On February 10, 2025, President Trump issued an executive order (EO) directing Attorney General Pam Bondi to effectively pause the Justice Department's enforcement of the Foreign Corrupt Practices Act (FCPA). This was the second FCPA-related directive from this administration in short order, as we wrote last week on the Attorney General's Day One directive shifting the FCPA Unit's enforcement priorities towards transnational criminal organizations and cartels.
The February 10, 2025 EO, and its accompanying fact sheet, directs AG Bondi to halt FCPA investigations and enforcement actions for a period of 180 days, during which time the AG is directed to review open FCPA matters to align with two aims: (1) "to restore proper bounds on FCPA enforcement" and (2) to "preserve Presidential foreign policy prerogatives."
The EO articulates the President's view that "overexpansive and unpredictable FCPA enforcement against American citizens and business — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security." The EO and Fact Sheet do not identify any recent enforcement actions that illustrate this policy concern, and, in fact, some have observed that FCPA enforcement has helped major U.S. companies push back on demands for significant kickbacks when dealing with foreign government customers. The Fact Sheet does highlight a few broad areas in which the administration believes the FCPA has harmed American competitiveness—"critical minerals, deep-water ports, and other key infrastructure"—suggesting that it has identified these as industries in which antibribery enforcement has hindered U.S. business interests.
The EO signals a much different approach to FCPA enforcement than every previous U.S. administration for the past 50 years. The argument that FCPA enforcement is bad for business and puts the U.S. at a competitive disadvantage is not new—indeed, such claims have been made since the statute's original development in the 1970s. Congress rejected that rationale in enacting the statute, and the Department of Justice has, until now, regularly challenged that notion. Nonetheless, the administration has clearly heeded reports from some quarters of the business community that some foreign economic competitors continue to engage in corruption to gain advantage over U.S. and European competitors in various jurisdictions.
While the EO certainly signals a shift in attitude, it bears emphasizing that it does not purport to end FCPA enforcement altogether. Rather, the President has directed the AG to ensure such actions align with the President's "foreign policy prerogatives." This suggests that, in addition to the prioritization on cartel-related bribery announced last week, we should expect current FCPA enforcement efforts to otherwise dovetail with and add pressure in support of the administration's policies in other arenas, such as immigration or trade. For example, based on the EO's stated goals, the current administration may view FCPA enforcement with respect to corruption allegations involving the government of a country that robustly retaliates against potential U.S. tariffs as a legitimate foreign policy tool.
Most importantly, however, companies must remain mindful of the longer term and wider scale of anticorruption enforcement—and the significant risks of acting hastily on the basis of this pause.
- There are other U.S. laws, and other laws around the world, that target corruption and that are not subject to any pause, and many U.S. multinational corporations are subject to those laws. We may see an enforcement uptick from European enforcement agencies with a global mandate, such as the UK's Serious Fraud Office (SFO) or France's Parquet National Financier (PNF) and Agence Française Anticorruption (AFA), as well as from local anticorruption enforcement agencies in other countries, including China.
- We see no indication that Congress will repeal the FCPA, meaning that it will remain a valid U.S. law and thus bribery of foreign officials will remain illegal. Moreover, Congress has only recently passed companion legislation in the Foreign Extortion Prevention Act (FEPA), as we've previously written about, indicating there is unlikely to be appetite for a legislative retreat. Priorities shift from administration to administration, and the FCPA's statute of limitations is longer than any one administration, so changing behavior now to dedicate fewer resources to compliance programs—or (more dramatically) to affirmatively engage in corrupt conduct—would invite substantial risks that would extend out over (and beyond) the life of the affected project.
- DOJ's Voluntary Self-Disclosure policy remains on the books, and, while maybe counterintuitive, entities who have identified potential misconduct may wish to consider the potential increased benefits of a disclosure in the present administrative context. While the existing VSD policy would entitle a qualifying disclosing entity to a declination with disgorgement of illicit profits, current DOJ leadership may be inclined to apply the VSD eligibility criteria more leniently or may even limit or forgo the disgorgement requirement in the right circumstances to implement the Administration's directive. Of course, this consideration should form only a part of an entity's calculus in engaging with DOJ—many other factors remain in play (including the statute of limitations applicable to the conduct, and the attendant or ancillary business risks accompanying a disclosure, among other collateral concerns). Entities should continue to consult with experienced counsel in weighing their disclosure options at the soonest possible time.
- Finally, the SEC retains its own authority to investigate and bring civil enforcement of the FCPA—particularly for violations of the books-and-records and internal-controls provisions. While the SEC under its new leadership will very likely re-align its FCPA enforcement efforts to reflect the administration's expressed priorities, there has been no clear directive to that effect yet, and the SEC may continue to bring FCPA enforcement actions in the right circumstances.
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