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

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

Ryan Lacey:  Welcome to The Federalist Society's virtual event. This afternoon, March 3, 2022, we discuss "Switchbacks at the DOJ: the Sessions, Brand and Garland Memos." My name is Ryan Lacey, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that the expressions of opinions are those of the experts on today's call.

      Today, we are fortunate to have an excellent panel moderated by Beth Williams, who I will introduce very briefly. Beth Williams is a board member at the United States Privacy and Civil Liberties Oversight Board. Prior to her board service, Ms. Williams was the Assistant Attorney General for the Office of Legal Policy at the United States Department of Justice.

      Williams graduated from Harvard College magna cum laude with a degree in history and literature. And she earned her law degree from Harvard Law School, where she served as Executive Editor of the Harvard Journal for Law & Public Policy.

      After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen and we will handle questions as we can towards the end of today's program.

      With that, thank you for being with us today. Ms. Williams, the floor is yours.

Hon. Beth A. Williams:  Good afternoon. And thank you, Ryan. It's so nice to be here with you today, and with The Federalist Society, to discuss this important topic; the Sessions, Brand, and Garland memos; and the state of regulatory reform. And it is not only our distinguished panelists today who think this topic is important. As one of President Biden's very first actions in office, on January 20, 2021, he issued Executive Order 13992, which revoked most, if not all, of the regulatory reform measures taken by the prior administration.

      As an explanation for this revocation, President Biden stated that it is the policy of his administration to "use available tools to confront the urgent challenges facing the nation, including the COVD-19 pandemic, economic recovery, racial justice, and climate change." The order continues, "This order revokes harmful policies and directives that threaten to frustrate the federal government's ability to confront these problems and empowers agencies to use appropriate regulatory tools to achieve these goals."

In line with this executive order, Attorney General Merrick Garland, on July 1, 2021, rescinded two key memos that were part of the Trump administration's stated regulatory reform agenda at the Department of Justice: the Sessions Memo, which prohibited 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 non-compliance with DOJ's or other agencies' non-binding 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.

So to talk about what actually happened and the implications of this, we have two incredible speakers here today with first-hand knowledge. First, I'd like to introduce Jesse Panuccio, who is a partner at Boise Schiller and Flexner in both its Washington D.C. and Fort Lauderdale offices. Jesse focuses on complex litigation and appeals and serves as the co-chair of the firm's appellate practice. He's also a public member of the Administrative Conference of the United States.

Prior to joining Boise Schiller, Jesse was the Acting Associate Attorney General at the Department of Justice until 2019, where he oversaw the civil and criminal work of the Antitrust, Civil, Civil Rights, Environment and Natural Resources, and Tax Divisions, and served as the Chair of DOJ's Regulatory Reform Task Force.

Before that, Jesse served for three years as the secretary of Florida's labor, economic-development and land-use agency, the Florida Department of Economic Opportunity. And he served as Governor, now Senator, Rick Scott's General Counsel. Jesse is also a fellow at the Center for the Study of the Administrative State at the Scalia Law School at George Mason University, where he writes and speaks about administrative law.

Next, we're delighted to have Chris Sabis join us. Chris heads Sherrard Roe Voigt & Harbison's Government Compliance & Investigations Group. He concentrates his practice in the areas of government investigations and litigation. He has extensive experience in False Claims Act matters involving allegations of healthcare and procurement fraud, white collar fraud investigations, and commercial litigation.

Before joining the firm, Chris served nearly a decade as an Assistant U.S. Attorney in the Middle District of Tennessee, where he worked on incorporating some of the department's regulatory reform initiatives into the Justice Manual, which is used as a reference by department attorneys across the country. He has subsequently written on this topic for the ABA. In addition to his regular duties, Chris is the district's Elder Justice Coordinator and International Affairs Coordinator.

Chris earned his JD at Georgetown University Law Center. He serves as a hearing examiner for the Tennessee Board of Professional Responsibility. He is a member of the Tennessee Bar Association, where he has served as Chair and Vice-Chair of the Federal Practice Section.

He is a member of the National Bar Association and Chair of its Historical Committee. Chris is also a member of the American Health Law Association and the Health Care Compliance Association. He is the Past Chair of the Board for Stars Nashville, a non-profit focused on the social development of children in Tennessee schools. He is a board member and the Board Secretary of Autism Tennessee and has been an Adjunct Professor of Law at Belmont University, where he taught pre-trial litigation.

We'll start with some remarks by Jesse and Chris, followed by some questions. As a reminder, if you have questions, please use the Q&A function to submit them, and we'll try to get to as many as possible. Jesse, why don't you begin.

Jesse Panuccio:  Well, thanks very much, Beth. Thanks to Ryan, as well. Beth, it's always a pleasure to be with you and to be reunited again here. Serving with you at DOJ was one of the great privileges of my career thus far. So good to see you here virtually and congratulations on your recent appointment. And, Chris, nice to join you as well. A privilege to be with you. I look forward to this discussion.

      And, finally, thanks to The Federalist Society. I just looked up today when I was getting the link for this -- I thought it would be easy to find today's event. And they have so many events going that you actually have to scroll to the second page just for the events today. So thanks to The Federalist Society for all they do to make sure we're having important discussions about timely topics across the country in law schools and in lawyers' chapters everywhere.

      So, I'll get into it here. Our topic today is DOJ's approach to guidance documents. And, I guess, more generally, the federal executive branch's approach to the use and enforcement of guidance documents. Let me begin, as I often do when I discuss regulatory reform topics, with some first principles.

