Three senior Democratic lawmakers on retirement policy have formally requested that the Department of Justice and the FBI open a criminal investigation into the public-comment process for a controversial Department of Labor rule that would ease the path for private assets and digital currencies in 401(k) plans. The move escalates a dispute that already had drawn sharp partisan lines over the proposed safe harbor.
In a letter dated [Date], House Education and Workforce Committee ranking member Bobby Scott (D-Va.), House Judiciary Committee ranking member Jamie Raskin (D-Md.), and Senate Health, Education, Labor and Pensions Committee ranking member Bernie Sanders (I-Vt.) asked Attorney General Todd Blanche and FBI Director Kash Patel to probe whether thousands of comments filed in support of the DOL's Investment Selection Proposal were submitted using unverifiable or stolen identities. The lawmakers cited a Bloomberg News investigation from last month that identified nearly 12,000 supportive comments that appeared to lack basic contact information, and included individuals who said they never submitted comments or whose relatives had died before the filing date.
Separately, Scott and Sanders wrote to DOL Acting Secretary Keith Sonderling and Inspector General Anthony D'Esposito, urging an internal review. In the DOJ letter, the lawmakers noted that "federal law prohibits knowingly making any materially false statement or representation" to a federal agency, and that such false statements have led to prison sentences. Scott's letter to Sonderling said the reporting "raises legitimate questions about whether the public comment process for DOL rulemaking has been corrupted."
The underlying rule and its stakes
The comment dispute sits atop a broader battle over the DOL's proposed rule, published in March, which would create a process-based safe harbor for 401(k) fiduciaries. If adopted, fiduciaries who document their review of six factors—performance, fees, liquidity, valuation, benchmarking, and complexity—before adding an investment option (including private equity, private credit, real estate, infrastructure, or digital assets) would be shielded from litigation. The proposal stems from an August 2025 executive order by President Trump directing the DOL to reexamine ERISA fiduciary guidance and prioritize actions that could curb litigation constraining fiduciaries' ability to offer alternative assets.
The rule aims to open the defined-contribution market, estimated at roughly $14.2 trillion, to alternative-asset managers historically shut out of the 401(k) channel. However, Scott, Sanders, and Sen. Elizabeth Warren (D-Mass.) had already opposed the proposal in a June 2 letter, arguing that "federal efforts to expand retirement income must prioritize cost-effectiveness, stability, and safety." They contended the safe harbor would compound, rather than solve, retirement security problems for American workers.
Research offers a nuanced view
Independent research suggests the policy debate is more nuanced than either side's talking points. A study released Monday by the CFA Institute Research and Policy Center found that modest allocations to private equity, private debt, infrastructure, real estate, or venture capital each improved risk-adjusted performance in a modeled target-date fund compared with a portfolio holding only public stocks and bonds—though the source of improvement varied sharply by asset class and depended heavily on glide-path design.
Morningstar's research offered similar tempered support. Simulating the experience of hundreds of thousands of defined-contribution participants, it found that semiliquid private market funds could marginally improve retirement outcomes, especially for those with higher benefits and lower expected Social Security replacement rates. Olivier Fines, head of advocacy and policy research at the CFA Institute, said in a statement that "opening access is not the same as improving retirement outcomes," and that whether an allocation helps depends on several factors. "As investment risk has shifted from employers to individuals, the relevant test is whether a private market allocation adds value after fees and within the liquidity, valuation, and governance constraints of a defined contribution plan," Fines said.
The investigation request adds a fraud dimension to an already heated regulatory debate. For advisors, the outcome could affect how they construct retirement portfolios and the fiduciary standards they must meet. The DOL has not yet responded publicly to the lawmakers' letters, and the timeline for the rule's finalization remains uncertain. As the industry watches, the broader question of whether alternative assets belong in 401(k) plans continues to divide stakeholders. For more on how advisors are navigating alternative investments, see our coverage of shifting ETF demand and the demands of large institutional investors.
