How Nonprofits Should Prepare for Federal Investigations in the Trump Administration
On Jan. 20, 2025, Donald J. Trump will start his second term as president of the United States, and this time, he will lead the nation after the Supreme Court’s decision to end race-based affirmative action in colleges and universities. If Project 2025 and the first Trump administration provide any clues, then the second Trump administration will likely take an aggressive stance to investigate and dismantle diversity, equity and inclusion (DEI) policies both in and outside of the federal government. Indeed, the Trump campaign was explicit that a second Trump administration would focus on “anti-white racism,” and that it would be “committed to weeding out discriminatory programs and racist ideology across the federal government.”
As nonprofits consider their existing DEI policies and prepare for the incoming Trump administration, they should be aware of the increased federal investigative risk. Since Republicans will control both chambers of Congress, nonprofits may become prime targets in having to respond to executive and Congressional branch investigations related to their DEI practices. Nonprofits frequently develop and champion DEI efforts, often doing so as a core part of advancing their mission. Despite the utility these programs may bring to society, Republicans may make nonprofit DEI programs the focus of federal investigations. For example, nonprofits that provide grants to historically underrepresented communities, or nonprofits that highlight their efforts to make diverse hires, may need to prepare for intense scrutiny in the immediate future.
What We Know About the Incoming Administration
The Heritage Foundation organized The 2025 Presidential Transition Project, more commonly known as Project 2025, to provide “the right conservative policy recommendations and properly The Heritage Foundation vetted and trained personnel” to the second Trump administration. Relevant here, Project 2025 articulated a roadmap (opens as a pdf) of what the Department of Justice should do to dismantle DEI initiatives.
Specifically, Project 2025 advises the Trump administration to “[r]eorganize and refocus the DOJ’s Civil Rights Division to serve as the vanguard for this return to lawfulness[,]” specifying that the Civil Rights Division should “spend its first year ... using the full force of federal prosecutorial resources to investigate and prosecute all state and local governments, institutions of higher education, corporations, and any other private employers who are engaged in discrimination in violation of constitutional and legal requirements.”
This means that President-elect Trump could prioritize these investigations on day one of his term.
Project 2025’s agenda is a continuation — and significant expansion of — the work of the first Trump administration. In 2020, the Trump administration issued letters to non-government entities related to their hiring practices and public statements about historical discrimination.
Furthermore, these conservative efforts are ongoing in Congress, too. In June 2024, Congressional Republicans introduced a bill to ban DEI programs and funding in the federal government, led by Sen., and now Vice President-elect, J.D. Vance. And in August 2024, Sen. Bill Cassidy called for an investigation into colleges’ and universities’ use of federal funds for DEI efforts (opens as a pdf). While these investigative and legislative efforts did not directly focus on nonprofits, after the Supreme Court’s affirmative action decision, conservative litigation groups have also targeted nonprofits and their programs.
What Does This Mean for Nonprofits Moving Forward?
Guided by Project 2025, we anticipate the second Trump administration, alongside Congressional Republicans, to launch anti-DEI investigations into organizations, especially nonprofits. In preparing for potential investigations, here are three steps your nonprofit should complete.
1. Conduct an Internal Assessment
Whether your nonprofit receives an inquiry or is simply preparing for the possibility that you will receive scrutiny, organizations should consider conducting an internal review to identify potential programs, practices or communications that could be susceptible to legal liability. As part of this review, nonprofits could identify what DEI programs exist within the organization, how they work and how the organization is communicating about those programs — both within the organization and to members of the public.
Furthermore, nonprofits should also review whether members of their legal team are involved in the organization’s conversations about DEI, as well as what kinds of documents are being created and retained. Then determine whether documents are potentially protected by privilege.
2. Issue a Legal Hold and Review Record Retention Policies
Upon receiving any form of inquiry from a governmental entity, nonprofits should issue a legal hold over relevant employees’ documents and review record retention policies to ensure responsive documents are retained and not inadvertently destroyed.
3. Engage Experienced Investigations Counsel
Nonprofits should consider hiring experienced counsel upon receiving any communications from governmental staff — ranging from formal subpoenas to more informal inquiries via email. Hiring experienced outside counsel will streamline communications with the investigating entity. Outside counsel can also serve as a key liaison with federal staffers. Further, these investigative efforts are frequently overbroad, and hiring outside counsel may help with narrowing the scope of the investigative requests, to the extent it is feasible.
The preceding post was provided by an individual unaffiliated with NonProfit PRO. The views expressed within do not directly reflect the thoughts or opinions of NonProfit PRO.
Marcus A.R. Childress joined Jenner & Block after serving as investigative counsel to the House Select Committee to investigate the Jan. 6 attack on the U.S. Capitol, where he conducted more than 60 depositions and interviews of key witnesses. Prior to the House Select Committee, Marcus served as an assistant staff judge advocate for the U.S. Air Force and a special assistant U.S. attorney in the Middle District of Georgia, where he oversaw more than 100 criminal investigations.
Now, Marcus brings the full depth and breadth of his government experience to bear for clients. He skillfully handles sensitive criminal and congressional investigations in a manner that allows clients to advance their business goals and maintain their reputations. Leading media outlets, including CNN, the BBC, and MSNBC, frequently turn to Marcus for his insight on high-profile government crises.
Marcus is also passionate about issues impacting the Black community, and as such, serves as a co-chair of the firm’s DEI Protection Task Force. In this role, Marcus helps companies and organizations navigate the political and litigation risks stemming from the Supreme Court’s decisions finding race-conscious admissions programs unconstitutional. Marcus is also an active member of the Leadership Council on Legal Diversity, serving as a city lead in Washington, D.C., and is a member of the DC Bar Association’s DEIA Task Force.
Prior to joining Jenner & Block, Sophie Schuit was an inaugural judicial law clerk for the Judge Myrna Pérez of the U.S. Court of Appeals for the Second Circuit. Before that, she was an associate at a New York law firm.
Before attending law school, Sophie worked at the Brennan Center for Justice on voting rights and election reform issues. She earned her undergraduate degree from Washington University in St. Louis with a degree in political science, and her law degree from Columbia Law School.
Isabel V. Benincasa Reade earned her law degree from Vanderbilt Law School, where she was senior En Banc editor for Vanderbilt Law Review. In law school, she received the Editor's and Dean’s Leadership awards, and was a Chancellor’s Law Scholar and a member of the Phi Delta Phi Honors Society. Isabel also served in the Immigration Practice Clinic.