      James Madison famously lamented in Federalist 51 that men are not angels, and, thus, we need a government. And he explained after that, "In framing a government which is to be administered by men, over men, the great difficulty lies in this: you must first enable the government to control the governed, and, in the next place, you must oblige it to control itself."

      Now, the framers accomplished this latter goal — obliging the government to control itself through the structural Constitution — with its carefully divided powers and its checks and balances. But, to sum up several hundred years of American history in just a second or two, the administrative state has long since eviscerated most of those structural protections. And, today, federal agencies, especially the Department of Justice, often wield the very unchecked and uncontrolled power the framers feared would be destructive of individual liberty.

      And DOJ's seemingly limitless power was on full display, and, in the eyes of many like me, was abused during the eight years of the Obama administration. Many of DOJ's practices looked a lot like legislating new law, rather than enforcing existing law. Examples included the use of sprawling consent decrees to impose requirements on state and local governments, the use of third-party payments and settlements to fund administration priorities that Congress had explicitly refused to fund, and enforcement of statements of agency policy that had not gone through congressional lawmaking or APA notice-and-comment rulemaking.

      In short, DOJ was not, in Madison's words, controlling itself. It was, in many ways, exercising legislative and executive power. And because many parties settle with DOJ rather than risk heavier penalties at trial, DOJ was also easily avoiding the meaningful check of judicial power.

      So, when we arrived at DOJ in 2017, one of our goals was to implement strong regulatory-reform policy, and to return DOJ to its core mission of enforcing exiting law, rather than making new law. Our goal was the same as Madison's: to oblige the department and the executive branch to control itself.

      We put in place policies to guide and constrain the use of consent decrees, third-party payments, and, as relevant here, the use of guidance documents. Now, what is a guidance document? It is variously defined, but, in short, it's an agency statement of policy or interpretation that has future effect on regulated parties, that is, parties outside of the Department of Justice or the agency at issue, the public.

      These statements do not go through the lawmaking process established by the Constitution, that is, bicameralism and presentment in the Congress and with the president. And they do not go through the rulemaking process established by the Administrative Procedure Act. Instead, agencies simply announce these rules, these policies, in whatever form and at whatever time they please. During the Obama administration, for example, we often had government — what some people called government by blog post — in which an agency would simply post a blog with some important new policy that would then govern the general public.

      Guidance documents have thus rightly been deemed subregulatory guidance or subregulatory policy, or even with the moniker regulatory dark matter. So what did the Sessions DOJ do to control itself in the use of guidance documents? First, Attorney General Sessions issued his memo of November 16, 2017, which clearly stated the principle that "Guidance may not be used as a substitute for rulemaking and may not be used to impose new requirements on entities outside the executive branch." The memo established that DOJ may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the executive branch.

      Next, two months later, on January 25, 2018, Associate Attorney General Rachel Brand issued a memo that further implemented the principles of the November 2017 memo. That January 2018 memo established "That the department may not use its enforcement authority to effectively convert agency guidance documents into binding rules." In other words, the November 2017 memo dealt with the department's issuance of guidance documents, and the January 2018 memo dealt with DOJ's use of, and reliance on, and enforcement of, other agency's guidance documents.

      Over the next two years, the principles and policies announced in these memos on guidance were added to the Justice Manual. That is the centralized manual that controls all department attorneys and sets policy for all department attorneys. And they were also added to the department's regulations in the CFR, the Code of Federal Regulations. And this is an important point.

I remember when I arrived at the Department of Justice, I would ask why certain things were done in a certain way, and people who had been there a while -- career officials, and even political officials with prior experience would say, oh, that's from the Delery Memo, or the Yates Memo, or the Holder Memo, or pick your official. Sometimes it was even officials I had never heard of before and there was a memo with their name on it. 

      So I once asked, after hearing that some policy I was interested in or something was being done in a certain way, someone said, "Oh, that's the Delery memo." So I asked our staff, I said, "Would you please collect all of the Associate AG memos that were issued during the last administration." I said, "Find them all. Let's just see what they were." It couldn't be done. Nobody could locate all of these memos. There was no central repository.

      And that meant there was no place where the public — much less the third-ranking official at the Department of Justice — could actually go to find what policies governed the things the Department of Justice does. Now, as a quick aside, there's a reason why DOJ officials like to put their names on memos. It's very marketable when you get to private practice. If you don't believe me, just go look at some law firm bios of former officials, and even officials who were tangentially involved, and you will see the names of many of these memos. But that's an aside.

      In any event, one of the good reforms that Deputy Attorney General Rosenstein put in place was to insist that all department policy from all memos be formalized and centralized in the Justice Manual and in department regulations. After all, if you are obliging the government to control itself, the policies that implement that control should be public, accessible, and transparent.

      These larger efforts to step back and talk about the issue of guidance documents, the efforts at regulatory reform at DOJ, were also mirrored at other agencies. And a lot of them were appropriately derived from executive orders that the president had promulgated. The Department of Transportation, for example, established excellent memos and policies on the use of guidance. And we saw this in other agencies as well.

      And, as I said, the president issued several executive orders on regulatory reform, including EO 13891, on October 9, 2019, which set a rule for the entire executive branch, not just DOJ, that, "Agencies must treat guidance documents as non-binding, both in law and in practice." So, with that background, that descriptive background of the Trump administration, we now get to the title of this Teleforum, which is "Switchbacks," switchbacks at DOJ, and more generally.

      Upon taking office, President Biden issued Executive Order 13992, which revoked executive Order 13891 and other regulatory reform policies. President Biden declared that such policies were "harmful and threaten to frustrate the federal government's issues like the pandemic." President Biden announced that, "Executive departments and agencies must be equipped with the flexibility to use robust regulatory action to address national priorities." In other words, to summarize that, the administrative state should be in control and not be constrained in any way.

