Switchbacks at the DOJ: the Sessions, Brand, and Garland Memos

During President Biden’s first year in office, Attorney General Merrick Garland rescinded two key memos that were part of the Trump Administration’s stated regulatory reform agenda: the Sessions Memo, which prohibited Department of Justice (DOJ) components from issuing “guidance documents” that effectively bound the public without undergoing notice-and-comment rulemaking, and the Brand Memo, which prohibited the Department from using noncompliance with DOJ's or other agencies' nonbinding guidance documents as a basis for affirmative civil enforcement actions. Calling the procedures laid out in the Sessions and Brand memos “overly restrictive,” Attorney General Garland replaced these memos with the Garland memo, which largely makes it easier for the Department to issue guidance and to rely on its own or other agencies' guidance documents in enforcement actions.

What will be the impacts and effects of the Garland memo? Is this a sea change in favor of regulation by guidance, or a recognition by DOJ that guidance documents do not have the force of law? How have regulated entities responded? Acting Associate Attorney General (2017-2019) Jesse Panuccio and Assistant U.S. Attorney (2011-2019) Christopher Sabis will discuss these issues, moderated by Assistant Attorney General (2017-2020) Beth Williams.

Featuring:
--Jesse Panuccio, Partner, Boies Schiller Flexner LLP
--Christopher Sabis, Member, Sherrard Roe Voigt Harbison
--Moderator: Hon. Beth A. Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice

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