By Tom Ozimek
President Donald Trump issued an executive order on Monday that aims to protect Americans from “overcriminalization” by regulations.
The order seeks to make the consequences of violating certain regulations more transparent as a safeguard against unwarranted criminal punishment for unintentional regulatory violations.
“In the interest of fairness, federal criminal law should be clearly written so that all Americans can understand what is prohibited and act accordingly,” Trump wrote.
The move dovetails with Trump’s broader effort to reduce regulatory burden on individuals and companies, a hallmark of his administration.
“Some statutes have authorized executive branch agencies to promulgate thousands of regulations, creating a thicket of requirements that can be difficult to navigate, and many of these regulations are enforceable through criminal processes and penalties,” the president noted.
The order seeks to reduce regulatory burden on Americans by making sure they are adequately informed about potential criminal liability for violations of regulations. It also calls on prosecutors to concentrate on punishing only the “most culpable individuals” in pursuing cases of regulatory offenses.
“Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited,” Trump wrote.
One of the ways the executive order seeks to accomplish the objective of preventing overcriminalization is by discouraging so-called “strict liability offenses,” ones which do not require prosecutors to prove “mens rea,” or the state of mind that by law must be proven to convict a particular defendant of a particular crime. The executive order makes such offenses “generally disfavored” and instead calls on agencies to consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement.
The order came amid a flurry of proclamations and executive orders issued on the eve of Trump ceding power to President-elect Joe Biden, who is due to be sworn into office on Jan. 20.
One of these, entitled the “Executive Order on Ensuring Democratic Accountability in Agency Rulemaking,” would allow federal agencies to issue new regulations only at the instigation of political appointees, who are accountable to voters, rather than career officials.
“Some agencies have chosen to blur these lines of democratic accountability by allowing career officials to authorize, approve, and serve as the final word on regulations,” Trump wrote. “This practice transfers the power to set rules governing Americans’ daily lives from the president, acting through his executive subordinates, to officials insulated from the accountability that national elections bring. This practice undermines the power of the American people to choose who governs them and I am directing steps to end it,” Trump added.
Trump also issued an executive order that would try to increase protections for law enforcement officers, judges, prosecutors, and their families.
“My administration has no higher priorities than preserving the rule of law in our country and protecting the men and women who serve under its flag,” Trump wrote. “Accordingly, I am ordering enhanced protections for judges, prosecutors, and law enforcement officers.”
Another executive order issued Monday directed the federal government not to purchase drones “that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries,” which appeared to be aimed at China.
It is unclear how long Trump’s executive orders will remain in force, as Biden plans his own blitz of executive orders, with many expected to reverse Trump’s agenda.
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