      At DOJ, Attorney General Garland wasted no time in taking action to implement President Biden's executive order. He revoked the policies constraining the use of consent decrees, third-party payments, and, as relevant here, guidance documents. In his July 1, 2021, memo, Attorney General Garland revoked the Sessions and Brand memos, to the extent that they "changed the department's traditional approach to guidance documents by establishing new review and approval conditions, and by placing additional restrictions and requirements on both publishing and relying on agency guidance.

      Attorney General Garland instructed that department attorneys may use guidance documents in affirmative enforcement cases, including when those documents may, in the department's judgment, be entitled to judicial deference. In other words, guidance documents can be used in court cases and enforcement actions to establish the law in cases of ambiguity.

      Attorney General Garland also instructed the department to revise the Justice Manual accordingly, and, indeed, the section on the manual placing guardrails on the use of guidance documents has now disappeared from the manual. Furthermore, also on July 1, Attorney General Garland signed an interim final rule revoking DOJ's prior rule on guidance document reform. In the preamble to the rule, the department stated they would no longer codify policies like this in regulations: "Going forward, the department's approach to those matters will be governed by memoranda again" -- memoranda with various officials' names on it, not collected in any kind of central repository.

      So, that's the descriptive background. Now let me make just a few prescriptive points before I turn it over to Chris. First, in the policies adopted by the Sessions DOJ and the Garland DOJ and in the Trump and Biden executive orders, you see two very difficult views of the role of government and the rule of law. The Biden-Garland view is that the administrative state is the government. It is and must gain power to take action on any issue at any time in any manner the administrative states deems necessary.

      The view that the Sessions DOJ adopted was that constitutional guardrails still matter for preserving liberty, that good government, — liberty-preserving government — must be checked by separated powers, and, importantly, by self-restraint, by controlling itself.

      Second, I should note that the descriptive historical points I offered in the first several minutes of my comments make the path to regulatory reform in the Sessions and Bar DOJs seem very linear and straightforward. But, of course, real life was a lot messier.

As soon as the Sessions and Brand memos were announced, along with other regulatory reform policies, there was, indeed, resistance, both from career officials and political appointees who did not like change, did not like any upsetting of the traditional ways of doing things, and, frankly, did not want their own power checked in any way. Because, of course, being able to do what you want often makes your job easier. And when you are wearing the white hat and prosecuting bad guys and doing other important things, it often is expedient and easy to say that self-imposed controls simply get in the way.

      Thus, during the process of reducing the Sessions and Brand memos down to Justice Manual and CFR regulations, for example, there were many internal skirmishes and efforts to chip away at the principles those memos laid down. Sometimes those efforts were defeated and sometimes they prevailed. But I still think the Justice Manual and CFR regs came out pretty well before Attorney General Garland eviscerated them.

      Another struggle at regulatory reform was over the position the department took in the Supreme Court case in Kisor v. Wilkie, in 2019, which decided the future of Auer deference. That is, judicial deference to agency interpretations of agency rules. My position, and that of many other reg reformers in the department, was that support for Auer deference was simply incompatible with the principles announced in the Sessions and Brand memos.

Unfortunately, that view did not prevail, and the Solicitor General's office filed a brief supporting the continuation of Auer deference in the Kisor case, and that, of course, is the position the Supreme Court ultimately took. And Auer deference lives on — unfortunately, in my view — to this day.

      Finally, I'll note that efforts of the regulatory reformers in the Trump administration faced significant headwinds when the pandemic hit. The temptation for many officials, including political appointees, was to revert to the expediency of agencies being able to make up the law as they go. One need only look at the Treasury Department's ever-changing question-and-answer document on the PPP loans to see that phenomenon in action.

      And, then, of course, came the election of President Biden and the reemergence of what I would call the administrative status, such that these principles never really had the opportunity to take full root. But, hopefully they provide a template for a future reform-minded administration to look to, once in power.

      Thanks very much. And, Chris, I look forward to hearing your comments.

Hon. Beth A. Williams:  Thanks so much, Jesse. And I know we all are sad that we missed the Panuccio Memo. So maybe the next go-round you'll get one after you. So, turn it over to Chris now, for his remarks.

Christopher Sabis:  Thank you very much. And thanks to The Federalist Society for inviting me to this. It's a real pleasure to be here. Just to reiterate a little background on me so everyone understands where I'm coming from with these topics, I was an Assistant United States Attorney in the Middle District of Tennessee from 2011 through December 2019. As such, I am significantly outranked on this particular panel. And I will try to be interesting in spite of that. And, obviously, my views are my own and don't reflect the position of the department then or now.

      I was focused on Affirmative Civil Enforcement, otherwise known as ACE, which is particularly healthcare and procurement fraud. I was there when both the Sessions and the Brand memos issued. Given my role on the line as an AUSA doing False Claims Act cases, my focus was primarily on the Brand Memo, though, obviously, I read and was familiar with both.

      While I was an AUSA, I took part in a number of discussions regarding the Brand Memo and played a role in drafting the provisions of the justice memo that Jesse alluded to, pertaining to the Brand Memo that DOJ adopted a few months later.

      From that background, I can talk about my view on these memos, which is probably going to be a little more micro than what Jesse stated. I'm looking at this more from the position of a line prosecutor, in civil cases, mostly. And, to me, the question of what kind of change the Garland Memo will bring, in that context, depends on a couple of things. First, it depends on the baseline that you're starting from.

      For example, in the ACE context, are we starting from a baseline of the original Brand Memo, or are we starting from a baseline of the Justice Manual provisions? Because they're not exactly the same, or at least not -- at least arguably not the same, even though both were enacted during President Trump's administration.

