Leveraging DOJ Policy 9-27.220 to Defend Against White-Collar Charges

When facing white-collar criminal charges, it’s crucial to understand that federal prosecutors are not only bound by the law but also by Department of Justice (DOJ) policies that guide their decision-making. One of the most significant policies in this realm is DOJ Policy 9-27.220, which directs prosecutors to pursue charges only when they believe there is sufficient evidence to sustain a conviction.

At National Security Law Firm, we understand that prosecutors are driven by a desire to win—and we leverage 9-27.220 to show them that pursuing charges against our clients is a battle they cannot win. Here’s how we use this policy to our clients’ advantage.

Understanding DOJ Policy 9-27.220

DOJ Policy 9-27.220, found in the Principles of Federal Prosecution, mandates that federal prosecutors should only initiate criminal charges if they believe:

  1. There is sufficient evidence to obtain and sustain a conviction under the applicable standard of proof (beyond a reasonable doubt).
  2. The prosecution would serve a substantial federal interest and aligns with the department’s enforcement priorities.
  3. There are no adequate non-criminal alternatives that would satisfy the government’s interests.

This policy acts as a safeguard against weak or speculative prosecutions and provides a critical opportunity for defense attorneys to challenge the government’s case early in the process.

How Defense Attorneys Can Use 9-27.220 to Their Advantage

1. Convincing Prosecutors They Can’t Win

Prosecutors prefer to pursue cases they are confident they can win. If we can demonstrate that the evidence against our client is weak, unreliable, or circumstantial, we create doubt about the likelihood of securing a conviction. Our strategy includes:

  • Exposing Gaps in the Government’s Case: We meticulously analyze the prosecution’s evidence and highlight inconsistencies, lack of intent, or alternative explanations that undermine their case.
  • Challenging Witness Credibility: White-collar cases often rely on cooperating witnesses who may have credibility issues. We emphasize these weaknesses to cast doubt on their reliability.
  • Using Expert Testimony: Bringing in financial experts, forensic accountants, and industry specialists to refute allegations and provide alternative interpretations of the evidence.

By systematically revealing these weaknesses, we force prosecutors to reconsider whether pursuing the case aligns with their mandate under 9-27.220.

2. Arguing That Prosecution Is Not in the Public Interest

Even if prosecutors believe they have sufficient evidence, they must also consider whether pursuing charges serves a substantial federal interest. Our defense team leverages this criterion by demonstrating that:

  • The Alleged Conduct Is Better Addressed Through Civil or Regulatory Means:
    Many white-collar offenses—such as regulatory violations or compliance failures—may be more appropriately handled through administrative penalties rather than criminal prosecution.
  • The Defendant’s Remedial Efforts:
    We highlight proactive measures taken by our clients, such as internal investigations, restitution payments, and compliance program improvements, to argue against the need for criminal charges.
  • Collateral Consequences:
    We emphasize the disproportionate impact of prosecution on the accused’s career, family, and employees, arguing that these factors outweigh the benefits of pursuing charges.

3. Offering Alternative Resolutions

In cases where avoiding charges entirely may not be possible, we use 9-27.220 to negotiate for alternatives that serve the government’s interests without a criminal conviction. These can include:

  • Deferred Prosecution Agreements (DPA): Allowing our clients to meet certain conditions, such as compliance reforms or monetary settlements, in exchange for case dismissal.
  • Non-Prosecution Agreements (NPA): Persuading the government that no criminal charges should be filed if corrective actions are taken.
  • Civil Settlements: Shifting the case toward civil resolution rather than criminal prosecution.

By positioning these alternatives as a win-win solution, we align with the prosecutor’s goal of resolving the matter effectively while avoiding a high-risk trial.

Building Leverage Through Early Engagement

Engaging with prosecutors early in the investigative process is key to leveraging 9-27.220 effectively. Our team takes an aggressive yet strategic approach to:

  1. Opening Dialogue with Prosecutors: We proactively present mitigating factors and challenge the government’s assumptions before they commit to filing charges.
  2. Submitting Persuasive Legal Briefs: Our attorneys craft detailed, compelling legal arguments that outline why prosecution would not be in line with DOJ guidelines.
  3. Using Public Relations Strategically: Highlighting positive contributions of our clients and reputational harm that would result from an unnecessary prosecution.

Conclusion: Making Prosecutors Think Twice

At National Security Law Firm, our approach is clear: convince prosecutors that pursuing charges under DOJ Policy 9-27.220 is a battle they cannot win. By strategically challenging the sufficiency of evidence, emphasizing alternative resolutions, and highlighting the public interest factors, we position our clients for the best possible outcome—whether that means getting charges reduced, dismissed, or avoided altogether.

Learn More About White-Collar Defense

For additional information and resources, including our blog articles featuring our best defense strategies and expert tips, visit our White Collar Investigation and Defense page.

Why National Security Law Firm?

At NSLF, our white-collar defense team is led by Dak Kees, a former U.S. Attorney for the Western District of Arkansas. With extensive experience overseeing high-profile federal cases, Dak brings insider knowledge to your defense. His leadership in white-collar fraud and national security cases gives NSLF a strategic advantage unmatched by other firms.

Having served as the United States Attorney for the Western District of Arkansas, Duane “Dak” Kees brings an unparalleled advantage to defending clients facing federal investigations and charges. A U.S. Attorney is the chief federal prosecutor for their district, appointed by the President and confirmed by the Senate, responsible for overseeing all federal criminal prosecutions and civil litigation within their jurisdiction. Dak’s leadership in this prestigious role provided him with in-depth experience managing complex cases involving white-collar crimes, national security threats, and public corruption. His firsthand knowledge of prosecutorial strategies, evidence priorities, and federal agency operations—gained through collaboration with agencies like the FBI, DOJ, SEC, and IRS—enables him to anticipate government tactics and build highly effective defense strategies. Dak’s reputation and credibility within the legal community, combined with his insider perspective, offer a strategic advantage in negotiations and court proceedings.

At National Security Law Firm, clients benefit from his extensive trial experience and ability to leverage his prosecutorial insights to develop proactive defenses that challenge the government’s case at every turn.

Learn more about Dak Kees and our team here.

Take Action Now

If you or your company are under federal investigation, don’t wait for an indictment—take control of your defense today. Contact the National Security Law Firm for a confidential consultation.

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