In my article “Revisiting a Foreign Corrupt Practices Act Compliance Defense” (Wisconsin Law Review – here ), I highlight that against the backdrop of the DOJ’s current institutional opposition to an FCPA compliance defense, there is growing chorus of former DOJ officials who support a compliance defense. This group includes a former Attorney General (Michael Mukasey), a former Deputy Attorney General (Larry Thompson), a former Chief of the DOJ’s FCPA Unit (Joseph Covington), and former high-profile corporate crime prosecutor (Andrew Weissmann).
Add another former Attorney General to the list.
In a May speech (here ) to the Lawyers for Civil Justice, Alberto Gonzalez (Attorney General 2005-2007) stated as follows. “I do not support bribery, but I support reforms to the FCPA that adds a compliance defense and a willfulness requirement for corporate criminal liability.”
On this topic, Gonzalez stated, for instance, as follows.
“I think that companies have an obligation of due diligence and should have in place a strong compliance program – particularly when doing business in countries where corruption is routine and expected. Companies cannot purposefully remain ignorant. The question is how much do they have to do? I think if the company follows the DOJ Principles of Prosecution: 1) makes a voluntary disclosure of wrongdoing, 2) if there was no participation in the illegal conduct by senior management, 3) if there is full cooperation with the government, including providing evidence and information against employees, officers, directors, and agents of the company, 4) if the company implements remedial measures to prevent future violations, including disciplining culpable employees, implementing internal controls, and improving anticorruption training, and 5) if the company has in place a strong compliance program before the alleged behavior happened, then I question the fairness in going after the company for the unknown violations by an agent in a foreign land.” (emphasis added).
In his speech, Gonzales also offered this perspective from his time as Attorney General.
“Because of the increased American business activity overseas, we made a conscious decision during the Bush Administration to allocate more time and resources to FCPA enforcement. And we quickly discovered two important truths. One, the FCPA gives prosecutors tremendous discretion in defining its scope, and, thus, tremendous leverage in charging decisions. Two, corporations do not like to be investigated by the Justice Department or the SEC for violations of the FCPA. It’s bad for business. So, these cases often settled, charges were dropped in exchange for either nonprosecution or deferred prosecution agreements. In an ironic twist, the more that American companies elect to settle and not force the DOJ to defend its aggressive interpretation of the Act, the more aggressive DOJ has become in its interpretation of the law and its prosecution decisions.”
For more on this dynamic, see my 2010 article “The Facade of FCPA Enforcement” (Georgetown Journal of International Law – here ).