      The next question is what happens next? What follows the Garland Memo? Jesse alluded to regulatory provisions that are gone. The Brand Memo provision is gone. So I think what comes next is key. But, from my perspective, I think it's important to kind of go through, like I said, on maybe a bit more micro level and try to give a timeline of these documents and how they came to be, and what the difference was between them.

      So, as Jesse noted, the Sessions Memo was first. I don't want to rehash too much on that. Basically, it stood for the principle that guidance that does not undergo the rulemaking process is not binding on parties outside of the executive branch. DOJ should avoid circumventing the rulemaking process and should identify guidance documents as guidance and disclaim that they have the force or effect of binding law, and make clear that guidance contains recommended practices and would not -- and the guidance documents did not, in and of themselves, result in enforcement action.

      That was the first step. And that was followed by the Brand Memo a couple of months later. And the Brand Memo addressed guidance documents specifically in the context of ACE cases. It was directed to Affirmative Civil Enforcement prosecutors. And it stated that non-compliance with an agency document, in itself — again, in and of itself — will not result in an enforcement action.

      It, then, arguably, went a step further, in the eyes of many that I've spoken to, where it went on to say that department litigators may not use non-compliance with guidance documents as a basis for proving violations of applicable law in ACE cases. The language "a basis" there, as opposed to, "the basis" is interesting, and arguably where it goes a step further, in that the Sessions Memo talked about guidance documents not in and of themselves resulting in enforcement actions, whereas the Brand Memo seemed a bit more restrictive in saying that they could not be "a basis" for enforcement actions.

      The Brand Memo went on to say that the department may continue to use agency guidance documents for proper purposes, but it only provided one example of a proper purpose. It stated that where a document simply explained or paraphrased the statute or regulation, then the document could be used by the department in order to show that the party had the requisite knowledge for, say, a False Claims Act violation.

      There were a couple of limitations in the Brand Memo. One, it indicated it applied only to future ACE actions brought by the department and to matters currently pending, wherever practicable. As Jesse alluded to, the policy was not in place particularly long, and so it's difficult to know "wherever practicable" meant. The Kisor case may be some kind of indication of that. But the memorandum also stated that it was an internal policy document that cannot be relied upon by any party in any civil or criminal matter.

A few months later, the Justice Manual provision appeared. As Jesse indicated, Deputy Attorney General Rosenstein pursued this project. It was a large-scale revision of the former U.S. Attorney's Manual. My understanding, from the line — much along the lines Jesse was talking about — was that the goal was to put DOJ policies like the Brand Memo and other memos into one easily accessible place and limit the practice of memos flying around ad hoc.

 I can tell you, personally, as a line AUSA, I love that concept. There were a number of memos, frankly — and I'd like to think I'm well-informed with names that I had never heard of, was not familiar with — and you'd get sent here, there and everywhere, depending on what your situation was. So the idea of a Justice Manual always sounded wonderful to me. In fact, even before the DAG pursued the project, I wondered why the U.S. Attorney's Manual was called the U.S. Attorney's Manual, and not something like the Justice Manual. So, there you go.

Numerous individuals at Justice, including some on the Attorney General's advisory committee were tasked with incorporating the Brand Memo into the Justice Manual. And this is how I got involved. And it eventually resulted in what was Section 1-20 on the limitation of the use of guidance documents in litigation. As I understand it, Section 1-20 went through significant review and revision, involved numerous DOJ lawyers and U.S. Attorneys, appointed U.S. Attorneys. And, in the end, it restated the general legal policy statements of the Sessions and the Brand memos.

But the Justice Manual provisions stressed that there were legitimate uses for guidance documents in ACE cases. It stated that the department may continue to rely on agency guidance documents for purposes, including evidentiary purposes, that are otherwise lawful and consistent with the federal rules of evidence that do not treat such documents as creating, by themselves, binding requirements that do not already exist by statute or regulation.

The Justice Manual provision expanded on this by giving a few examples. One example it provided was the one in the Brand Memo. You can use guidance to establish scienter or knowledge of a party, with regard to the binding regulation or statute. Another was to stress that guidance documents can be probative evidence that a party has or has not satisfied professional or industry standards of practice related to the binding statutory or regulatory requirements.

So, for example, again, from kind of a line perspective, Opioids were a major policy initiative of the Trump administration and remain a major initiative of DOJ today. The Justice Manual provisions pointed out that certain guidance documents from HHS/CMS could demonstrate or be used as part of the evidence to demonstrate that a physician was not prescribing Opioids with a legitimate medical purpose under the CFR provisions. More generally, in healthcare, that same type of issue is relevant to medically reasonable and necessary practices, in regard to a lot of healthcare False Claims Act cases.

The memo also -- excuse me, not the memo -- the manual also pointed out that compliance with guidance was relevant when a party had falsely certified that it would comply with a guidance document in a government contract. The contract there being the binding document, and not the guidance itself.

The final version of the Justice Manual stated that it fully implements, clarifies, and supersedes prior department memoranda on this topic, which, presumably, from our point of view on the line, was the Brand Memo, as it was the most recent and most specific pronouncement on this matter, particularly with regard to ACE cases.

Fast forward three years and you get the Garland Memo. The Garland Memo, again, starts with the same basic premise that guidance documents do not have the force and effect of law, and do not bind the public and are not treated as binding on the courts. The departure from the Sessions and Brand memos, structurally, begins with a statement of what guidance documents can do. Attorney General Garland notes that they can advise the public on how an agency understands and is likely to apply its binding law, and that they can comply legal requirements to make them more accessible to the public, among other things.

