The Justice Department is putting American companies on notice that they could be prosecuted if they chose to evade President Trump’s tariffs, even as the legality of the president’s “Liberation Day” duties remain unsettled in US courts.
The message came in a DOJ announcement earlier this month stipulating that prosecutors would step up investigations into suspiciously classified imports and charge those who misidentify products with fraud.
“While the DOJ has always taken some customs cases, this is a different, more aggressive, visible stance than they usually would,” said Thompson Coburn trade lawyer Robert Shapiro.
Read more: 5 ways to tariff-proof your finances
The plan — to be carried out by the DOJ’s new Market, Government, and Consumer Fraud Unit — marks a shift in enforcement tactics from prior administrations that relied mostly on policing misconduct through administrative proceedings, even during Trump’s first term in office.
The new Trump administration instead wants to prioritize criminal charges against companies and individuals that try to evade US tariffs.
The overarching strategy was first outlined by Matthew R. Galeotti, head of the Justice Department’s Criminal Division, who wrote in a May memo that an increasing focus on white collar crime would include “trade and customs fraudsters, including those who commit tariff evasion.”
At the same time, the Trump administration finds itself in the unusual position of defending the legality of the duties it pledges to enforce.
Oral arguments in a federal lawsuit challenging the president’s tariffs are set to take place before the US Court of Appeals in Washington, D.C., this Thursday.
The small business importers challenging the legal standing of the duties already proved it was possible to temporarily derail Trump’s global tariffs with a lower court victory in May.
In a separate challenge, two toy manufacturers are scheduled to make their own arguments against Trump’s tariffs before the D.C. Circuit Court of Appeals on Sept. 30, following their own lower court victory.
‘We’re going to raise the ante’
Tariff violations can be prosecuted under civil or criminal laws. However, even fraud cases were often handled administratively by past administrations, according to Shapiro.
“I think the administration is just saying we’re going to raise the ante on this,” Shapiro said.
University of Kansas School of Law professor Raj Bhala said laws against customs fraud have long been in force, but the appetite for the DOJ and US Immigration and Customs Enforcement (ICE) to clamp down on violations has increased.
Historically, Bhala and other trade lawyers said, prosecutors focused government resources on suspected tariff violations by US adversaries such as China, Iran, and North Korea, and particularly on export controls meant to keep controlled items from shipping to those countries.
Producer-exporters, especially in China and other high-tariff regions, have been using evasion techniques for decades, mostly to skirt anti-dumping and countervailing duty orders, Bhala said.
But now, under more imposing tariffs, incentives to evade duties have spiked “enormously.”
“What is clear is that a lot of companies are looking for a way to limit the impact of the duties,” Shapiro said.
In this new tariff and enforcement environment, trade experts suspect that corporate America and its trading partners are on high alert.
Erika Trujillo, a trade attorney with customs risk management firm SEIA Compliance Technologies, said the shift toward more enforcement happening at the DOJ and less through administrative procedures could increase politically motivated targeting of companies viewed as adverse to the Trump administration’s interests.
“I do think trade restrictions were used as both a sword and a shield for foreign companies, or in terms of dealing with international trade,” Trujillo said.
Common tariff evasion techniques include misclassifying goods, falsely labeling a product’s country of origin, making minor modifications to a product while it’s in a lower-tariff jurisdiction to pass it off as manufactured there, and transhipping goods through lower-tariff jurisdictions.
Read more: The latest news and updates on Trump’s tariffs
“It’s hard to imagine that any well-run company that has supply chains stretching across the globe — particularly in higher-tariff jurisdictions like China or Cambodia — would not be having vigorous discussions to ensure every step in the supply chain is properly documented and audited,” Bhala said.
Bhala cautions that the stakes are high for importers subject to US jurisdiction.
“They’re the importer of record and they’re the ones who are liable for the tariffs,” he said. “And false declarations are what we call ‘go to jail stuff.’”
For fraud, fines can also be assessed, up to the domestic value of the merchandise.
For civil violations made based on negligent actions, maximum penalties are two times the underpayment of duties, in addition to original duties. For violations based on gross negligence, penalties increase to four times the underpayment of duties.
For businesses looking to assess their risk, US Customs maintains an electronic system called the Automated Commercial Environment (ACT) that allows importers to view what their classification data looks like to customs.
Small and midsize companies may find it more difficult to evaluate their compliance risks compared to multinational firms.
“If you’re an SME, you probably have one or two lawyers, and they’re not necessarily trade specialists,” Bhala said. Plus, there are different rules for thousands of products. For example, a typical NAFTA good, he explained, traverses the US-Canada border roughly four times.
“It’s really difficult for companies of that size to be dealing with this,” Trujillo said. One major challenge is finding affordable internal expertise.
“Almost every company I know is actively hiring for both customs and export controls, and sanctions. You’re basically stuck going to law firms or other external consultancy, and the small and medium-sized firms are maybe not going to have the budget to pay $1,100 an hour.”
Read more: What Trump’s tariffs mean for the economy and your wallet
For certain suspected violations like those made by mistake, Shapiro said it doesn’t make economic sense for the DOJ to get involved.
“They don’t have the manpower for it,” he said. But a new enforcement policy seems to fit the Trump administration’s broader tariff agenda, he added.
“If you’re going to have this tariff policy, you’re going to have to take a more aggressive stance, because it’s a huge ocean of imports, and it’s very hard for customs to enforce against everyone.”
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on X @alexiskweed.
Click here for in-depth analysis of the latest stock market news and events moving stock prices
Read the latest financial and business news from Yahoo Finance
