On February 10, 2025, President Trump signed an Executive Order (EO) directing Attorney General Pam Bondi to halt ongoing enforcement by the Department of Justice (DOJ) in all active prosecutions brought pursuant to the Foreign Corrupt Practices Act (FCPA). The EO also requires the DOJ to cease opening any new investigation or filing any enforcement action until the Attorney General issues new guidelines that prioritize American interests and promotes “American economic competitiveness.”
Specifically, President Trump’s EO pauses DOJ enforcement of FCPA actions for 180 days while the Attorney General reviews FCPA policies and guidelines to effectuate the Trump administration’s new directives. Attorney General Bondi has already issued a memorandum directing federal prosecutors to redirect their enforcement focus to prioritize foreign bribery prosecutions in the context of drug trafficking and money-laundering operations by transnational criminal organizations. The memorandum also abolishes DOJ’s FCPA Unit and Money Laundering and Asset Recovery Section’s exclusive jurisdiction and oversight over these types of cases.
In support of the EO, the preamble states that the FCPA has been “stretched beyond proper bounds and abused in a manner that harms the interests of the United States” through “overexpansive and unpredictable FCPA enforcement against American citizens and businesses” that penalizes “routine business practices in other nations” and thereby “harms American economic competitiveness.”
This directive reflects a shift toward “revised, reasonable enforcement guidelines” in an effort to level the playing field for US-based companies doing business abroad and end FCPA enforcement that prohibits them from engaging in practices common among international competitors. At this time, it is impossible to predict the future of FCPA enforcement. The EO-imposed freeze on federal criminal enforcement extends only for 180 days, and conditioned lifting the enforcement freeze on the adoption of new FCPA guidance.
For almost 50 years, the FCPA has been a jack-of-all-trades tool chest for federal prosecutors to investigate and curtail corruption across all industries. Congress enacted the FCPA in 1977 to deter American companies from engaging in the practice of paying bribes to foreign government officials and intermediaries in efforts to obtain or facilitate work abroad. The FCPA also added accounting provisions to the federal securities laws that requires issuers to keep accurate books and records and maintain internal controls. However, the enforcement of the FCPA extends only as far as American jurisdiction can reach, and the statute makes it unlawful for companies that issue stock listed on a US stock exchange, or their officers, directors, employees, or agents, to pay foreign officials in return for assistance in obtaining or retaining business.
These new policies do not mean that companies should eliminate their FCPA compliance efforts, but clients across all industries, both foreign- and domestic-based, should seek advice from outside counsel regarding the potential ramifications of the Trump administration’s shift in FCPA enforcement policy. It is important to note that this policy shift does not repeal the law and it remains unlawful to violate the FCPA. Any future administration could realign its enforcement priorities and reinstitute criminal enforcement. Moreover, companies and individuals can still face civil sanctions from the SEC, as well as private litigation and foreign criminal and civil enforcement. The Government Investigations & White Collar Criminal Defense group at McCarter & English will continue to monitor the impact of these policy changes and will watch closely as new DOJ guidelines may further impact FCPA actions and investigations.