The memo then goes on to rescind the Sessions and Brand memos. It says, as Jesse alluded to, that they were too restrictive, discouraged the development of valuable guidance, and have generated collateral disputes that otherwise hampered department attorneys in conducting litigation. Attorney General Garland then instructed the department to initiate the process to revise the Justice Manual to be consistent with this memorandum. And, as I'll get to in a bit, I think that's really the $64 thousand question, from an ACE perspective, in particular, is what does that mean, with regard to the guidance that was in Section 1-20.

The Garland Memo stated a series of principles for the use of guidance documents going forward, among them that DOJ guidance documents should be drafted with the recognition that they do not bind the public, department guidance should be clear, transparent and accessible to the public. And, as it relates to litigation, the guidance documents are not the basis of a department action, but may be used in any appropriate and lawful circumstance, including when it may be entitled to deference or carry persuasive weight. This is where the Kisor position comes in.

So what are the practical results of these documents to date? Well, as far as the Garland Memo goes, the initial final rules for 20 CFR Sections 50.26 and 50.27 have been revoked. DOJ described them as overly prescriptive. And DOJ noted that it received fewer than ten substantive comments during the 30-day public comments period on those regulations.

Section 1-19 of the Justice Manual, which I haven't referenced yet, is still there. And it basically states, again, the legal precepts of the Sessions Memo. It states that agency guidance documents may not be used to substitute for regulation. And it states that department components may not issue guidance documents that purport to create rights or obligations binding outside of the executive branch.

While that is still there, Section 1-20 of the Justice Manual is gone. I took a look, actually, one day, after I was asked to do this panel, and noticed that it had disappeared in its entirety. That was the section that had clarified/superseded — whatever language you want to use — the Brand Memo. So, with that history — again, maybe looking at a more micro level from my perspective as a line attorney when I was at DOJ — what kind of change does the Garland Memo bring?

Well, on guidance documents, generally, the Garland Memo acknowledges and adopts the general legal principle set forth in the Sessions and Brand memos that guidance documents do not create binding law in and of themselves. That does not change much in the sense that that general proposition that subregulatory guidance is not a replacement for statutes and regulations is consistent with the case law that was in place before the Garland Memo was issued. Of course, a lot goes in the details of how that is used by DOJ and by other agencies, but the general legal principle remains the same.

That said, the Garland Memo certainly changes the philosophical approach to guidance documents. Whereas the Sessions and Brand memos set a baseline of limitation on the use of guidance, the Garland Memo seems to favor a more case-by-case approach based on applicable law, including the application of Auer deference, as discussed in Kisor, and seems to very much more take a discretionary approach to this. "We're DOJ, we're lawyers, we will look at this on a case-by-case basis, and we will do the right thing under the law for that case."

On the issuance of guidance documents in ACE cases, which is more my focus, I wrote an article a few months ago proposing that all of this — particularly the back and forth over the Brand Memo and the Justice Manual provisions — turned out to be something of a tempest in a teapot, as it related to ACE cases, that, as a practical matter, nothing really changed from the pre-Sessions Memo practice. But that does depend, in part, on what exactly you're comparing, where that baseline is.

The Garland Memo is certainly a departure in philosophy and overall approach from the Brand Memo, akin to its departure from the Sessions Memo. The Brand Memo certainly reads more restrictively, and, arguably, limited the use of guidance documents on an evidentiary level beyond the Auer deference issue.

But the Garland Memo does not seem to travel as far from the Justice Manual's former Section 1-20 as it does from the Brand Memo. The Justice Manual adopted the legal framework of the Sessions and Brand memos, but describes some specific instances where guidance documents had evidentiary value, short of being binding law in and of themselves.

The final provision indicated that it was a clarification of the Brand Memo. And if that's the case, maybe the leap from the Brand Memo — as it would have been applied over time — to the Garland Memo, is not quite as big as it may seem for most ACE cases. In other words, maybe the actual number of ACE cases that are actually going to be affected by the difference between the Garland Memo and the Justice Manual provisions of the Brand Memo -- that number of cases may not be as large as once might think on the surface.

      It's difficult to know, because, as Jesse indicated, the Brand Memo and the Justice Manual regulations were in place for a relatively short period of time. So there's some guess work to be done here. But maybe the difference, ultimately, akin to what Chief Justice Roberts argues in his Auer concurrence, is maybe — or, excuse me, in his Kisor concurrence about Auer — maybe that difference isn't as big as it appears on the surface.

      That said, again, from a line perspective, the Brand Memo did force attorneys at Justice to look carefully at guidance documents and how they were using them in the context of their enforcement cases, particularly in the false claims act context. And making that analysis more of a focus for trial attorneys and line AUSAs may have significant practice effects for ACE investigations and ACE cases going forward, even post-Garland Memo, in my opinion.

      I think, again, though, what comes next is ultimately going to answer the question of how important the Garland Memo is, in the context of civil enforcement cases. What does Section 1-20 get replaced with? Does the new Justice Manual provision set any limits? Is there a new Justice Provision Manual at all, or does this just get dropped? And if this just gets dropped, then what real guidance is there? And maybe that actually may end up being the most important difference, is that there are no written guideposts that are placed.

And you basically end up with a situation where the guidance at issue in any given case is looked at on a case-by-case basis without a policy that is written in such a way that there's some predictability there. That may ultimately be the difference, is that you end up in a situation where you're just looking at court law in any given case to determine what is admissible for what purpose.

Hon. Beth A. Williams:  Well, thanks so much, Chris. And I think that last point is very well noted. The regulations that the last Department of Justice put were rescinded recently, and they have not been replaced with anything. They were just rescinded. So it is an open question what will happen next.

