Biden DOJ Relaxed Fentanyl Policy While Reviewing Whistleblower Complaint

As the Justice Department reviewed an operation that allowed hundreds of thousands of fentanyl pills onto the streets of New Mexico, the Biden administration in 2024 relaxed federal policies on seizing the deadly drug.

During the first Trump administration, the Justice Department, recognizing the lethality of fentanyl, in 2019 issued stricter rules directing federal agents conducting wiretap investigations to “make reasonable efforts to prevent the distribution” of the drug, even if doing so affected an investigation. Almost five years later, the Justice Department under President Joe Biden altered the protocols to say investigators “may exercise discretion in determining whether to take action to prevent the trafficking of fentanyl.”

The 2019 policy was the legal basis behind a late-2023 whistleblower complaint that alleged the Justice Department was violating directives, allowing fentanyl into the United States to track it and apprehend major drug traffickers.

The Biden Justice Department’s subsequent policy change allowing for discretion was a potential “CYA move” that affected the outcome of the internal review of the whistleblower complaint, said Tristan Leavitt, president of Empower Oversight, a whistleblower advocacy group. Empower Oversight represents David Howell, a special agent with the Drug Enforcement Administration, who filed the initial complaint in December 2023 about the fentanyl walking.

“At the time that Special Agent Howell came forward, the Justice Department was operating under the 2019 fentanyl protocols,” Leavitt told the Daily Signal. The U.S. attorney’s office for New Mexico instructed DEA agents not to seize the deadly drugs, according to the whistleblower complaint.

“We don’t know where those pills might have gone. They most certainly did not stay in New Mexico,” Leavitt said. “They come through as part of their being trafficked throughout the United States.”

The Justice Department Office of Inspector General is currently investigating the operation, which ended in March 2025. New Mexico Attorney General Raúl Torrez is also investigating whether federal agents or prosecutors violated state laws by allowing the drug to flow into the U.S.

‘Blunt the Impact’

Leavitt said the timeline of the internal review and the change in policy suggests one of three things about the Justice Department’s handling of the fentanyl operation.

“The Justice Department has claimed that they were already in the process of updating that [fentanyl] guidance, but we have seen no evidence of that to date,” Leavitt said. “So, it seems like either they just changed their guidance to acknowledge that, or U.S. Attorney Alex Uballez in New Mexico persuaded them that this [allowing fentanyl into the U.S.] was a better approach. Or they didn’t think it was a good approach, but they just did this as a CYA move to blunt the impact of David Howell’s whistleblower disclosure.”

In November 2019, the Justice Department’s Criminal Division issued wiretap investigation risk mitigation protocols to address the unique threat posed by fentanyl.

“If agents have probable cause to believe that a subject intends to distribute fentanyl … agents should make reasonable efforts to prevent the distribution,” the department directed.

The protocols went on to say: “If agents have probable cause to believe that fentanyl is being stored at a particular location for later illegal distribution … the USAO and agents should apply for a search warrant as soon as practicable and seize or otherwise prevent the distribution of the fentanyl.”

President Joe Biden appointed Alex Uballez as U.S. attorney for New Mexico in 2022, and the operation allowing fentanyl to enter the U.S. began in 2023. Last month, Uballez defended the program, telling The Associated Press it saved lives, was key to intelligence gathering, and that “the bigger fish are worth catching.”

In December 2023, Howell filed a complaint about the operation with the Office of Special Counsel, or OSC, a federal oversight agency, citing the alleged violation of the November 2019 Justice Department directive.

After concluding “there is a substantial likelihood that the information provided to OSC discloses a violation of a law, rule, or regulation,” the Office of Special Counsel referred the matter to the Justice Department’s Office of Professional Responsibility, or OPR.

‘Discretion’ and ‘Broader Public Safety’

While the Office of Professional Responsibility conducted its review of the matter, the Biden administration’s Justice Department Criminal Division issued revised “risk mitigation protocols” on fentanyl, dated June 2024, outlining the “broader public safety benefits” from not seizing the drug. It marked a decisive departure from the 2019 directive.

“The investigative team may exercise discretion in determining whether to take action to prevent the trafficking of fentanyl,” the revised protocols said.

It later added, “If the investigative team determines that broader public safety benefits would ultimately be achieved by not taking such an enforcement action, they must notify, consult with, and obtain the concurrence of the supervisory attorney … and the law enforcement agency or agencies leading the investigation.”  

Leavitt said the policy change occurred before the OPR issued its required report in response to the whistleblower complaint. The Office of Professional Responsibility sent its report to the Office of Special Counsel on Sept. 23, 2024, about three months after the revisions were issued.

The conclusion “retroactively read” the 2024 revisions allowing for agents’ discretion into what was happening on the ground in New Mexico in 2023, when the 2019 policy directing them to seize fentanyl was still in effect, Leavitt said.

The operation of tracking, rather than seizing, fentanyl ended by March 2025, almost two months into the second Trump administration. Empower Oversight has called for the Trump administration to return to the 2019 protocols.

On May 7, 2025, the DEA announced the largest fentanyl pill seizure in the agency’s history: 2.7 million pills, intercepted in New Mexico. The agency said the seizure potentially saved more than 1.5 million lives.

Still, Leavitt said it is difficult to estimate how many people died because so much fentanyl was allowed into the country.

“Special agent Howell paid close attention to where he heard about overdose deaths and other things after they allowed large amounts of fentanyl to be walked. And so he, for instance, tracked the death of a young infant, just from who was exposed to some fentanyl on some tin foil,” Leavitt said. “But there’s not any way to know.”

The Justice Department, the U.S. attorney’s office in New Mexico and the DEA did not respond to specific questions for this story before publication.

Last month, DEA Administrator Terry Cole asked the Justice Department’s Office of Inspector General to investigate the matter.

“The alleged conduct occurred under the Biden administration’s disastrous open border policies,” a Justice Department spokesperson told the Daily Signal last month. “The Trump administration has closed the border and is aggressively pursuing drug traffickers.”