n June 9, 2025, Deputy Attorney General Todd Blanche issued a memorandum titled Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA). This memorandum establishes guidelines to ensure FCPA investigations and prosecutions are carried out in accordance with President Trump's February 10, 2025 Executive Order 14209, titled Pausing Foreign Corrupt Practice Act Enforcement to Further American Economic and National Security, by (1) limiting undue burdens on American companies that operate abroad and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests.
Executive Order 14209 directed the Department of Justice, through the Attorney General, for a period of 180 days to (i) cease initiation of new FCPA investigations or enforcement actions, unless the Attorney General determines an individual exception should be made; (ii) review all existing FCPA investigations or enforcement actions and take appropriate action to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and (iii) issue updated guidelines or policies regarding FCPA investigations and enforcement actions to promote the President's Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.
The Department's June 9, 2025 memorandum provides guidelines and non-exhaustive factors for prosecutors to use to evaluate whether to pursue FCPA investigations and enforcement actions. Prosecutors shall focus on cases where individuals engaged in criminal misconduct, proceed as quickly as possible in their investigations, and consider collateral consequences, such as the potential disruption to lawful business and the impact on a company's employees, throughout the investigation, and not only at the resolution phase.
1. Total Elimination of Cartels and Transnational Criminal Organizations
Following President Trump's January 20, 2025 directive to revise existing strategies to pursue the total elimination of cartels and transnational criminal organizations (TCOs), a primary consideration in deciding whether to pursue an FCPA investigation or enforcement action is whether the alleged misconduct (1) is associated with the criminal operations of a cartel or TCO; (2) utilizes money launderers or shell companies that engage in money laundering for cartels or TCOs; or (3) is linked to employees of state-owned entities or other foreign officials who have received bribes from cartels or TCOs.
2. Safeguarding Fair Opportunities for U.S. Business
The Department and President Trump emphasized the importance of economic growth and expansion of U.S. business opportunities abroad, and how critical growth is to safeguarding U.S. national security and economic prosperity. The Department's FCPA enforcement shall identify and prioritize the investigation and prosecution of conduct that undermines these principles. Another important factor prosecutors shall consider is whether the alleged misconduct deprives U.S. entities of fair access to compete or will result in economic injury to specific companies or individuals. Furthermore, prosecutors should also consider whether U.S. entities or individuals are harmed by foreign officials' bribery demands.
3. Advancing U.S. National Security
President Trump's 2017 National Security Strategy observed, "[t]errorists and criminals thrive where governments are weak, corruption is rampant, and faith in government institutions is low. Strategic competitors often exploit rather than discourage corruption and state weakness to extract resources and exploit their populations." Accordingly, the memorandum notes that when corruption occurs in sectors like defense, intelligence, or critical infrastructure, national security interests may be harmed. FCPA enforcement will accordingly focus on the most urgent national security threats resulting from bribery of corrupt foreign officials involving key infrastructure or assets.
4. Prioritizing Investigations of Serious Misconduct
Prosecutors must be mindful that the FCPA contains an exception for facilitating and expediting payments and provides affirmative defenses for reasonable and bona fide expenditures and payments lawful under the foreign country's written laws. To advance the positions articulated previously, FCPA enforcements and investigations should focus on alleged misconduct that bears strong indications of corrupt intent tied to particular individuals, such as substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice. FCPA prosecutors should consider the likelihood of whether an appropriate foreign law enforcement authority will investigate and prosecute the alleged misconduct.
5. Additional Considerations
As with every criminal investigation or prosecution, myriad factors must be considered. In addition, prosecutors must also follow applicable policies and factors, including the Principles of Federal Prosecution, which can also be considered to determine whether to authorize new FCPA investigations and enforcement actions. The Department retains prosecutorial discretion to continue or terminate cases based on the totality of the circumstances that have already entered the judicial process. The Order requires the Department within 180 days to review all existing FCPA investigations or enforcement actions and take appropriate action. Moreover, all current and future investigations and enforcement actions shall be governed by these guidelines and other applicable policies
Key Takeaways
These revised guidelines represent a shift in FCPA investigation and enforcement priorities toward targeting enforcement actions and investigations that undermine U.S. national security interests. These guidelines focus on (1) eliminating cartels and TCOs, (2) safeguarding national security (3) prosecuting serious misconduct that may not be addressed by foreign governments. The amended guidelines further focus on investigations and enforcement actions involving individuals as to limit burdens on American companies operating abroad.
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