      Jesse, now I'm going to give you a couple minutes to respond to Chris. And, in your response, I wonder if you could also address the Garland memo criticisms of the Session and Brand memo that Chris mentioned. First, that they're overly restrictive. Second, that they've discouraged the development of valuable guidance. And, third, that they've generated collateral disputes and otherwise hampered department attorneys when litigating cases. What do you make of those criticisms?

Jesse Panuccio:  Well, thanks for asking. And those were great comments, Chris, and very helpful to add sort of an on-the-ground perspective from someone who had to actually deal with and implement policy changes. And that's true of the Sessions and Brand memos, but also any changes and things that came before. How this actually works out on the ground is an important point. And I think -- I'll just add, part of that process of going from the general principles stated in the Brand Memo to policy that was going to be put in the Justice Manual, many of those examples making clear when and how you can use a guidance document to show scienter, that's important work. That kind of sort of washes out when you do a careful vetting and you talk through it and you come with, again, what I said, ultimately, although I may have disagreed with some things that were lost in particular, came up with a pretty good, well-vetted, broadly agreed-upon Justice Manual provision. That's important work. And that's the way good internal agency policy-making should happen, which -- I'll get to that. That leads to the second point I wanted to make in response or amplification to what Chris said.But the first point is this: Chris noted that the Garland recission memo restates that guidance documents don't create binding law.

      But the question is whether that sort of airy statement of principle is actually going to be implemented in a serious way. And, of course, the rest of the Garland Memo says the department should go back to the traditional way of relying on and using guidance documents, and it can specifically use guidance documents in court, as to judicial deference to guidance documents.

What AG Garland is referring to there is Auer deference. And Auer deference, by definition, allows agencies to make law through guidance documents, because a regulation is ambiguous. And the meaning of it needs to be decided by the court. And if the agency has interpreted the meaning in a guidance document, and the court applies Auer deference, the court is saying, "Even if it's not the most reasonable, or the best interpretation, we will defer to your pronouncement of the law that did not go through notice-and-comment rulemaking, or congressional lawmaking, for that matter."

      And so, in practice, using Auer deference, using the agency's traditional view of guidance documents, absolutely is relying on guidance documents to have binding affective law, regardless of whether that statement is at the beginning of the Garland Memo. So that's one point.

     My second point that I'll make is -- and Beth, this goes to what you asked, which is, what do I make of the criticisms in the Garland recission memo of the prior memos. And the answer is not much. Because, look at what those criticisms are. They're sort of broad-based criticisms with no examples. They have no specificity. So, whereas we had this process that Chris outlined, where multiple U.S. Attorneys, career officials, line officials, the DAG's office, the Associate's Office, the AG's Office, went through a year-long process of refining and vetting and debating and going back and forth on what would go into the Justice Manual. And you had these very particular, well-thought-out examples of when guidance could be used.

      The Garland Memo doesn't go through any of that. It doesn't say what was wrong with any of those of those examples. It doesn't get particular, any particular critique about what was wrong with that process of debate and refinement. It just says broadly, "Well, it's too restrictive." And it's hampered agency action. To me, when you get criticisms like that that have no specificity, that are simple broadsides against the policy, it is some suggestion that the recission or the new policy is not based in any well-founded or logical or rule-of-law principle. It is simply about asserting power.

      And that's what -- again, I said this really boils down to two different visions of government. And, at the end of the day, I think the Garland Memo, the Biden EO, are really statements about the raw power that the administrative state ought to be able to exercise whenever, wherever, and however it wants.

      And then my third point would just be to comment on what Chris said about how is this all going to play out, what changes are really there. In some ways, it's too early to know. And in other ways, as I said in my comments, the principles of the Sessions and Brand memos and even what got into the Justice Manual, in many ways did not have a long time to take root. This takes years to get these policies to really play out in cases which unfold over years, and the training of attorneys over years. And they were quickly gone almost as soon as they were in place with the election of President Biden.

      But if you want to see how the Justice Department is going to go forward in using guidance, one telling example will be these task forces they've announced, these various task force and priorities in pursuing pandemic fraud. Let's see what these prosecutors say and rely on, in terms of how they prove out the fraud. Are they relying on congressional statutes and actual agency rules, or are they going to rely on that ever-changing 45-page Q&A document that came out on the PPP Loan Program? I think that could be a very telling example of the agency's position on guidance, going forward.

Christopher Sabis:  Beth, can I respond to one thing that Jesse said, just briefly, with regard to those -- the criticisms that the Garland Memo levied. Focusing on the third one, that they'd generated collateral disputes, the restrictions had generated collateral disputes and otherwise hampered department attorneys and litigation. I can provide at least one specific example of that. And, again, this is that kind of ground-level view.

But within maybe less than days, maybe hours of the Brand Memo being issued — and I did not experience this personally with my cases, but I know and read articles and talked to people involved, because I knew them and worked with them — instances where attorneys at DOJ were contacted by attorneys who, despite the fact that the Brand Memo said, "Look, this does not create substantive rights. This is an internal policy. It can't be cited by parties," where lawyers in False Claims Act investigations were raising their hands and going, "Hey. You cited to this guidance document from HHS. You cannot use that at all for any purpose," basically, with the one exception of scienter under the language of the Brand Memo.

And that actually got into situations where they went public. And there were articles in Law360 highlighting these types of disputes. And so, in that sense, now, whether you believe that type of hampering is justified or not is another question. But the hampering certainly was there.

