As a result, for a period of 180 days, the order requires the attorney general to review guidelines and polices that previously directed investigations and enforcement under the FCPA.
On February 10, 2025, President Donald Trump issued an executive order titled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.” The order suspends enforcement of the Foreign Corrupt Practices Act (FCPA) for a period of 180 days, during which time the U.S. attorney general will seek to align FCPA enforcement with the Trump administration’s twin aims of enhancing national security and restoring competitive balance in the global economy for American companies. The executive order portends a shift in FCPA enforcement priorities, especially when considered alongside other recent activity, such as the February 5 memorandum by Attorney General Pam Bondi regarding “Total Elimination of Cartels and Transnational Criminal Organizations.”
Purpose
The order states the president’s authority, and therefore the country’s national security, is compromised by “overexpansive and unpredictable” FCPA enforcement, which also hinders American businesses in the global economy. In particular, the order finds that American national security is advanced when American companies gain “strategic business advantages” in “critical minerals, deep-water ports, or other key infrastructure or assets.” The order also calls out FCPA enforcement that targets “routine business practices in other nations” as a waste of prosecutorial resources.
FCPA Enforcement Pause
As a result, for a period of 180 days, the order requires the attorney general to review guidelines and polices that previously directed investigations and enforcement under the FCPA. The order states the attorney general shall:
- Cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made [emphasis added];
- Review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matter to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and
- Issue updated guidelines or policies, as appropriate, to adequately 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.
In sum, the executive order prevents initiating any new FCPA investigation or enforcement proceeding without the attorney general’s express approval, essentially granting the attorney general sole discretion for determining who may be investigated or prosecuted for FCPA violations until the new guidelines or policies are issued. In addition, all existing FCPA actions are subject to the attorney general’s review to “restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives.”
Broader Realignment
The order should be considered alongside other actions by the attorney general, especially the February 5 memorandum previewing the Trump administration’s approach to the FCPA. In that memorandum, the attorney general articulated the administration’s prosecutorial strategy aimed at cartels and transnational criminal organizations (TCOs). Section II of the memorandum, “Removing Bureaucratic Impediments to Aggressive Prosecutions,” highlighted the role of the FCPA in achieving the “total elimination of Cartels and TCOs.” The memorandum loosens prior FCPA requirements in prosecuting cartels and TCOs. Previously, any investigation or prosecution under the FCPA required that (i) the investigation or prosecution be authorized by the Department of Justice Criminal Division and (ii) trial attorneys from the Fraud Section lead the investigation or prosecution. Following the memorandum, a U.S. Attorney’s Office is only required to provide the Criminal Division 24 hours’ notice of its pursuit of FCPA charges against cartels and TCOs. Thus, the memorandum encourages the use of the FCPA in prosecutions of cartels and TCOs. In effect, the memorandum directs federal law enforcement to refocus its use of the FCPA from any cases that do no not involve a connection with the criminal operations of cartels and TCOs.
Notwithstanding the executive order and the memorandum, the FCPA remains good law. Bribing or using other means to “secure improper advantages” with foreign governments or instrumentalities remains illegal. Whether the current administration, through its attorney general, actively pursues FCPA actions or not, violating the FCPA creates liability. It is unknown what FCPA actions the attorney general may approve. Interestingly, Jay Clayton, nominee to be U.S. attorney of the Southern District of New York, has been critical of the FCPA and its enforcement. Specifically, Clayton has described the FCPA as burdensome on American companies and negatively affecting their ability to compete in international business.
Overall, the Trump administration’s actions illustrate broader efforts to refocus law enforcement priorities. Consistent with the memorandum, the FCPA’s focus will likely be on bribery that relates to cartels and TCOs. However, thus far the administration’s refocus of the FCPA has been in the criminal context. The order does not affect the FCPA in the civil context—the Securities and Exchange Commission maintains its civil authority to pursue and enforce the FCPA. Accordingly, organizations should continue to remain compliant with the FCPA.
For More Information
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