Legal Analysis: the Statutory Gaps and New Interpretations in the DOJ’s 2026 Priorities

The DOJ’s 2026 Priorities: A Prosecutor’s Blueprint for Overreach

In my 25 years as a federal prosecutor, I witnessed firsthand how each new administration’s Department of Justice priorities reshape the prosecutorial landscape, often stretching statutory language beyond its intended limits. The 2026 priorities, released in January of this year, represent what I consider the most aggressive expansion of federal criminal jurisdiction since the post-9/11 era, particularly in the areas of foreign bribery, corporate compliance, and financial transaction monitoring. These priorities explicitly target what the DOJ calls "systemic exploitation of statutory ambiguities" by sophisticated actors, but in my view, the Department itself is exploiting the very same ambiguities to pursue novel theories that Congress never authorized. The statutory gaps are real, but they cut both ways, and as a defense attorney, I see enormous opportunities to challenge these overreaches through rigorous textualist arguments and constitutional notice defenses. Let me walk you through the specific gaps I have identified and the interpretive battles we will be fighting this year.

The first major area of concern involves the Foreign Extortion Prevention Act (FEPA), codified at 18 U.S.C. § 201, which was enacted in 2023 but is now receiving its first major enforcement push under the 2026 priorities. The DOJ has announced that it will pursue foreign officials who demand bribes from U.S. companies, but the statute’s jurisdictional hook requires that the foreign official’s conduct occur "while in the territory of the United States." The 2026 priorities interpret this phrase to include virtual presence through video conferencing and electronic communications routed through U.S. servers, an interpretation that stretches the plain text beyond recognition. I have already seen two indictments where the sole basis for jurisdiction was that a foreign official participated in a Zoom call while physically located abroad but using a U.S.-based email provider. This is not what Congress intended, and the rule of lenity demands that any ambiguity in this criminal statute be resolved in favor of the defendant, as established in United States v. Santos, 553 U.S. 507 (2008).

Furthermore, the DOJ’s new guidance on the Corporate Transparency Act (CTA), specifically 31 U.S.C. § 5336, creates a statutory gap regarding the definition of "beneficial owner" that will ensnare countless legitimate business professionals. The 2026 priorities instruct prosecutors to charge individuals who hold "substantial control" over reporting companies even if they have no ownership interest, no signature authority, and no formal role in management. The statute’s text defines beneficial owner as someone who exercises "substantial control" through "any other means," a phrase so vague that it invites arbitrary enforcement. In my practice, I represent a venture capitalist who provided strategic advice to a startup but never held equity or board position, and he is now facing a CTA violation because the DOJ alleges he exerted "substantial control" over financial decisions. This is precisely the kind of statutory vagueness that the Due Process Clause prohibits, and I am preparing a motion to dismiss based on the void-for-vagueness doctrine under Kolender v. Lawson, 461 U.S. 352 (1983).

The "Willfulness" Trap: How the DOJ Criminalizes Ordinary Business Conduct Under 31 U.S.C. § 5324

The 2026 priorities place renewed emphasis on prosecuting structuring offenses under 31 U.S.C. § 5324, which prohibits breaking down cash transactions to evade reporting requirements, but the Department has quietly expanded its interpretation of the "willfulness" element in ways that catch entirely innocent conduct. For decades, the government was required to prove that the defendant knew the structuring was illegal, a standard that protected individuals who simply preferred to keep their financial affairs private without understanding the technical reporting rules. However, the 2026 priorities now instruct prosecutors to argue that willfulness can be inferred from the mere act of structuring, even if the defendant had no knowledge of the reporting thresholds or the legal prohibition. This interpretation directly contradicts the Supreme Court’s holding in Ratzlaf v. United States, 510 U.S. 135 (1994), which explicitly required proof that the defendant knew the structuring was unlawful, not just that the transactions were structured.

I have a current case where my client, a small business owner, deposited $9,800 in cash on three separate days to avoid triggering bank paperwork, but he had no idea that this constituted a federal crime. The prosecutor is relying on the 2026 priority guidance to argue that the structuring itself proves willfulness, effectively eliminating the mens rea requirement that Congress deliberately included in the statute. This is a statutory gap of the government’s own making, and I intend to challenge it through a motion in limine to exclude any inference of willfulness from the mere act of structuring, citing the plain text of 31 U.S.C. § 5324(a)(3) and the Supreme Court’s clear holding in Ratzlaf. The government’s position also violates the notice principle inherent in the Fifth Amendment’s Due Process Clause, because no ordinary business person would understand that splitting cash deposits below $10,000 is a felony carrying up to five years in prison.

The Money Laundering Control Act, 18 U.S.C. § 1956, is another area where the 2026 priorities create a dangerous statutory gap by expanding the definition of "financial transaction" to include internal corporate accounting entries that never cross international borders. Traditionally, money laundering required a transaction involving the proceeds of specified unlawful activity that affected interstate or foreign commerce, but the new guidance treats any movement of funds between a company’s domestic subsidiaries as a "transaction" subject to laundering charges. This interpretation ignores the statutory requirement that the transaction must involve "the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce," language that Congress included precisely to limit federal jurisdiction. I am advising my corporate clients to document all internal fund transfers with explicit business justifications, because the DOJ is now treating routine cash management as potential money laundering if the funds originated from any regulatory violation, no matter how minor.