      One effect that had was that it, again, kind of emphasized this memo and, again, kind of got into, I think, a lot of litigator's heads in the department this framework of analyzing how you're using subregulatory guidance, which, like I said, I think is something that's going to have some impact going forward, even after Garland. But it also, I think, highlighted that, as Jesse says, you can bicker here and there about some of the things that were in the Justice Manual provisions, but, ultimately, I agree that they were well-thought-out, well-reasoned and very helpful moving forward in finding the right policy to use.

But they were certainly, at least in sounding, more expansive than the Brand Memo. And so going through that process up front, as opposed to the issuance of the Brand Memo when it issued, might have been useful to avoid that type of hampering of department attorneys in their litigation process.

Hon. Beth A. Williams:  I'd like to turn it for a minute just to the transparency issue, briefly. So, as you may know, one of President Trump's executive orders established -- required each agency to set up guidance document public portals. And the idea behind that was that if the agencies are going to be relying on these agency documents, guidance documents, then they should be available to the public and easily available to the public.

      So the Garland Memo maintains the portal. And it encourages department components to post their guidance on the portal, but it doesn't require them post it. I think the exact quote was, "In addition, whenever practicable, department components should continue posting materials to the department's online guidance portal.

      The Trump administration had said if it's not on the portal, we can't rely on it in litigation. The government will not be able to rely on anything that's not on the portal. So, the question is, does the new policy give any meaningful incentive to ensure that there's fair public access to the guidance, kind of to the point that Jesse was making with regard to some of these memos just floating around.

Jesse Panuccio:  Chris, do you want to take that first?

Christopher Sabis:  Sure. I mean, again, I think it may be a little early to tell. We have to see if the regulations are replaced with anything. The general policy statements in the Garland memos do seem to support that type of transparency. There's that "whenever practicable" kind of hedge, but that "wherever practicable" type of hedge was also in the Brand Memo when it talked about cases currently pending that may be affected by the Brand Memo's policy when it was issued, as opposed to future cases.

And so I don't see that carveout in and of itself as particularly unique. I think it just depends how it's actually done in practice, moving forward. As I said before, I was thrilled when the Justice Manual was put together and everything was findable and accessible. And I was able to go online a few days ago and find out Section 1-20 was gone. So I'm all in favor of the transparency. And I think, on a theoretical level, I'm guessing everyone would say that. I think it's just the proof's going to be in the pudding.

Jesse Panuccio:  Well, Beth, I guess my response would just be why not make it mandatory for every guidance document? I mean, that's the way it was. What are they afraid of? What are they afraid of the public knowing? Why not -- if the guidance document is meant to bind the public, then why not insure that, in advance, that document was thoroughly public, findable, indexed, and, therefore, accountable? And this goes back to my general critique that when you look at the actual criticisms, they're really broadsides.

Because the principle being enunciated in the Biden executive order -- and it's not shy about this, it is what the Biden executive order says, which is the federal government needs -- the federal executive branch needs flexibility in all things, in all circumstances, to be able to do whatever it wants, whenever it wants. And so we're not going to be troubled by any pesky requirement that in all instances we need to be public with our guidance. And I think that's the basic -- not a debate between Chris and I here, but a debate between what was going on in the Trump administration and what's going on now in the Biden administration.

Hon. Beth A. Williams:  So, we've got a question from our audience, Jeffery Wood, which is, "Is there much decisional law, SCOTUS or otherwise, on the legal status of guidance? As a tax specialist, I could see safe harbor provisions as analogous. But, jurisprudentially, is guidance actually law? Guidance seems to be a way for a lawmaker to try to have its cake and eat it too, apart from the APA separations of powers issue." Do you want to respond to that?

Christopher Sabis:  Jesse, do you want to go ahead?

Jesse Panuccio:  Yeah. I can take that one first, if you want. So I think it depends on what context you're talking about. So the now-deleted Justice Manual provisions are a good example. Certainly, if you're showing scienter, there's plenty of caselaw that says a guidance document that points somebody to a law or regulation can be used to show scienter. But that doesn't turn the guidance documents to law. That helps prove an element of a crime.

But, in terms of the guidance documents establishing independent law, again, it depends on what we're talking about. There's a lot of caselaw out there. But where this really crystalized recently was in the use of Auer deference and what the Kisor case did. Just to restate that, Auer deference says you have a law from Congress, then you have the ability of the agency to go through notice-and-comment rulemaking, which also becomes binding law. But sometimes that notice-and-comment rulemaking is itself ambiguous.

And then the question is, you go to court and one side is saying it means "X", and the government is saying it means "Y". Normally, when you have an ambiguous provision, the judge decides, the judiciary decides what it means. But in the case of Auer deference, the judiciary says we are going to defer to the executive branch's interpretation of that ambiguity, especially if it's in a guidance document. And, to me, when you get to the heart of it, what does that mean, is essentially giving the force of law to a guidance document. And so that's what the whole fight in Kisor was about, both internally, at DOJ and then, ultimately, at the Supreme Court.

Hon. Beth A. Williams:  Chris, to you.

Christopher Sabis:  Yeah. I mean I generally agree with the description. There's significant law out there admitting guidance documents for evidentiary purposes along the lines of what's in the -- what was in the Justice Manual provision. That, I don't think -- at least most of it wasn't particularly controversial. When it gets to the point of deference as a law, as opposed to evidentiary issues, I don't presume to sum it up better that Justices Kagan and Gorsuch did in Kisor, the debate there about, for lack of a better descriptor, where to draw those lines.

