Justice Manual § 9-2.137

A. The Need for a Consistent and Coordinated National Enforcement Strategy for Domestic Violent Extremism-Related Matters.

Domestic violent extremism (DVE), including domestic terrorism, poses one of the most significant threats to our nation. It is imperative that the Department take a robust and coordinated approach in responding to this threat, including by ensuring that timely and relevant information is shared among law enforcement; allocating appropriate resources; and pursuing charges and sentences in a manner that is consistent across jurisdictions. Effective coordination of DVE-related matters is particularly critical where threats arise in connection with movements and groups whose existence spans multiple jurisdictions or even the entire nation. This policy is aimed at ensuring the National Security Division is involved in decisions that implicate national interests, while otherwise deferring to USAOs under the authority of United States Attorneys.

B. Definition of DVE-Related Matters.

To ensure appropriate coordination and consistency for such investigations and cases, the phrase “DVE-related matters” is defined to include all matters related to violent criminal acts in furtherance of ideological goals stemming from domestic influences, such as racial bias, anti-authority, and anti-government sentiment. If an investigation or criminal case (a) involves suspected DVE, including domestic terrorism, or (b) bears a material nexus to DVE, USAOs shall designate it as DVE-related. Such investigations and cases include the following:

Any investigation or case involving conduct that meets the definition of domestic terrorism, as set forth in 18 U.S.C. § 2331(5);

Any investigation designated as a domestic terrorism or domestic violent extremism investigation by the FBI (including, but not limited to, any investigation assigned a “100,” “266,” or “336” case classification by the FBI); and

Any investigation or case where a subject or target is believed to have engaged in or attempted to have engaged in DVE-related conduct in the past, if that conduct is reasonably expected to be referenced in connection with the current investigation or case (e.g., in pleadings, hearings, reports prepared by U.S. probation or pretrial services officers, sentencings, or press releases).

C. Notice and Designations in DVE-Related Matters.

Notice Upon Initiation. USAOs shall notify the Counterterrorism Section (CTS) in the National Security Division of all DVE-related matters as soon as practicable, except in criminal civil rights matters described further in Section F. Where CTS becomes aware of a DVE-related matter that has not been identified as such by a USAO, CTS shall notify the relevant office(s), and the matter will be designated as DVE-related going forward.

Any DOJ component that becomes aware of information that may be relevant to a DVE-related matter pending in a USAO, including relevant investigative action that may be planned in another district, shall coordinate with the originator of that information to share the information directly with CTS and/or the USAO as soon as practicable and to the fullest extent possible.

Designation by the Assistant Attorney General for National Security. As soon as practicable after receiving notification or becoming aware of a DVE-related matter, the Assistant Attorney General for National Security or his or her designee shall designate the matter as a Category 1 DVE-related matter or a Category 2 DVE-related matter. CTS shall notify the USAO of the designation as soon as practicable.

Category 1. A Category 1 DVE-related matter is one that (1) involves a violation or potential violation of a statute listed in JM Section 9-2.136(B)(1) and is not an international terrorism matter; (2) involves conduct that resulted in death to any individual or serious bodily injury to multiple individuals; or (3) otherwise implicates, as determined by the Assistant Attorney General in consultation with the relevant United States Attorney(s) and/or other Assistant Attorneys General, significant national interests, such as the coordination of investigations across multiple jurisdictions, the uniform application of the law, or other substantial policy considerations.

Category 2. A Category 2 DVE-related matter is any other DVE-related matter not designated under Category 1. USAOs are in the best position to handle matters that do not involve the national interests in Category 1, except in the two narrow instances described in Section E.

D. Prior Express Approvals Required in Category 1 DVE-Related Matters.

Significant Filings. Subject to Section F, prior express approval by the Assistant Attorney General for National Security or his or her designee is required for the following actions in Category 1 DVE-related matters, unless the Assistant Attorney General advises the USAO that he or she does not wish to exercise approval authority with regard to a particular action or category of actions in the matter:

Filing an application for a search warrant or a Title III wiretap.

Filing an application for a material witness warrant.

Filing a criminal complaint or information or seeking the return of an indictment.

Filing a superseding complaint or information, or seeking the return of a superseding indictment.

Offering or accepting a plea agreement.

Dismissing a charge for which the Assistant Attorney General’s approval was initially required.

Filing a sentencing memorandum.

Any court filing that contains descriptions of a nexus of the subject/defendant, or of the conduct under investigation, to DVE and/or groups engaged in DVE, unless the court filing includes a description that has already been approved by the Assistant Attorney General (or his or her designee) in a document previously filed in that matter.

Other specific court filings as requested by the Assistant Attorney General.

Where prior approval by the Assistant Attorney General is required, the USAO should make the application for approval through CTS.

Additional Guidance for Approval of Indictments, Informations, and Complaints. For approval of any indictment, information, or complaint, submission to CTS of a prosecution memorandum and a copy of the proposed filing is normally required prior to seeking authorization for charges, although CTS may waive this requirement in a particular case. The final draft of the proposed charge must be provided to CTS before final approval from the Assistant Attorney General for National Security will be sought. Attorneys are encouraged to seek informal guidance from CTS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the investigatory action and the proposed date by which the USAO needs a response. If CTS is unable to respond within the time frame suggested by the USAO, CTS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties.

