A. General Principle: The nature and seriousness of the crime, including the risk of harm to the public from the criminal misconduct, are obviously primary factors in determining whether to charge a corporation. In addition, corporate conduct, particularly that of national and multi-national corporations, necessarily intersects with federal economic, tax, and criminal law enforcement policies. In applying these Principles, prosecutors must consider the practices and policies of the appropriate Division of the Department, and must comply with those policies to the extent required by the facts presented.

B. Comment: In determining whether to charge a corporation, prosecutors should take into account federal law enforcement priorities as discussed above and consult with the Criminal, Antitrust, Tax, Environmental and Natural Resources, and National Security Divisions, as appropriate. Specifically, prosecutors must be aware of the specific policy goals and incentive programs established by the respective Divisions and regulatory agencies.

For example, while it is generally proper for a prosecutor to consider the corporation’s pre-indictment conduct, e.g., voluntary self-disclosure, cooperation, remediation, or restitution, in determining whether to seek an indictment, see JM 9-27.230, many Divisions of the Department apply specialized policies to such considerations. For example, the Antitrust Division’s Leniency Policy, JM 7-3.300, is available only to the first corporation to voluntary self-disclose to the Antitrust Division and meet the policy’s requirements.

[updated March 2023]