And, as I alluded to in my initial comments, I think Chief Justice Roberts has an interesting statement in his concurrence, where he talks about the distance between those places maybe not being as great as one might think on the surface. I know I saw a comment pop up earlier that someone disagrees with that. And I'm sure Justice Gorsuch and Justice Kagan would disagree as well. But, again, from my point of view on a kind of practical case-by-case, day-by-day basis, as a line AUSA, I would tend to say that I agree with that, at least to a degree.

Maybe it's just that -- at the risk of sounding corny, we're told to do justice. We were in the Justice Department. And I always felt like I had that freedom and that flexibility. And so I wasn't looking to bring borderline cases where this type of thing became an issue. And in most of my cases, maybe all of them, it was not. And so, again, on that practical level, is this affecting that five percent of close cases? And is it really bleeding into that 90, 95 percent, at least from an ACE perspective, that are not determined in that way? Again, to me the practical difference may not be as large.

Hon. Beth A. Williams:  Okay. So next question from the audience. This is from Ross Stovel. "What, if anything is forthcoming or possible, as to Chevron or other case lines that might provide remedies to the Garland overreach?" 

     I read this question as asking, is there, would there be some court remedy if the federal government executive branch is misusing guidance documents?

Christopher Sabis:  Well, they could revisit Kisor, first of all. The Court could certainly do that, revisit Kisor, revisit any of those matters. Theoretically, anyway, if you follow Justice Kagan's opinion, part of the check is already still there within the Court. It's ultimately the final decision is up to the Court. And deference to the agency requires a number of steps that Justice Kagan goes through in that opinion.

And so it's certainly not like a court at this point could not apply that analysis in a way that would provide a check in a borderline situation, or a situation where the department and the views of the court, or the agency abused its privileges under rulemaking and under Auer.

      But my initial reaction is just the Court can always revisit this. It was asked to revisit Auer and overrule it in Kisor. It decline to. But that doesn't mean it can't do it later.

Jesse Panuccio:  I'll just add, we're talking about Chevron versus Auer deference. Chevron is typically deference to an authoritative interpretation that is promulgated through notice-and-comment rulemaking. I believe the Court has a case up on the docket this year that may deal with that again. And they always have the opportunity, because Chevron comes up all the time. So, yes, at any time, I think you could have the Supreme Court revisit Chevron. And, of course, if they revisit that, sort of derivatively, you'd think they'll revisit Auer.

My general take on it is, boy, if we couldn't even get the department to take the position that Auer should go away in the last administration, and the Supreme Court to take that position, I think the deference doctrines, for better or worse, are here to stay. And so I would not look to the judiciary to reign in the executive in any significant way on the use of guidance documents — and that was sort of the principle that I talked about in the beginning — nor should it have to.

It ought to be that the executive branch is able to control itself, and that it is able to put up some of its own guardrails, especially because we have such a vast administrative state now. If the executive branch is going to be delegating so much lawmaking power, it ought to have some of its own internal checks. Frankly, that's what the APA is for, at least to some minimal extent.

But the problem with guidance is it ignores even the APA. So you lose those checks as well. So every time there's another sort of overlay, executive branch moves out of that overlay. And so this whole thing, this whole project to get regulatory reform was to try to bring it back to some kind of controlled situation.

Christopher Sabis:  And I agree with Jesse with regard to Chevron. With regard to Auer deference and Kisor, I'm not quite as sure. Justice Gorsuch, I believe, referred to Kisor as a stay of execution. And I am by no means a Supreme Court expert, but I tend to think that Auer deference in the medium to long term is on much shakier ground than Chevron deference.

Hon. Beth A. Williams:  So in the last minute, I will ask you just for a factual question in predictions. So, has there been an increase in the issuance of guidance documents since the Garland Memo on July 1 of last year? And, if not yet, do you think there will be?

Christopher Sabis:  Please, Jesse.

Jesse Panuccio:  Well I won't claim to have done any empirical analysis. And I think that kind of analysis, because the Sessions and Brand memo principles, especially once they were reduced to regulation and justice memo provisions, were in place for such a short time and that time was interrupted by the pandemic, where, as I said, a lot of those principles sort of went out the window for a time in many agencies, it would probably be impossible to do a good comparison. I think you probably would have needed a longer term. So I don't know.

But I will say sort of descriptively, or prescriptively, I guess, there's no -- I don't think the current administration is going to feel any more constrained than did the Obama administration in using guidance in announcing programs via blog post or in a speech or other means. I just think that is the general orientation of the folks leading the government now. And that's their view of how the administrative state should work.

Hon. Beth A. Williams:  Any predictions, Chris?

Christopher Sabis:  I don't see -- again, I don't have any empirical data. But I don't see the amount of guidance increasing. I think that, as someone who kind of saw these things as they came through, I didn't see much hesitancy to issue guidance at any point while I was at Justice. I do think that good agencies have an interest. They may not always get it right, lord knows, but I do think they have an interest in their guidance documents being clear and public, in most instances, and in providing proper input to the public. And so I don't expect to see a massive uptick.

Hon. Beth A. Williams:  Great. Well, thank you. We've reached two o'clock, so I just want to thank Jesse and Chris so much. We had really wonderful panelists. And, again, these are the folks who were on the ground and in the trenches doing this work, and now, responding to this work in private practice. So really wonderful to have you both here. Thank you again. Thank you to The Federalist Society and to everyone else who listened. Have a great afternoon.

Christopher Sabis:  Thank you.

Jesse Panuccio:  Thanks all.

Ryan Lacey:  On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We welcome any further feedback by email at [email protected]. As always, keep an eye on our website for emails and announcements about upcoming Webinars. Thank you all for joining us today. We are adjourned.

Jesse Panuccio:  Thank you.

Ryan Lacey:  Thank you.

Christopher Sabis:  Thanks.

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.