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The Purported Trump / Tillerson FCPA Exchange Is Old News … In Any Event, Some Context

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As one who closely follows news related to the Foreign Corrupt Practices Act, I was surprised over the past few days about the amount of coverage given to a purported exchange between President Trump and Secretary of State Rex Tillerson about the FCPA.

The originating source for this coverage was a relatively minor blurb in this New Yorker article. What surprised me (and you certainly would not know this from reading the New Yorker article because it doesn’t mention this) is that the purported exchange was widely reported back in March.

This post highlights how this is an “old news” item, provides facts about FCPA enforcement during the first 8 months of the Trump administration, and demonstrates that President Trump is far from the only politician to raise concerns about the FCPA and its enforcement. Indeed, Democrats and Republicans have long done the same thing.

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Attorney General Nominee Jeff Sessions – “I was taught if they violated a law, you charge them. If they didn’t violate the law, you don’t charge them.”

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Non-prosecution agreements and deferred prosecution agreements have distorted many areas of law, perhaps none more than the Foreign Corrupt Practices Act.

As highlighted in the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement,” since introduced to the FCPA context in 2004, alternative resolution vehicles have become the dominant way the DOJ resolves corporate FCPA scrutiny and serve as an obvious reason for the general increase in FCPA enforcement over the past decade. To the many cheerleaders of increased FCPA enforcement, NPAs and DPAs are thus worthy of applause.

Yet in a legal system based on the rule of law, quality of enforcement is more important than quantity of enforcement. Through empirical data and various case studies, the above article measures the impact NPAs and DPAs have on the quality of FCPA enforcement and concludes that NPAs and DPAs — while resulting in higher quantity of FCPA enforcement — result in lower quality of FCPA enforcement.

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Let’s All Take A Deep Breath When It Comes To FCPA Enforcement In The Trump Administration

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Sure FCPA Professor published this post (as it has at various other points during Donald Trump’s campaign for President) hours after it became clear that Trump was the President-Elect.

The post did not offer any predictions of FCPA enforcement in a Trump administration, but rather concluded with the same conclusion the post has had since 2012 when it was first published. That being, Trump likely conflated the issues – as many commentators have – between the FCPA (the law) and how the FCPA is enforced. (For more on this dynamic, see this prior post).

In the past few days, there have been certain predictions about FCPA enforcement in a Trump administration.

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