On February 10, 2025, President Trump issued an Executive Order on "Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security" ("the E.O."). The E.O. orders Attorney General, Pam Bondi, to cease initiation of new enforcement actions under the Foreign Corrupt Practices Act ("FCPA"), review all existing investigations and enforcement actions, and issue new guidelines and policies as necessary.
FCPA Background & Enforcement Policy Shifts
The FCPA was enacted in 1977 to combat improper business practices involving corrupt payments to foreign officials and to restore public confidence in the American marketplace. The FCPA generally prohibits the payment of bribes to foreign officials for the purpose of obtaining strategic business advantages.
President Trump's E.O. cites economic and national security concerns as its basis, and states that the FCPA has been "stretched beyond proper bounds and abused" since its enactment and accompanied by "overexpansive and unpredictable" enforcement. The related White House Fact Sheet for the E.O. highlights President Trump's goal of reducing FCPA enforcement "that makes American companies less competitive."
The purpose of the E.O. aligns with the broader "America First" policy that has been the driving force behind many of the actions taken by the administration over the past several weeks. As such, a goal of the new FCPA policies developed under the E.O will be to ensure American businesses are able to engage in the same practices as their competitors to obtain necessary strategic advantages, including rights in or access to "critical mineral, deep-water ports, and other key infrastructure or assets." While FCPA enforcement will not be entirely eradicated, it is clear that the Trump Administration will prioritize the ability of U.S. businesses to gain advantages in the global market over anti-corruption enforcement.
Directives to Attorney General Bondi
Under the E.O., FCPA enforcement, including the initiation of new investigations, is suspended for the next 180 days, unless an exception is made by Attorney General Bondi. During this 180-day "review period," Bondi must conduct a review of all existing FCPA actions and take steps with respect to these cases to "restore proper bounds on FCPA enforcement and Preserve Presidential foreign policy objectives." Bondi must also issue updated guidelines on FCPA enforcement during the review period to align with the policies and priorities discussed in the E.O.
Attorney General Bondi may extend the 180-day moratorium on FCPA actions when deemed appropriate. All FCPA enforcement actions initiated after the initial, or extended, review period will be governed by the updated enforcement guidelines as opposed to any formerly published guidance or policy documents. It is also possible that current FCPA cases will be paused and then continued under updated enforcement guidelines once implemented.
In addition, and perhaps most notably, the E.O. requires that future FCPA investigations and enforcement actions be specifically authorized by Attorney General Bondi before initiation. Furthermore, Bondi is authorized under the E.O. to take steps with respect to prior FCPA enforcement actions to remediate any "inappropriate" investigations or enforcement that took place prior to the publication of updated enforcement guidelines. As such, we can expect to see the publication of new DOJ enforcement policies in the coming months along with potential guidance documents on FCPA compliance. These, along with any actions Bondi takes with respect to past FCPA cases, will be helpful indicators of the new administration's plans for FCPA enforcement in the coming years and the extent to which we may see overall enforcement decline.
Executive Order Out of Order?
It should be noted that President Trump's issuance of this E.O. comes just five days after Attorney General Bondi directed Department of Justice ("DOJ") employees to focus FCPA enforcement efforts specifically on cases involving the "criminal operations of cartels and TCOs [i.e., Transnational Criminal Organizations.]"1 Now, under the new E.O., Bondi must pause all FCPA enforcement until related guidelines and policies are reviewed and updated over the 180- day review period. As a result, Bondi's previous FCPA-related directive may be built upon or modified via the issuance of new guidance and policy documents over the next few months. However, these developments pursuant to the E.O are unlikely to change the overall prioritization of cartel and TCO- related enforcement as directed under Bondi's Memorandum.
Footnote
1. See our previous article on the Bondi memoranda here.
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