On May 9, 2025, President Trump signed an Executive Order aimed at addressing “overcriminalization in federal regulations.” This move revives a previous order from the last days of Trump’s first administration, which was revoked by President Biden. The Executive Order seeks to prevent the “abuse and weaponization” of criminal regulatory offenses against individuals who may not have the resources to navigate complex regulations like large corporations do.
The order is expected to result in fewer criminal investigations and enforcement actions by the U.S. Department of Justice (DOJ) concerning regulatory violations, particularly for strict-liability offenses. However, it could also lead to more aggressive investigations and severe punishments for those cases that proceed. Companies are advised to monitor agency announcements related to this order closely.
The policy outlined in the Executive Order states that “[c]riminal enforcement of criminal regulatory offenses is disfavored,” except for immigration laws or national security-related regulations. It emphasizes focusing prosecutions on individuals who knowingly violate regulations.
Federal agencies are directed under this order to consider civil rather than criminal enforcement where appropriate and to explicitly describe conduct subject to criminal enforcement along with applicable legal standards.
This new directive mirrors Trump’s January 2021 order titled “Protecting Americans from Overcriminalization through Regulatory Reform,” which required agencies to clarify the mental state element of criminal offenses and discouraged strict liability prosecutions unless necessary.
There is ongoing legislative debate on this issue, with Representative Andy Biggs introducing the Mens Rea Reform Act of 2025. This bill aims to establish a default mental state requirement for federal offenses lacking an explicit standard.
The implications of this Executive Order remain uncertain but may lead to fewer yet more severe regulatory prosecutions. DOJ’s recent restructuring efforts might contribute further towards this trend by consolidating its enforcement work within its Criminal Division.
Gibson Dunn is monitoring these developments closely and offers assistance as companies navigate these changes in the legal landscape.
