Yesterday, DOJ Deputy Attorney General Todd Blanche issued this memo to the head of the DOJ Criminal Division titled “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act.”
The memo begins:
“On February 10, 2025, President Trump signed Executive Order 14209, titled Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025) (Order), to ensure that the FCPA is not “stretched beyond proper bounds and abused in a manner that harms the interests of the United States,” used “against American citizens and businesses … for routine business practices in other nations,” or enforced in a manner that “harms American economic competitiveness and, therefore, national security.” The Order directs the Department of Justice (Department), through the Attorney General, for a period of 180 days, to “(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made; (ii) review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matters to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and (iii) issue updated guidelines or policies [governing investigations and enforcement actions under the FCPA ], as appropriate, to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.”
This memorandum establishes guidelines to ensure that FCPA investigations and prosecutions are carried out in accordance with President Trump’s directive by (1) limiting undue burdens on American companies that operate abroad and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests. Effective today, prosecutors shall focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures; proceed as expeditiously as possible in their investigations; and consider collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation, not only at the resolution phase.
To evaluate whether to pursue FCPA investigations and enforcement actions, prosecutors shall consider the non-exhaustive factors set forth below. The initiation of all new FCPA investigations or enforcement actions must be authorized by the Assistant Attorney General for the Criminal Division (or the official acting in that capacity) or a more senior Department official.”
The memo then lists four “Executive Order Factors” – “Total Elimination of Cartels and Transnational Criminal Organizations,” “Safeguarding Fair Opportunities for U.S. Companies,” “Advancing U.S. National Security,” and “Prioritizing Investigations of Serious Misconduct.”
Under the heading, “Total Elimination of Cartels and Transnational Criminal Organizations,” the memo states:
“On January 20, 2025, President Trump directed the federal government to revise existing strategies to pursue the total elimination of Cartels and transnational criminal organizations (TCOs). This Executive Order determined that Cartels and TCOs “threaten the stability of the international order in the Western Hemisphere” and “present an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.” It also recognized international Cartels’ “infiltration into foreign governments across the Western Hemisphere.”
Implementing this order, on February 5, 2025, Attorney General Pamela J. Bondi issued a memorandum, Total Elimination of Cartels and Transnational Criminal Organizations, that, among other things, directed the FCPA Unit in the Criminal Division’s Fraud Section to prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs and shift focus away from cases that do not involve such a connection. Territories dominated by Cartels, criminal gangs, and other transnational criminal organizations foster instability and violence and threaten the erosion of the rule of law and economic growth. Pursuing the eradication of Cartels and TCOs will require a sustained effort to prosecute their corrupt associates and dismantle the financing mechanisms and shell companies used by these criminal networks. The benefits of eliminating Cartels and TCOs will redound to American enterprise and the Nation as a whole.
Accordingly, one primary consideration in deciding whether to pursue an FCPA investigation or enforcement action is whether the alleged misconduct (1) is associated with the criminal operations of a Cartel or TCO; (2) utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs; or (3) is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs.”
Under the heading, “Safeguarding Fair Opportunities for U.S. Companies,” the memo states:
“Economic growth and expansion of U.S. business opportunities abroad- including U.S. companies’ competitiveness- is critical to safeguarding U.S. national security and economic prosperity. In addition to distorting markets and undermining the rule of law, companies that bribe foreign officials to obtain business can put their law-abiding competitors, including U.S. companies, at a serious economic disadvantage. [A footnote states: The most blatant bribery schemes have historically been committed by foreign companies, as reflected by the fact that the most significant FCPA enforcement actions- measured both by the scope of misconduct and the size of the monetary penalties imposed- have been overwhelmingly brought against foreign companies.] By bribing foreign officials to obtain lucrative contracts and illicit profits- at times hundreds of millions of dollars-corrupt competitors skew markets and disadvantage law-abiding U.S. companies and others for many years.
The Department’s FCPA enforcement will seek to vindicate these interests, not by focusing on particular individuals or companies on the basis of their nationality, but by identifying and prioritizing the investigation and prosecution of conduct that most undermines these principles. Therefore, another important factor prosecutors shall consider is whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals. Similarly, in conducting investigations and prosecutions under the Foreign Extortion Prevention Act, which criminalizes the “demand side” of foreign bribery, prosecutors should consider whether specific and identifiable U.S. entities or individuals have been harmed by foreign officials’ demands for bribes.”
Under the heading “Advancing U.S. National Security,” the memo states:
“American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.” As President Trump’s National Security Strategy from 2017 correctly observed, ” [t]errorists and criminals thrive where governments are weak, corruption is rampant, and faith in government institutions is low. Strategic competitors often exploit rather than discourage corruption and state weakness to extract resources and exploit their populations.” When this corruption occurs in sectors like defense, intelligence, or critical infrastructure, American national security interests may be harmed. FCPA enforcement will therefore focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.”
Under the heading “Prioritizing Investigations of Serious Misconduct,” the memo states:
“The Order instructed that FCPA enforcement should not penalize “American citizens and business” for “routine business practices in other nations.” When conducting investigations, prosecutors must be mindful that the FCPA contains an exception for facilitating and expediting payments, and it provides affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.”
But beyond that, to best advance the priorities articulated above, FCPA investigations and enforcement actions shall not focus on alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies. Rather, the focus of FCPA enforcement will be on alleged misconduct that bears strong indicia of corrupt intent tied to particular individuals, such as substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice. To prioritize cases that warrant investigation by U.S. authorities, FCPA prosecutors should also consider the likelihood (or lack thereof) that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.”
The memo then contains a section titled “Additional Considerations” which states:
“The guidelines set forth herein are not exhaustive. As with every criminal case, myriad factors must be considered when determining whether to investigate or prosecute. In addition to the factors outlined above, prosecutors must also follow other applicable policies and relevant factors. For instance, as in all matters, prosecutors are bound by the Principles of Federal Prosecution, which require consideration of the nature and seriousness of the offenses and the deterrent effect of prosecution, among other factors. Such criteria may be considered when the Department determines whether to authorize particular new FCPA investigations and enforcement actions, consistent with the Order. Similarly, the Department’s interests in pursuing cases that have already entered the judicial process- such as filed indictments and corporate resolutions-versus those that have not, may differ. The Department retains prosecutorial discretion to continue or terminate such actions based on the totality of the circumstances.”
The memo concludes with a section titled “Ongoing Review” which states:
“The Order requires the Department, within 180 days, to review in detail all existing FCPA investigations or enforcement actions and take appropriate action. Cases that have been reviewed have been evaluated based on the principles set forth in this memorandum. All current and future investigations and enforcement actions shall be governed by these guidelines and other applicable policies.”
According to this Wall Street Journal article:
“The department has closed nearly half of its foreign-bribery investigations to align with new guidelines Blanche issued …, according to senior Justice Department officials.”
“The department plans to authorize new investigations, including those based on tips that came in during the period of Blanche’s review, according to senior Justice officials. Those probes will replenish some of the investigative pipeline that was lost when authorities cut cases that didn’t align with their priorities, officials said.
Prosecutors don’t anticipate dismissing any more cases that have already been criminally charged, officials said.”
[…]
The number of prosecutors assigned to work exclusively on foreign-corruption matters has fallen during the Trump administration. About 25 will be involved in the work going forward, according to officials.”
