Enforcement under the Trump Administration: Reports of the FCPA’s Death are Exaggerated

On February 10, 2025, President Trump issued an executive order (the “EO”) directing the U.S. Department of Justice (“DOJ”) to pause new Foreign Corrupt Practices Act (“FCPA”) investigations and enforcement actions for 180 days while the DOJ reviews existing guidelines and policies governing FCPA, a federal law that prohibits bribery of foreign public officials.

While the EO undoubtedly anticipates changes in the way the DOJ approaches FCPA investigations, FCPA criminal enforcement will continue, as well as global enforcement of corruption and related risk areas.

What does the EO say?

The EO instructs the DOJ to review guidelines and policies governing FCPA investigations and enforcement actions for a period of 180 days. The Attorney General may extend the 180-day period for up to another 180 days if needed. During that time, the DOJ will generally “pause” new FCPA investigations and enforcement actions, review existing FCPA investigations, and issue updated guidelines (the “FCPA Guidelines”) that promote “American economic competitiveness” and “the efficient use of Federal law enforcement resources.”  The FCPA Guidelines will govern future FCPA investigations and enforcement actions, which must be authorized by the Attorney General. After issuing the FCPA Guidelines, the Attorney General may determine whether additional “remedial actions” are warranted with respect to “inappropriate past FCPA investigations and enforcement actions.”

Key Takeaways

We expect the DOJ to keep investigating and pursuing criminal FCPA matters, albeit pursuant to updated guidelines that remain to be seen.

• First, as important as what the EO does is what it does not do. The EO does not repeal the FCPA or the Foreign Extortion Prevention Act (“FEPA”). Bribery of foreign public officials by U.S. companies and individuals and foreign companies and individuals engaging in corrupt practices while in the United States, directly or indirectly, knowingly or through willful blindness, remains a crime. Under FEPA, the “demand side” of foreign bribery is criminalized by prohibiting foreign officials from demanding, seeking, receiving, accepting, or agreeing to receive or accept anything of value from certain individuals and entities.¹
• The last few years have seen an expansion of the FCPA Unit staffing and enforcement toolbox to include additional incentives for companies and employees to report misconduct. These incentives include guidance to promote voluntary self-disclosures, clarify cooperation criteria, and introduce a DOJ whistleblower program.² The EO does not modify existing guidance, suggesting an expectation that companies will continue to conduct internal investigations and work to mitigate risk, consistent with policies currently in place.
• The EO does not express concerns with respect to the impact of criminal FCPA enforcement on foreign companies or individuals with ties to the United States. It is focused on “the global economic competitiveness of American companies.” This may suggest the trend of significant FCPA cases involving non-U.S. companies and individuals will continue, particularly with respect to non-U.S. companies operating in areas of key strategic competition.

Second, the EO does not explicitly impact the SEC, which civilly enforces the FCPA against publicly traded companies.

• Since the inception of the FCPA, the SEC has brought 276 enforcement actions,³ including billions of dollars in penalties, disgorgement, and interest. The SEC has a lower burden of proof than the DOJ and is tasked with regulating publicly traded companies and other offerings on the U.S. exchanges.
• It is unclear how the SEC will react to the EO, but the SEC’s jurisdiction to bring FCPA enforcement actions remains.

Third, the EO aims to link FCPA enforcement to U.S. national security interests, particularly with respect to companies operating in key areas of strategic competition between the U.S. and foreign adversaries.

• The EO highlights industries related to “critical minerals, deep-water ports, or other key infrastructure or assets” as being of interest. We expect forthcoming limitations on criminal FCPA enforcement to be greatest for U.S. companies operating in these arenas.
• While the Biden Administration similarly attempted to link FCPA enforcement to U.S. national security interests, in practice, not all FCPA cases reflected this intent.
• The references in the EO to national security—and the subsequent focus by Attorney General Bondi on national security statutes, such as the International Emergency Economic Powers Act (IEEPA)—suggests that criminal enforcement in related areas, such as sanctions enforcement, may increase.

Enforcement Outlook

The Trump Administration’s shifting priorities for corporate foreign bribery will likely bring increased enforcement risk to companies operating in certain geographies and industries. In line with Attorney General Pamela Bondi’s (“AG Bondi”) February 5, 2025, memo on the “Total Elimination of Cartels and Transactional Criminal Organizations,”⁴ financial institutions and companies in the agriculture, natural resources, infrastructure, defense, food and beverage, life sciences, logistics and transportation, and telecommunications industries may have heightened proximity to cartel and organized crime activity as a result of extortion and the diversification of cartels into business ventures that support illegal activity.

Certain geographies also present higher risk of enforcement under AG Bondi’s new directive. Latin America has long battled the presence of cartels including Tren de Aragua, La Mara Salvatrucha (“MS-13”), the Sinaloa Cartel, the Jalisco New Generation Cartel, and the Clan del Golfo. The Middle East and Africa have elevated rates of illegal arms trafficking,⁵ while Russian organized crime syndicates are also likely to be a focus, as may be organized crime, human and drug trafficking syndicates in Asia. Similarly, we may see an increase in FEPA-related inquiries in these jurisdictions as the Trump Administration targets potential extortion of American companies by foreign public officials to level the competitive playing field. Therefore, investment firms and companies operating or seeking to operate in affected industries within these geographies may experience a heighted risk of inquiry, investigation, and enforcement from U.S. law enforcement agencies and regulators.

Finally, the statutes of limitations for FCPA cases, and related offenses, including money laundering, wire and mail fraud, and conspiracy, extend far beyond the current administration. Despite the shifting U.S. regulatory landscape, global attention to combatting corruption and related risk areas remains a priority. If U.S. enforcement shifts, we may likely see other countries take a more proactive approach to enforce the revenue-generating laws that exist around the world. As a result, companies should remain focused on ensuring they are taking a proactive and holistic approach to risk management, investigation, and remediation that allows safe economic growth taking into account regulator expectations around the world.