A. General Principle: A monitor must be qualified for the position based on the facts and circumstances of the case and the intended scope and duties of the monitorship. The selection process must be transparent, merit-based, and conducted in a manner free from conflicts of interest. Monitor selections shall be made in keeping with the Department’s commitment to diversity and inclusion, and prosecutors should consider monitors from a diverse set of backgrounds.

The Department should employ consistent and transparent procedures for selecting monitors, pursuant to policies adopted by each component and office. [1] Every office or component involved in corporate criminal resolutions must adopt a consistent and predictable process for selecting monitors. [2] These component-specific selection process must, as a baseline, be designed to: (1) select a highly qualified and respected person or entity based on suitability for the assignment and all of the circumstances; (2) avoid potential and actual conflicts of interests, and (3) instill public confidence.

Monitor candidates and prosecutors who participate in the selection process must establish the absence of potential and actual conflicts of interest. Monitor candidates may not have any interest in, or relationship with, the corporation or its employees, officers, or directors that would cause a reasonable person to question his/her impartiality. Government attorneys must comply with the conflict-of-interest guidelines set forth in 18 U.S.C. § 208, 5 C.F.R. Part 2635, and 28 C.F.R. Part 45.2. If any government attorney has, or appears to have, a potential or actual conflict, that attorney must not participate in the selection process.

Monitor selection processes must be performed by a standing or ad hoc committee within the applicable office or component, which shall include as a member an ethics official or professional responsibility officer from that office or component. Every selection process shall include a written memorandum confirming that no conflicts exist in the committee prior to the selection process or as to the monitor prior to the commencement of the monitor’s work.

The Office of the Deputy Attorney General must approve the monitor selection for all cases in which a monitor is recommended, unless the monitor is court-appointed.

B. Comment: The United States Attorney or Department component head shall provide a copy of any agreement imposing a monitor to the Assistant Attorney General for the Criminal Division at a reasonable time after it has been executed. The Assistant Attorney General for the Criminal Division or the CRM Standing Committee Chair shall maintain a record of all such agreements. To the extent possible, in the interest of transparency and the edification of the public, the identity of the monitor selected in each case shall be made available on the respective component’s or office’s website.

[added March 2023]

[1] Additional guidance is contained in the Memorandum of Deputy Attorney General Lisa O. Monaco, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” Sept. 15, 2022.

[2] Components’ monitor selection processes must be approved by the Office of the Deputy Attorney General. This requirement does not apply to cases involving court-appointed monitors, where Department attorneys must give due regard to the appropriate role of the court and/or the probation office.