A New Day for Foreign Bribery Cases
On February 10, 2025, President Trump signed Executive Order 14209, instructing the Department of Justice (“DOJ”) to pause all enforcement actions under the Foreign Corrupt Practices Act (“FCPA” or the “Act”), the penultimate vehicle for foreign business corruption prosecution in the U.S. (Todd Blanche, Department of Justice). However, on June 9, 2025, Deputy Attorney General Todd Blanche released a memorandum announcing that the DOJ would resume enforcing the FCPA, albeit with a new approach that will tailor enforcement to cases that protect the interests of U.S.-based firms. Id.; (Chris Prentice, Reuters). This article examines the Executive Order that paused FCPA enforcement and the DOJ’s new approach to its enforcement.
The FCPA is a federal law passed in 1977 that makes it illegal for business and public officials to pay foreign government officials to obtain or retain their business. (Foreign Corrupt Practices Act, Department of Justice). The anti-bribery provisions cover the majority of bribery categories, including money or gifts of value to foreign officials. Id. It was first enforced in 1979 when a U.S. company bribed a campaigning politician in the Cook Islands to win a stamp-shipping contract. (Criminal Division, Department of Justice). The Act also demands compliance with certain accounting and record-keeping provisions for any company that has its securities listed in the U.S. (Foreign Corrupt Practices Act, Department of Justice). Despite the recent Executive Order and new approach to enforcing the Act, the FCPA remains good law in the U.S. (Todd Blanche, Department of Justice).
In the Executive Order, President Trump alleges that officials have improperly enforced the FCPA, harmed the interests of the U.S., and undermined the President’s Article II powers over foreign affairs. (White House). President Trump asserts that frivolous enforcement of the Act against American businesses prevented them from gaining a competitive edge in the global marketplace. Id. He elaborated that this enforcement costs federal prosecutors time they could be spending on other work, while limiting how U.S. companies approach industries like critical minerals or deep-water ports. Id.
The Order instructs the Attorney General, currently Pam Bondi, to review ongoing FCPA cases in an attempt to “restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives” and bars the DOJ from opening new investigations. Id. Further, the Order directs the Attorney General to update DOJ guidelines for enforcing the FCPA so that it respects the President’s Article II authority over foreign affairs and more efficiently allocates federal law-enforcement resources. Id. Additionally, it directs the Attorney General to explore potential remediation for earlier flawed FCPA investigations. Id.
Before the Order was signed, Attorney General Pam Bondi released a memo on February 5, 2025, calling for the DOJ to prioritize cartel and transnational criminal organization (“TCO”) investigations. (Pam Bondi, Department of Justice). She doubled down on this sentiment, clearing bureaucratic obstacles, such as the National Security Division’s approval requirement to file terrorism charges, that could encumber prosecutors trying to prosecute suspected members of these groups. Id. Speaking on the FCPA specifically, Bondi lifted a requirement that FCPA investigations involving cartels had to be carried out by a DOJ Fraud Section attorney. Id. Though she did not address the motives of the upcoming Order directly, Bondi noted that this aggressive approach toward cartel and TCO activity would shift attention away from other FCPA cases. Id.
Deputy Attorney General Todd Blanche proposed guidelines for the DOJ in a Memorandum to the Head of the DOJ Criminal Division on June 9, 2025. (Todd Blanche, Department of Justice). He alluded to Bondi’s memo, setting out criteria for the DOJ to weigh to determine whether to launch a formal investigation into FCPA conduct. Id. First, Blanche urged officials to prioritize investigating conduct involving cartels or TCOs. Id. Blanche also proposed that the DOJ prioritize investigating conduct that threatens U.S. businesses’ abilities to gain competitive international advantages. Id. This approach shifts focus to conduct that harms U.S. entities. Id. Finally, Blanche outlined broad criteria for enforcing the FCPA in cases that implicate national security concerns. Id.
The Order and Memoranda all fail to address how this affects U.S. involvement in the Organization for Economic Co-operation and Development (“OECD”) Anti-Bribery Convention, which sets standards for countries to criminalize foreign bribery. (Crowell; OECD). Canada, for example, reported 31 open investigations to enforce Canada’s Corruption of Foreign Public Officials Act from 2018-2022. (OECD). The U.S. OECD report detailed U.S. efforts to effectively enforce the Act, such as guidance on how to factor in a company’s history when deciding whether to prosecute and the DOJ’s Corporate Enforcement Policy, which allows companies to disclose their foreign bribery misconduct to receive less sanctions. (OECD). It is unclear how the report will reflect the currently unknown implications of the Order and Memoranda. Id.
The Order and Memoranda were similarly silent regarding the Securities & Exchange Commission (“SEC”). (Crowell). The SEC has the authority to enforce the Act through civil action but is not obligated to do so. Id. SEC leaders appointed during the Trump administration have begun requiring SEC lawyers to secure leadership approval before issuing any formal investigation orders, such as are needed to issue subpoenas. (Chris Prentice, Reuters). This change marks a shift from tradition, in which SEC lawyers and staff could initiate investigations on their own, with SEC leadership retaining only veto power. Id.
Even with the Deputy Attorney General’s guidelines set in stone, businesses will need to stay wary of their foreign transactions. (Crowell). Foreign laws will persist in many countries, and Americans doing business in these countries are still beholden to these laws. Id. Even with SEC and DOJ investigative powers dampened, the FCPA remains good law, and egregious cases of bribery, such as cartel activity, will be as ripe as ever for prosecution. Id. The gray areas have expanded, however, and it is uncertain what the implications are for this concerted effort between the SEC and the DOJ to divert attention away from foreign bribery cases that do not harm U.S. citizens. (Crowell; Chris Prentice, Reuters; White House). With the Head of the DOJ Criminal Division assuring Americans that cooperative and compliant businesses will have little trouble avoiding FCPA prosecution, the effects of this Order are seemingly minimal for upstanding businesses. (Chris Prentice, Reuters). Though businesses transacting in foreign affairs may breathe a bit easier under this new enforcement policy, the FCPA’s five-year statute of limitations means a bad actor under this administration could be a target in the next, and companies will have to determine the level of uncertainty and risk they’re willing to take on in the name of business. (Mengqi Sun, WSJ).