Foreign Corrupt Practices Act enforcement officials frequently invoke national security and foreign affairs when talking about FCPA enforcement
Here are just a few recent quotes:
“We stand at a critical juncture in the fight against transnational corruption. And the importance of this fight cannot be overstated. The impact of corruption is unambiguous. Because of the efforts of prosecutors in countries across the globe—some of them the very definition of high risk—the curtain has been ripped back/ revealing deep-rooted and pervasive corruption up to the highest levels of governance/ and putting on display for the world to see its devastating effects:
The way that corruption undermines the rule of law and destabilizes economies; the link between corruption and terrorism and the attendant threat to global security; the erosion of the free and fair market and, with it, the public’s confidence.” (See here).
“Anti-corruption prosecutors everywhere are driven by similar principles: bribery of public officials is wrong, it has a devastating effect on our national security and civilized societies, and intentional violations of anti-corruption laws must be treated as serious crimes.” (See here).
“You may be asking yourself why the U.S. Justice Department is involved in the fight against corruption abroad. In fact, there are people who claim that taking aim at foreign bribery puts U.S. companies at a competitive disadvantage in countries where bribery is just business as usual.
The threats posed to the United States by international corruption, however, cannot be overlooked. Foremost, corrupt countries are less safe. Corruption thwarts economic development, traps entire populations in poverty, and leaves countries without a credible justice system.
[…]
“[F]ighting foreign corruption is not a service we provide to the global community, but rather a necessary enforcement action to protect our own national security interests and the ability of our U.S. companies to compete on a global scale.” (See here).
Numerous corporate FCPA enforcement actions are resolved by the DOJ through deferred prosecution agreements (not to mention non-prosecution agreements, and with increasing frequency so-called declinations with disgorgement).
But here is the seeming mismatch.
The U.S. Attorneys’ Manual (“a quick and ready reference for United States Attorneys, Assistant United States Attorneys, and [DOJ] attorneys responsible for the prosecution of violations of federal law”) says that pre-trial diversion (which is what DPAs amount to) are not to be used when someone is “accused of an offense related to national security or foreign affairs.”
Specifically, Section 9-22.100 of the U.S. Attorneys’ Manual provides the following “eligibility criteria” for pre-trial diversion.
“The U.S. Attorney, in his/her discretion, may divert any individual against whom a prosecutable case exists and who is not:
- Accused of an offense which, under existing Department guidelines, should be diverted to the State for prosecution;
- A person with two or more prior felony convictions;
- A public official or former public official accused of an offense arising out of an alleged violation of a public trust; or
- Accused of an offense related to national security or foreign affairs.”
Sure, the above criteria specifically mention “individuals” (presumably natural persons) leaving open the question of whether they do, or ought to, apply to “legal” persons.
Yet there seems to be a mismatch.
FCPA enforcement officials frequently link FCPA enforcement to national security and foreign affairs, yet the U.S. Attorneys’ Manual states that pre-trial diversion is not be used when someone is “accused of an offense related to national security or foreign affairs.”
