The 401(k) safe harbor's weak flank is its comment file

Three of the most senior Democrats on retirement policy in Congress have asked federal investigators to examine whether the public comment file behind the Labor Department's private-markets 401(k) rule was partly forged, converting a fight over plan menus into a criminal-referral question and moving the rule's procedural record to the center of the argument.

House Education and Workforce Committee ranking member Bobby Scott of Virginia, House Judiciary Committee ranking member Jamie Raskin of Maryland and Senate Health, Education, Labor and Pensions Committee ranking member Bernie Sanders of Vermont signed a letter to Attorney General Todd Blanche and FBI Director Kash Patel seeking a criminal investigation into the use of unverifiable or stolen identities to submit comments on the proposal. Scott and Sanders separately wrote to DOL Acting Secretary Keith Sonderling and Inspector General Anthony D'Esposito requesting that they investigate the matter.

Underneath the referral sits Bloomberg News reporting published last month, as InvestmentNews reported on Sept. 21, suggesting that nearly 12,000 comments filed in support of the rule may have been manufactured. Bloomberg's reporting identified people who said they had never submitted a comment and people whose relatives could not have filed the comments attributed to them because they had died. The lawmakers pointed to a narrower documentary tell: the supportive comments in question reportedly arrived without the commenter's city, state or email address, while the more than 30,000 comments opposing the rule carried them.

Published in March as the Investment Selection Proposal, the rule would create a process-based safe harbor for 401(k) plan fiduciaries, shielding them from litigation if they document a review of six factors — performance, fees, liquidity, valuation, benchmarking and complexity — before adding an investment option to a plan menu, including options containing private equity, private credit, real estate, infrastructure or digital assets. The proposal traces to an August 2025 executive order in which President Trump directed the Labor Department to reexamine fiduciary guidance under ERISA.

The legal exposure now sits in the comment process, the letters argue. "Federal law prohibits knowingly making any materially false statement or representation" to a federal agency, the three wrote, adding that making false statements is a serious crime that has led to prison sentences. Scott's letter to Sonderling framed the stakes more broadly, saying the reporting "raises legitimate questions about whether the public comment process for DOL rulemaking has been corrupted."

Set against the more than 30,000 opposing comments, the nearly 12,000 questioned filings put the docket on the order of 42,000 comments, with the supportive side at fewer than a third. The alleged fabrication looks less like an attempt to win a tally than to produce the appearance of rank-and-file backing. Padding a minority position is an odd strategy if the count is the point; it is a sensible one if the point was to give the Department political cover to finalize a rule it had already proposed. That reading is unconfirmed — the coverage reports no finding on who filed the comments or why.

Since the August 2025 executive order, asset managers and recordkeepers have assembled private-markets capacity aimed at defined-contribution menus, and the DOL alternatives proposal has been the backdrop to those plans — Principal wrapping private markets in CITs while the Department's benchmark work stalls. The more than 30,000 opposing comments are the better gauge of how contested that terrain is. Shelf decisions, not manager brand, determine what participants actually hold; a safe harbor is what lets a plan fiduciary place a private credit or digital-asset option on that shelf without carrying the litigation risk alone.

The requests run to the attorney general, the FBI director, the acting secretary and the inspector general, and the coverage does not say whether any of the four has responded. What the three lawmakers hold is the referral's existence and Bloomberg's underlying reporting, both of which are now part of the public case for and against finalizing the rule.

Whatever the six factors require, a safe harbor of this design is an evidentiary instrument: what a plan sponsor gets when it adds a private-markets option under the Department's protection is a documented record it can produce for a court later. A rule whose supporting record is under criminal investigation is a weaker product for exactly that purpose, however the inquiry ends. The Department's cleaner path is to reopen the comment period and rebuild the supportive record rather than defend what it has. That costs months and a second round of filings; it also produces a docket no one is asking the FBI about, which for a litigation shield is the entire product. Defending the file buys speed and hands opponents a second front where the argument is about who filed the comments rather than whether private credit belongs in a 401(k) menu.

The Department's defense of a sponsor's private-markets selection will lead back to this docket eventually, and the docket holds supportive comments that carry no city, state or email address to check.