Trump Administration Takes Aim at Regulatory Overcriminalization (The Journal of Federal Agency Action)

Womble Bond Dickinson attorneys Michael Clark, Joe Whitley, Jacob Edwards and Matthew Hickman have written a new article titled "Trump Administration Takes Aim at Regulatory Overcriminalization." The article appears in the current issue of The Journal of Federal Agency Action.

On May 9, 2025, President Donald Trump issued an executive order titled “Fighting Overcriminalization in Federal Regulations,” aimed at reducing the criminal consequences of violating federal regulations. The order addresses the overwhelming number of regulatory offenses—many of which carry criminal penalties—and seeks to prevent individuals from being prosecuted for unknowingly violating obscure rules. It establishes that criminal enforcement of such offenses is generally disfavored, especially in cases involving strict liability, where intent or awareness of the regulation is not required for prosecution.

To improve transparency and fairness, the order mandates that each executive agency publish a list of regulatory offenses it enforces, including the applicable criminal penalties and intent standards. Agencies must also coordinate with the Attorney General to explore adopting a default mens rea (intent) requirement for offenses that currently lack one. Additionally, agencies are required to provide clear guidance on how they decide whether to refer regulatory violations to the Department of Justice, considering factors such as harm caused, potential gain, and the defendant’s awareness or expertise.

The order excludes immigration and national security enforcement and is expected to have limited impact on highly regulated industries, where individuals are presumed to know the rules. It may also weaken enforcement under doctrines like the Park Doctrine, which holds corporate officers liable without proof of intent. Overall, the order opens the door for more civil resolutions and negotiated settlements, such as deferred prosecution agreements, offering greater flexibility for those facing regulatory scrutiny.

Click here to read the full article in The Journal of Federal Agency Action.