Guidance Isn't Enough For DOJ

As we reported here and here, the DOJ has been keen on limiting the use of guidance documents to govern its prosecution decisions. That concept has been enshrined in the first chapter of the DOJ's Justice Manual. New Section 1-20.000 sets forth the Department's view. It begins, "Criminal and civil enforcement actions brought by the Department must be based on violations of applicable legal requirements, not mere noncompliance with guidance documents issued by federal agencies, because guidance documents cannot by themselves create binding requirements that do not already exist by statute or regulation." The DOJ will no longer consider a party's failure to comply with guidance documents as a violation of a statute or regulation, but will "continue to rely on agency guidance documents for purposes, including evidentiary purposes that are otherwise lawful and consistent with the Federal Rules of Evidence." So, for example, "[w]here a guidance document describes a