A Deep Dive Into the DOJ's 2026 Priorities: Statutory Authority, Precedent, and Shifting Legal Standards

Key Takeaways

• The DOJ's 2026 priorities emphasize a marked expansion of prosecutorial discretion under 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 1349 (conspiracy to commit fraud), signaling a shift toward "enterprise liability" theories that lower the evidentiary bar for charging multiple defendants in complex white-collar cases.
• New internal DOJ guidance, issued under Attorney General Order 2026-03, directs prosecutors to prioritize cases involving "systemic economic harm" defined by aggregate loss thresholds rather than individual victim impact, a departure from the traditional reliance on 18 U.S.C. § 3663A (Mandatory Victims Restitution Act) factors.
• The DOJ's renewed reliance on the "honest services" fraud theory under 18 U.S.C. § 1346, after years of judicial narrowing post-McDonnell v. United States (2016), indicates a strategic pivot toward state and local corruption cases, leveraging the "stream of benefits" test that lower courts have inconsistently applied.
• Federal Rule of Criminal Procedure 16 is being reinterpreted internally to require broader reciprocal discovery from defendants in "complex economic crime" cases, creating significant strategic implications for defense counsel regarding the timing and scope of expert disclosures and affirmative defenses.