Acting Assistant Attorney General Nicole Argentieri On ….
Once again, life follows a certain cycle.
March.
Lots of basketball, the days get longer, and a high-ranking DOJ official speaks at a white-collar crime conference.
First, it was Deputy Attorney General Lisa Monaco (see here for the prior post). The next day it was Acting Assistant Attorney General Nicole Argentieri at the same conference.
Argentieri framed her speech as a discussion of the “Criminal Division’s unyielding efforts to combat white collar crime” and she discussed the following topics: individual accountability, DOJ corporate enforcement policies, the DOJ’s new forthcoming whistleblower program, and the recently enacted Foreign Extortion Prevention Act.
A Debate About The Foreign Extortion Prevention Act
A few years ago, Tom Firestone and I had a debate about certain aspects of the Foreign Extortion Prevention Act (“FEPA”) after he wrote an article proposing the criminalization of demand side bribery. (See here and here).
Now that FEPA has passed, we thought that it would be a good idea to discuss what its passage means and how it is likely to be implemented. Below are some key questions about FEPA and our respective answers.
Was FEPA even needed to fill a “legal gap”?
Who Needs FEPA?
As long as political actors have existed, political actors have taken credit for filling a perceived legal gap by enacting new laws.
Time will tell of course, but query whether the recently enacted Foreign Extortion Prevention Act (FEPA) (a law which seeks to capture the so-called “demand” side of foreign bribery) was even needed.
As has been discussed on these pages over the last several years when various versions of FEPA were introduced in Congress, the Department of Justice already has several criminal statutes available to prosecute alleged “foreign officials” who receive bribes and has been prosecuting such cases for a long time.
Two examples occurred in just the past few weeks while much attention has been focused on FEPA and how it plugs a purported legal gap.
In The Words Of J.T. Smith
Future posts will discuss the recently enacted Foreign Extortion Prevention Act (FEPA) and how it turns U.S. anti-corruption enforcement into a muddy mess when the much more practical and simple solution to capture the so-called “demand” side of foreign bribery was to amend the FCPA (see here for suggested FCPA amendments).
Nevertheless, the purpose of this post is to go back approximately 45 years to highlight the policy gap filled by FEPA – a policy gap that has long been recognized.
In the mid-1970’s Congress held numerous hearings over several years to address the so-called foreign corporate payments program. (“The Story of the Foreign Corrupt Practices Act” provides a detailed overview of the FCPA’s legislative history).