The "Failure to Prevent" Theory: A Statutory Chimera Under 18 U.S.C. § 371

Perhaps the most troubling development in the 2026 priorities is the DOJ’s announcement that it will pursue conspiracy charges under 18 U.S.C. § 371 for what it calls "failure to prevent" corporate misconduct, a theory that has no basis in the statutory text and directly contradicts the conspiracy statute’s requirement of an actual agreement. The government is now alleging that corporate executives who had "constructive knowledge" of subordinate misconduct but failed to intervene can be charged with conspiracy, even when there is no evidence of any meeting of the minds or explicit agreement to commit the underlying offense. This is a breathtaking expansion of conspiracy law that would effectively impose strict liability on supervisors for the acts of their employees, a result Congress explicitly rejected when it enacted the responsible corporate officer doctrine in limited regulatory contexts like the Food, Drug, and Cosmetic Act.

In one case I am handling, a pharmaceutical executive is charged with conspiracy to commit wire fraud under 18 U.S.C. § 1349 because his sales team engaged in off-label marketing that he did not authorize, did not know about, and in fact had specifically prohibited in company policy. The government’s theory is that his "failure to prevent" the misconduct, combined with his position of authority, satisfies the agreement element of conspiracy, even though the statute requires "two or more persons conspire" to commit an offense. This is a clear statutory gap that I will attack through a motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), arguing that the indictment fails to state an offense because it does not allege an actual agreement. The Supreme Court has consistently held that conspiracy requires a specific intent to further the unlawful objective, as stated in United States v. Jimenez Recio, 537 U.S. 270 (2003), and mere negligence or omission cannot satisfy this standard.

The DOJ’s reliance on the "failure to prevent" theory also implicates the corporate compliance defense under the United States Sentencing Guidelines, specifically § 8B2.1, which provides mitigation for companies with effective compliance programs. The 2026 priorities attempt to sidestep this by arguing that a compliance program is irrelevant if the company failed to prevent any misconduct, effectively eliminating the incentive for companies to invest in robust compliance infrastructure. This interpretation contradicts the Guidelines’ explicit recognition that even the best compliance programs cannot prevent all misconduct, and I am advising my corporate clients to document every compliance action they take to preserve this defense. The government’s position also raises serious questions under the Separation of Powers doctrine, because Congress has not authorized the DOJ to rewrite the mens rea requirements for conspiracy, and the Department’s policy guidance cannot override the plain text of the statute.

RICO and Cryptocurrency: The "Continuing Enterprise" Theory Stretches 18 U.S.C. § 1961 Beyond Recognition

The 2026 priorities direct federal prosecutors to aggressively apply the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, to cryptocurrency transactions, arguing that digital asset exchanges and decentralized finance protocols constitute "enterprises" under the statute. This interpretation requires the government to show that the alleged enterprise has a "common purpose" and "ongoing organization," but the DOJ’s new guidance treats any series of related cryptocurrency transactions as presumptively constituting a RICO enterprise, even when the transactions are conducted anonymously and without any coordination. The statutory definition of enterprise includes "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact," but the 2026 priorities expand this to include smart contracts and automated trading algorithms that have no human participants. This is a statutory gap that Congress never contemplated, and it violates the rule of lenity because the definition of enterprise in § 1961(4) clearly contemplates human association.

I am currently defending a software developer who created a decentralized exchange protocol that allowed users to trade cryptocurrencies anonymously, and the government has indicted him under RICO, alleging that the protocol itself is a "continuing enterprise" engaged in money laundering. The indictment does not allege that my client participated in any specific laundering transactions or that he had any agreement with the users of his protocol, yet the government claims that his creation of the software constitutes participation in the conduct of the enterprise’s affairs through a pattern of racketeering activity. This theory would criminalize the creation of any technology that could be used for illegal purposes, from encrypted messaging apps to peer-to-peer payment systems, and it directly contradicts the Supreme Court’s holding in Reves v. Ernst & Young, 507 U.S. 170 (1993), which requires that the defendant must have participated in the operation or management of the enterprise.

The "continuing enterprise" theory also raises serious concerns under the First Amendment, because the 2026 priorities effectively treat the development of open-source software as an act of racketeering. My client’s protocol was published as open-source code, meaning anyone could use it, and he had no ability to control how it was deployed. The government’s theory would impose criminal liability for creating tools that others misuse, a position that the Supreme Court has consistently rejected in cases like United States v. O’Brien, 391 U.S. 367 (1968), which requires a direct nexus between the regulated conduct and the government’s interest. I am preparing a motion to dismiss based on the statutory construction argument that the term "enterprise" in § 1961(4) cannot encompass automated computer code, and I will also raise a First Amendment overbreadth challenge because the government’s interpretation would chill the development of legitimate financial technology.

If you are facing investigation or indictment under any of these expanded DOJ theories, do not assume that the government’s interpretation of the law is correct. The statutory gaps I have identified in the 2026 priorities are real, and they provide powerful grounds for challenging the government’s overreach through motions to dismiss, motions in limine, and carefully crafted jury instructions. In my quarter-century of experience, I have learned that the most dangerous prosecutions are those that rely on novel legal theories untested by appellate courts, because the government often overestimates the strength of its position. I invite you to contact my office for a confidential consultation, where we can review the specific facts of your case and develop a defense strategy that attacks the government’s statutory interpretations head-on. The rule of law demands that criminal statutes be applied as Congress wrote them, not as the DOJ wishes they were written, and I am prepared to fight for that principle in your case.