While some believe that the DOJ’s new policy on the Selection of Monitors in Criminal Division Matters, announced in October 2018, represents a shift toward a more business-friendly DOJ, most DOJ insiders argue that the new policy is just a formalization of existing practice. The DOJ is simply “making an announcement that states reality,” Hui Chen, the Department’s former compliance counsel, argued, likening it to announcing that “the sun comes up every morning.” We examine how prosecutors are instructed to weigh the costs and benefits of a monitor and the Policy’s emphasis on not just remediation, but testing of new compliance controls. A second article will look at the monitor selection process. See “LBI and Its Monitor Discuss Getting the Most Out of a Monitorship
” (Aug. 2, 2017).