Bass, Berry & Sims attorney Ben Schrader authored an article for Law360 providing insight from his time as an assistant United States attorney (AUSA) with the U.S. Department of Justice. Specifically, he provided perspective on how traditional incentives for federal criminal defendants to cooperate with the government are eroding with the declining number of experienced AUSAs.
Ben highlighted how the decrease could weaken the government’s ability to conduct complex investigations and engage meaningfully with cooperators, while recently adopted amendments to the federal sentencing guidelines, including reductions for zero-point offenders and inflation-adjusted economic crime thresholds, are chipping away at the potential sentencing exposure for white-collar defendants.
Simultaneously, the significant increase in presidential pardons under the Trump administration, from 148 in the first term to 1,609 in the second, has both demoralized federal prosecutors and given defendants reason to believe that extrajudicial remedies may offer a better outcome than playing by the rules.
Together, these forces are quietly diminishing the longstanding appeal of cooperating, making it a less compelling choice for defendants who might now conclude that going to trial, waiting for a pardon, or pursuing other avenues for relief could yield comparable or even better results.
“For now, there are still career AUSAs and agents in the Justice Department who appreciate the value of cooperation,” said Ben. “But considering departures at the DOJ, the sentencing guidelines change, and the uptick in presidential pardons, there are fewer reasons for federal criminal defendants to, as we used to say in the government, join Team USA.”
The full article, “3 Factors Shifting Criminal Defendants’ Cooperation Decisions,” was published by Law360 on April 24 and is available online (subscription required).