholders, and other stakeholders in good corporate governance and
the public's interest in rooting out fraud and misconduct.
The Department's Corporate Enforcement and Voluntary Self Disclosure Policy (CEP) applies to
all corporate criminal matters handled by the Department, except for violations of 15 U.S.C. §§ 1-
38.
The CEP draws on decades of experience across the Department and creates incentives for
companies2 to disclose misconduct to the Department, enabling the government to investigate and
hold wrongdoers accountable more quickly. This policy is designed to: (1) drive early, voluntary
self-disclosure of criminal conduct; (2) promote timely and effective enforcement of criminal laws,
including holding culpable individuals accountable; (3) reduce harm; (4) facilitate prompt
remedial action, including requiring companies to compensate victims and address corporate
deficiencies; (5) help ensure consistency across the Department; and (6) transparently describe the
Department's policies and decisionmaking.
All resolutions under this provision must be approved by the Assistant Attorney General for the
relevant Division and/or the United States Attorney for the relevant district, or the individual
serving in that capacity, in coordination with the Office of the Deputy Attorney General, as
required by the Justice Manual (JM), and the Criminal Division where specifically required by
JM.3
To minimize uncertainty for companies that self-report, prosecutors must endeavor to obtain
relevant facts and circumstances about the disclosure in order to make a determination as to
eligibility for Part I and Part II of this Policy, and, where appropriate, are encouraged to inform
the company as soon as practicable.
Part I. Declination Under the CEP
The Department is committed to transparently describing the benefits a company may earn
through voluntarily self-disclosing misconduct. The Department will decline to prosecute a
company for criminal conduct when the following factors4 are met:
1. The company voluntarily self-disclosed the misconduct to an appropriate DepartmentIf there are aggravating circumstances, prosecutors retain the discretion to nonetheless
criminal component. 5
2. The company fully cooperated with the Department's investigation;
3. The company timely and appropriately remediated the misconduct; and
4. There are no aggravating circumstances related to the nature and seriousness of the
offense, egregiousness or pervasiveness of the misconduct within the company,
severity of harm caused by the misconduct, or corporate recidivism, specifically, a
criminal adjudication or resolution either within the last five years or otherwise based
on similar misconduct by the entity engaged in the current misconduct.
recommend a CEP declination based on weighing the severity of those circumstances and the
company's voluntary self-disclosure, cooperation and remediation. As part of the CEP
declination, the company will be required to pay all disgorgement/forfeiture as well as
restitution/victim compensation payments resulting from the misconduct at issue.6 All
declinations under the CEP will be made public.
Part II. "Near Miss" Voluntary Self-Disclosures or Aggravating Factors Warranting
Resolutions
If a company fully cooperated and timely and appropriately remediated but it is ineligible for a
declination under Part I of this policy solely because (1) it acted in good faith by self-reporting
the misconduct but that self-report did not qualify as a voluntary self-disclosure, as defined in
Appendix B, and/or (2) it had aggravating factors that warrant a criminal resolution, the
Department shall:
1. Provide a Non-Prosecution Agreement (NPA)-absent particularly egregious or
multiple aggravating circumstances;
2. Allow a term length of fewer than three years;
3. Not require an independent compliance monitor; and
4. Provide a reduction of at least 50% but not more than 75% off the low end of the U.S.
Part III. Resolutions in Other Cases
If a company is not eligible for Part I or Part II set forth above, prosecutors maintain discretion
to determine the appropriate resolution including form, term length, compliance obligations, and
monetary penalty. With respect to the monetary penalty, the company will not receive, and the
Department will not recommend to a sentencing court, a reduction of more than 50% off the fine
under the U.S.S.G. Prosecutors will have discretion to determine the specific percentage
reduction but there will be a presumption that the reduction will be taken from the low end of the
U.S.S.G. range for companies that fully cooperate and timely and appropriately remediate.
Otherwise, prosecutors will determine the starting point in the range based on the particular facts
and circumstances of the case, including (but not limited to) the company's recidivism.7 In
exercising discretion to determine the monetary penalty, prosecutors will consider the factors
under U.S.S.G. § 8C2.8.
FOOTNOTES:
1 This policy is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person.
2 The terms corporation and company apply to all types of business organizations, including but not limited to partnerships, sole proprietorships, government entities, and unincorporated associations. See JM § 9-28.200 n.1.
3 Nothing in the CEP is intended to prohibit the exercise of prosecutorial discretion to decline prosecution consistent with JM §§ 9-2.020, 27.260, & 28.300, et al.
4 Factors one through three are defined in Appendix B.
5 Under this Policy, disclosure must be made to the appropriate component of the Department. Good faith disclosure to one component where the matter is later brought to another appropriate component for investigation will also qualify. Disclosures made only to federal regulatory agencies, state and local governments, or civil enforcement agencies generally do not qualify. However, good faith disclosures to such entities may qualify if appropriate under the circumstances. This will be determined based on the particular facts and at the discretion of the Department. In all cases, such disclosures may be considered as
part of a company's cooperation and remediation.
6 See also Coordination of Corporate Resolution Penalties in Parallel and/or Joint Investigations and Proceedings Arising from the Same Misconduct, Justice Manual I -I 2. I 00, and Evaluating a Business Organization's Inability to Pay a Criminal Fine or Criminal Monetary Penalty, October 8, 2019. Sentencing Guidelines (U.S.S.G.) fine range.
7 The Department-wide Merger & Acquisition (M&A) Policy, see Justice Manual 9-28.600 and 9-28.900, applies to misconduct uncovered in the context of M&A pre- or post-acquisition due diligence, which is a subset of circumstances addressed by this Policy.
APPENDIX A - CEP Flow Chart
APPENDIX B - Definitions, Notes, and Comments
APPENDIX A - CEP Flow Chart
APPENDIX B - Definitions, Notes, and Comments
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