The Ground Is Shifting — Is This the Big One?

There’s no better place than California — the heart of U.S. earthquake country — to hold a panel on seismic shifts. Luckily, the physical ground out here seems pretty stable as we are writing this, even though the white collar enforcement landscape feels like it’s undergoing a quake that’s pretty high up there on the Richter scale. Frightened? Not us, because we were fortunate this morning in San Diego to hear from a terrific panel that tried to help us make sense of what’s shaking the white collar world.

If you want to know where white collar enforcement is headed, pay attention to what’s happening at the edges — grand juries refusing to indict, judges looking to defense counsel for guidance, and the United States Commodity Futures Trading Commission (CFTC) suddenly picking fights over prediction markets. The Northeast Regional panel at this year’s ABA White Collar Crime Institute — which included our own Baruch Weiss — surfaced some of the most striking shifts practitioners are seeing in real time. Here’s what you need to know.

Come in Early — But Carefully

There’s real pressure on companies to get ahead of problems and self-disclose. This was made even clearer with U.S. Department of Justice’s (DOJ) new Department-Wide Corporate Enforcement Policy. The instinct makes sense: get in front of the government before they come to you. But early disclosure can prove rocky and certainly cuts both ways. Investigations take time. The facts you think you know on Day 30 may look very different on Day 300. Racing to disclose before you understand the full picture can trap you with incomplete or inaccurate information — and the government will hold you to what you said.

The smarter play, in many cases, is a more measured approach: come in early, disclose that there may be an issue, commit to a timeline for getting the government more information, and then actually follow through later.

The Adversarial System Under Pressure

The panel discussed a topic that should concern every defense lawyer: the apparent erosion of the adversarial system in high-profile cases. The Sam Bankman-Fried (SBF) prosecution was the sharpest example. Before SBF took the stand, the court required him to submit to questioning outside the presence of the jury — effectively forcing the defense to tip its hand about what his good-faith defense would look like. That kind of pre-testimony exposure would have been unthinkable in most cases, and it raises serious Fifth Amendment concerns.

Requiring the defense to reveal its strategy before trial — whether through premature expert disclosures or other mechanisms — shakes the plates of bedrock principles. Practitioners need to watch this trend, push back early, and build a record when it happens.

What’s Coming: Fewer Cases, Different Cases, Less Experience

Here’s the bigger picture: we’re in a period of new and different federal white collar prosecutions. The administration’s priorities have shifted, resources are constrained, and some longtime career prosecutors have left. That means three things are happening at once.

First, the cases that do get brought will look different — more aligned with current political priorities, less focused on traditional corporate fraud. Second, some of the prosecutors handling those cases will be less experienced than what the defense bar is used to seeing across the table. And third — and this is the one that may be hardest to get used to — defense attorneys are going to find themselves in a novel position in the courtroom. Some federal judges, used to leaning on experienced prosecutors to explain complex cases, are going to look to experienced defense counsel instead. The trusted senior defense attorney who knows the case cold, who the judge can rely on to give them a straight answer about what’s going on — that role just got more important.

The Grand Jury Is No Longer a Sure Thing

For decades, the conventional (but we think overly cynical) wisdom was that a good prosecutor could indict a ham sandwich. That view, which was solid ground for decades, has become rocky. We’re seeing grand juries — including in high-profile, politically charged cases — refuse to indict. In one recent sandwich-related felony assault case, for example, the grand jury came back as a no-bill; the government then brought it as a misdemeanor and lost at trial anyway. The Sydney Reid matter saw multiple grand jury presentations without an indictment. In the case of the six Democratic lawmakers, including Senator Mark Kelly (where Arnold & Porter represents Senator Kelly), the grand jury was unanimous in refusing to issue an indictment for their appearing in a video advising service members that soldiers can disobey illegal orders.

The implications of these no true bills are significant. Defense counsel should think creatively about grand jury strategy — including to consider possibly having a client being investigated ask to testify before the grand jury.

Courts are starting to notice, too. At least one district court judge recently wrote that a government motion to dismiss without prejudice — after a failed prosecution — reflected what the court called “apparent prosecutorial machinations.” Judges are watching. And they’re not always impressed.

Don’t Sleep on the CFTC

One more thing worth flagging: just because there are fewer DOJ cases doesn’t mean that continents are falling into the sea or the enforcement universe is contracting everywhere. For example, the CFTC under its new enforcement head, David Miller, is making noise. A February 2026 statement out of the CFTC signals a renewed commitment to using the agency’s enforcement powers to go after market manipulation and insider trading — including in prediction markets. If your clients play in those spaces, read that statement carefully. This one is worth watching.

Finally, fewer cases doesn’t mean less fraud. It just means the fraud is piling up for later. The wave will come — the only question is when.

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When a physical earthquake comes, you are well advised to find a safe place to ride it out. Riding out the present quake in the white collar world will require all of us to pay close attention to the shifting landscape. And of course we at Enforcement Edge are here to help with that. Stay tuned. 

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.