On May 9, 2025, President Trump published a Executive decree This claims to reduce regulatory charges and guarantee that “no American is transformed into a criminal to violate a regulation that they have no reason to know.” The executive decree sets out a policy disadvantaged the criminal application of regulatory offenses, except in the circumstances where people know – or can be presumed – regulatory requirements and “willingly choose not to comply”. He also underlines that strict criminal criminal offenses are “generally disadvantaged” and encourages agencies, where the application is justified, to consider civil or administrative application rather than criminal proceedings, in a manner in accordance with the regular procedure and the right to a trial with jury.
To implement these principles, the decree directs each agency, in consultation with the Attorney General, to submit to the Management and Budget Office (OMB) within 365 days, a report listing all the enforceable criminal criminal criminal offenses, including men for men for men applicable, or required, standard and potential mental state. These reports must be published publicly and updated each year, and the criminal application of unlisted offenses is “strongly discouraged”. Additional directives include the reference directives of the Ministry of Publication of Justice (DOJ) and the exploration of the adoption of a “Mens REA by default for criminal regulatory offenses”, subject to exceptions. The executive decree explicitly excludes from its application of the functions of application of immigration and national security.
BACKGROUND
The decree represents the latest efforts of the Trump administration aimed at reducing federal regulations and limiting what it considers to be overcome with the government.(1) It is considered to be a response to long -standing concerns concerning the size and complexity of the federal regulatory framework.
The decree maintains that the executive power has, in practice, assumed the almost legislative authority by promulgating regulations which bear criminal consequences, which risks “abuse”, allows a selective application against individuals and “privileges” in a disproportionate manner which are better equipped to maintain legal advice to navigate “complex regulatory systems” during the expense of individuals and small businesses.
Executive decree
The executive decree describes a series of measures to reduce the use of criminal sanctions for regulatory violations and increase transparency in the application of these offenses:
First of allThe executive decree stipulates that it is the policy of the United States that: (i) the criminal application of regulatory offenses is disadvantaged; (ii) criminal proceedings are “the most appropriate” for people who know – or can be presumed to know – regulatory requirements and “nevertheless choose not to comply”; (iii) strict offenses on responsibility are “generally disadvantaged” and when the application is justified, the agencies should consider Civil Over Criminal Sun for regulatory offenses of strict responsibility, or, if applicable and in accordance with the regular procedure and the right to a trial with jury (See Jarkesy V. SECOND603 US 109 (2024)), administrative procedures; and (iv) agencies promulgating the regulations which can bear criminal sanctions should clearly identify the conduct subject to the application of criminal laws, the statutory authority to do so and the standard for men.
SecondThe executive decree requires that each agency, in consultation with the Attorney General, submits to the OMB within 365 days a complete list of all the regulatory criminal offenses. For each offense, the agency must include the applicable Mens REA standard and the range of potential criminal sanctions. These reports must be published publicly and updated each year. The “strongly discouraging” executive decree of the criminal application of offenses which are not included in these public reports. He also asks the Attorney General to examine whether a regulatory offense appears in the public report of the agency concerned before launching a investigation or criminal procedure.
Third, To promote regulatory transparency in the future, the executive decree orders the agencies of: (i) to identify any proposed or final rule in the Federal register This “may constitute” a criminal regulatory offense; (ii) specify the applicable mens rea for each element of a criminal regulatory offense; and (iii) submit an offense of responsibility to an increased revision as “significant regulatory action” within the framework of the executive decree 12866 of September 30, 1993 (regulatory planning and examination).
FourthThe executive decree also instructs agencies – again in consultation with the Attorney General – to explore the adoption of one “Mens REA by default for criminal regulatory offenses” which applies “unless a specific regulation indicates another mens REA.” Within 30 days of the submission of their initial reports, each agency manager must submit a follow -up report to the OMB director, also in consultation with the Attorney General, evaluating “if the Mens REA standards applicable for criminal regulatory offenses imposed by the agency are appropriate.” When it complies with the statutory authority, the report must include an existing mens REA standards revision plan, adopt a generally applicable default standard and justify each offense where the agency proposes to deviate from this defect.
Fifth, Agencies are also responsible for publishing directives on how criminal violations of regulatory offenses should be referred to the Ministry of Justice (MJ) for the application. These directives should take into account several factors, in particular: (i) the real or potential damage caused by the alleged offense; (ii) the potential gain of the accused of the offense; (iii) if the defendant had knowledge, expertise or license specialized in the industry linked to the rule or the regulations in question; and (iv) the extent to which the defendant was aware that their conduct was illegal, including their knowledge – or their absence – of the applicable regulations.
FinallyTHE information sheet Supporting the executive decree declares that it “does not apply to the functions of application of the law or national immigration security”.
Implications
The practical impact of this decree on investigations and current and future criminal proceedings remains uncertain for individual and business customers.
First of allThe order notably stresses that, in certain circumstances, “the Americans can be condemned without knowing that they have violated a rule”. This criticism of the current regulatory framework seems to aim to fight against crimes of strict responsibility (that’s to sayCrimes for which the government does not need to prove that the defendant acted intentionally), but also “general intention” crimes, which require proof that the defendants acted intentionally but not that they knew their conduct was illegal. (On the other hand, “the specific intention” of crimes –For exampleViolations of the regulations of SOFAC sanctions – require such knowledge of illegality). Implicit criticism of the prescription of the criminal application under a standard of general intention could have significant political implications, in particular in the criminal crime business surveys such as the unauthorized exploitation of monetary service companies and the violations of certain regulations of the Commission for the Exchange of Securities (SEC).
Second, Uncertainty remains concerning the offenses that agencies will identify in their next reports to the director of the OMB. The inclusion or omission of specific offenses can report a recalibration of application priorities or otherwise influence surveys and future or future prosecution. In addition, Mens REA standards expressed in these reports can deviate from traditional interpretations, potentially reflecting a broader change in the way the intention is evaluated and applied in various regulatory contexts.
Third, The directive of each agency chief, in consultation with the Attorney General, to assess and potentially adopt a standard for men by default for criminal regulatory offenses introduces additional ambiguity. The substance and extent of any default standard proposed, the extent to which the differences will be authorized, and the extent to which the standard would be applied in a coherent manner between the agencies will remain. How individual agencies – and the Attorney General Bondi – interpret and apply this directive could have important implications for criminal exhibition in the future.
Notwithstanding the decree by the executive order a potential change in the priority of the application of regulations, companies should not deal with it as a base to minimize potential criminal regulatory problems or relax compliance efforts. The attenuation of the risk of application of federal criminal regulations remains a fundamental characteristic of business risk management. In addition, it is unlikely that the order has an impact on the application of the types of criminal laws –For exampleFraud to the bank and by wire, fraud in securities, fraud to health care, prohibitions against sanctions and money laundering – that the DoJ is most often continuing against large companies. Finally, the decree seems to aim mainly to attenuate the charges for individuals, small businesses and new entrants on the market – rather than large large -scale entities. As such, the maintenance of robust conformity protocols remains critical.
End note
(1) For example, on January 20, 2025, President Trump established The Ministry of Government Effectiveness (DOGE) to examine how to rationalize the federal government, eliminate unnecessary programs and reduce bureaucratic ineffectiveness. On January 31, 2025, President Trump spear A deregulation initiative of 10 to 1 aimed at ensuring that each new rule is justified by clear advantages.
This message comes from Sullivan & Cromwell LLP. It is based on the company’s memorandum, “President Trump issues an executive decree,” fighting overriminalization in federal regulations “, dated May 14, 2025, and available here.