Application of U.S.S.G. § 3A1.4. In addition to obtaining approval for arguing that the sentencing enhancement pursuant to U.S.S.G. § 3A1.4 applies, or for seeking an upward departure pursuant to Application Note 4 of that provision, the USAO in any Category 1 DVE-related matter shall notify CTS at least 14 days in advance of filing a sentencing memorandum if it has decided the enhancement does not apply or not to seek an upward departure. The Assistant Attorney General for National Security or his or her designee, after consultation with the United States Attorney, may direct the USAO to argue the enhancement applies or to seek an upward departure if the Assistant Attorney General determines that doing so is necessary to vindicate the federal interests involved. Other determinations and strategic decisions regarding sentencing should generally remain in the discretion of the USAO.

Staffing. Given the compelling national interests implicated in Category 1 DVE-related matters, the Assistant Attorney General for National Security and the United States Attorney are encouraged to consider participation by attorneys from the USAO and CTS as co-counsel during the course of such investigations and prosecutions.

E. Notifications and Prior Express Approvals Required in Category 2 DVE-Related Matters.

For Category 2 DVE-related matters, USAOs shall keep CTS apprised of significant events in those cases, including the filing of criminal charges via complaint or indictment, plea resolutions, the initiation and results of any trials, sentencing disposition, and final appeals. This reporting enables the Department to track important events in Category 2 matters without interfering with USAOs on issues that do not implicate nationwide coordination interests.

Approvals Required to Ensure Proper National Coordination. For Category 2 DVE-related matters, the following two areas require consultation with, and prior approval by, the Assistant Attorney General for National Security or his or her designee. Both areas implicate national interests where the Department and USAOs must speak with one voice to ensure consistency and fairness in handling DVE matters:

Descriptions of DVE and Groups Engaged in DVE. USAOs must submit for review and approval by CTS, prior to filing, any charging document or other court filing that contains descriptions of a nexus of the subject/defendant, or of the conduct under investigation, to DVE and/or groups engaged in DVE unless the descriptions used are identical to descriptions that CTS previously approved in a document previously filed in the matter. CTS shall seek to ensure accuracy and consistency in such descriptions in filings nationwide.

Application of U.S.S.G. § 3A1.4. USAOs shall obtain express approval from the Assistant Attorney General for National Security or his or her designee prior to arguing that the sentencing enhancement pursuant to U.S.S.G. § 3A1.4 applies, or prior to seeking an upward departure pursuant to Application Note 4 of that provision. However, in Category 2 DVE-related matters, USAOs need not notify or obtain approval from CTS when declining to argue an enhancement applies or to seek an upward departure.

F. Exceptions for DVE-Related Matters Involving Criminal Civil Rights Statutes.

Nothing in this Section shall be construed to alter or diminish the authorities of the Civil Rights Division pertaining to the enforcement of criminal civil rights statutes, as set forth in JM Section 8-3.000. The fact that a criminal civil rights case is or may be DVE-related shall not alter or diminish the Civil Rights Division’s role in any such case.

As such, the approval requirements pertaining to Category 1 DVE-related matters, as set forth in Section D, shall not apply where such matters involve violations or suspected violations of civil rights criminal statutes; provided, however, that the Civil Rights Division or a USAO must obtain approval from the Assistant Attorney General for National Security for any decision regarding the application of U.S.S.G. § 3A1.4 in any case. Additionally, the Civil Rights Division shall consult with CTS regarding filings and other public descriptions of a nexus of a subject/defendant, or of the conduct under investigation, to DVE and/or groups engaged in DVE.

If CTS becomes aware of a DVE-related investigation or case that involves a violation or suspected violation of a civil rights criminal statute, CTS shall notify the Civil Rights Division as soon as practicable. Likewise, if the Civil Rights Division becomes aware of a criminal civil rights case that is DVE-related, it shall notify CTS as soon as practicable. In all cases implicating both civil rights and national security interests, the Civil Rights and National Security Divisions should endeavor to work collaboratively and leverage each Division’s areas of expertise.

G. Organized Crime and Racketeering Provisions Unaffected.

Nothing in this Section shall be construed to alter or diminish the authorities of the Criminal Division pertaining to enforcement of the Racketeer Influenced and Corrupt Organizations (RICO) and the Violent Crimes in Aid of Racketeering (VICAR) statutes, as set forth in JM Section 9-110.00. The fact that a RICO or VICAR case is or may be DVE-related shall not alter or diminish the Criminal Division’s role in any such case. In all cases implicating RICO and/or VICAR and national security interests, the Criminal and National Security Divisions should endeavor to work collaboratively and leverage each Division’s areas of expertise. To that end, the Assistant Attorney General for National Security shall consult with the Assistant Attorney General for the Criminal Division prior to designating any such case or investigation as a Category 1 DVE-related matter.

H. Exigent Circumstances.

If exigent circumstances require a USAO to take immediate action in a DVE-related matter without complying with the prior approval requirements set forth above, the USAO must notify CTS of any action taken as soon as practicable thereafter and of the exigent circumstances that precluded obtaining prior approval. The USAO shall provide copies of any court filings made. If the Assistant Attorney General for National Security determines that further review or action appears appropriate, the Assistant Attorney General and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.