On February 10, 2025, President Donald Trump signed an Executive Order (EO) titled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.” Among other things, the EO instructs the U.S. Department of Justice (DOJ) not to open any new Foreign Corrupt Practices Act (FCPA) investigations or engage in any “FCPA enforcement” for 180 days, while the U.S. Attorney General (AG) conducts a review of all existing investigations, enforcement actions, policies, and guidelines related to the FCPA.
Although this EO has attracted considerable attention, much remains to be seen about how it will be implemented, the nature and scope of the AG’s review, and what will emerge from that review. Moreover, it is highly unlikely that anticorruption enforcement – or the need to make investments to prepare for and respond to such enforcement – will disappear as a result of this EO.
The Executive Order
After asserting that the FCPA “has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States,” the EO instructs the AG to conduct a 180-day review of “guidelines and policies governing investigations and enforcement actions under the FCPA.” During that 180-day period – which the AG can extend an additional 180 days if “appropriate” – the AG is instructed not to initiate “any new FCPA investigations or enforcement actions,” unless the AG makes “an individual exception” for doing so, based on as-yet-unclear criteria.
The scope of the AG’s review during the 180-day period is sweeping and will include “all existing FCPA investigations or enforcement actions.” The AG is further instructed to “issue updated guidelines or policies” related to FCPA investigations and enforcement actions, and thereafter to “determine whether additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions, are warranted.” The EO neither identifies nor defines the criteria by which past FCPA investigations or enforcement actions might be deemed “inappropriate.”
Finally, in a significant departure from historical practice, the EO directs that all FCPA investigations and enforcement actions “initiated or continued” after the AG issues new guidance must “be specifically authorized” by the AG.
Initial Considerations
The EO does not bind agencies other than the DOJ
The EO is expressly directed at the AG and therefore only affects criminal FCPA enforcement. Left unaddressed by the EO is civil FCPA enforcement, which is conducted primarily by the U.S. Securities and Exchange Commission (SEC), joined in more recent years by the Commodity Futures Trading Commission. The SEC has brought dozens of corporate enforcement actions over the past decade alleging FCPA violations, and though it frequently works in parallel to and benefits from the efforts of the DOJ, its ability to continue investigating and enforcing the FCPA has not been diminished by the EO.
More broadly, there are a multitude of foreign government agencies dedicated to the investigation and prosecution of bribery and corruption of public officials under the laws of their jurisdictions – think of the UK’s Serious Fraud Office enforcing the UK Bribery Act – and of course none of them will be bound by the EO.
How broadly will “FCPA enforcement” be read?
By its terms, the EO only prohibits “new FCPA investigations or enforcement actions” during the 180-day review period. Accordingly, while the opening of new FCPA investigations and the “initiation” of any FCPA enforcement actions – such as charges, pleas, and deferred or non-prosecution agreements – would seem clearly to be off the table during the 180-day review period, further investigative activity in existing matters, especially those closely aligned with apparent Trump Administration priorities such as combatting cartel and transnational criminal organization activities, would not seem to contradict the EO.
The impact of the EO on pending (charged) cases is also far from clear. This includes cases set for trial, cases in which defendants have pleaded guilty but have not yet been sentenced, and other variations of matters currently before or about to be before a court. Will the AG’s review prioritize these cases? Will the DOJ seek a 180-day (or longer) pause in them? If the DOJ does so, how will defendants and courts respond? These are but some of the most urgent questions arising from the EO’s dictates.
How readily will the Attorney General grant “individual exceptions” for new investigations and enforcement actions?
The EO confers upon the AG discretion to “determine[] that an individual exception should be made” to the EO’s prohibition on “new FCPA investigations or enforcement actions.” However, the EO articulates no criteria that are to guide these determinations, leaving it entirely unclear how readily exceptions will be granted. For example, to what extent will they be based on procedural considerations, such as the imminence of a pending enforcement action (e.g., indictment, trial, plea, sentencing)? To what extent will they be based on substantive factors, such as the nature of the target of the investigation, the nature of the target’s conduct, and the jurisdiction where the target’s conduct occurred?
The manner in which the AG exercises discretion in granting or denying these exceptions will reveal much about the extent of FCPA investigations and enforcement during the 180-day review period and will be an early indicator of how the AG might exercise the separate but analogous discretion the EO confers upon the AG to authorize FCPA investigations and enforcement actions after the review period.
Is the EO data-driven?
The EO purports to address “overexpansive and unpredictable FCPA enforcement,” and the Fact Sheet accompanying the EO cites enforcement statistics from 2024 as evidence of “broadened” FCPA enforcement. However, 2024 – when the DOJ entered into a total of eight corporate criminal FCPA resolutions – was a slower year for resolutions than all but one of the years of the first Trump Administration. Indeed, the total number of corporate criminal FCPA enforcement actions under the Biden Administration was nearly 30% lower than under the first Trump Administration. Moreover, aside from the final year of the Obama Administration, the top three years for corporate criminal FCPA enforcement in the past decade all occurred during the Trump Administration.
In a similar vein, the EO asserts that FCPA enforcement “against American citizens and businesses” has been “overexpansive” in a way that has created “excessive barriers to American commerce abroad.” However, over the past five years, less than one-third of corporate criminal FCPA enforcement actions have been directed against U.S. companies.
What about those February 5 DOJ memoranda?
Just five days before President Trump issued the EO, newly installed AG Pam Bondi issued 14 memoranda to DOJ prosecutors, addressing a variety of changes to policies, procedures, and priorities at the DOJ. These memoranda include changes to the DOJ’s FCPA enforcement efforts: in the memorandum titled “Total Elimination of Cartels and Transnational Criminal Organizations,” the AG directs that the DOJ Criminal Division’s FCPA unit “shall prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and T[ransnational] C[riminal] O[rganization]s, and shift focus away from investigations and cases that do not involve such a connection.” For any FCPA investigations and prosecutions involving cartels or TCOs, the AG also suspended DOJ policies requiring authorization by and participation of the DOJ’s Criminal Division.
While the sequencing of the AG’s directive and the EO may create some confusion and questions, they are not incompatible, and it would not be surprising if the new guidelines or policies related to FCPA enforcement that the AG is to issue after the 180-day review incorporate aspects of the memo’s directive.
What about existing DOJ corporate enforcement policies?
The EO’s “pause” on FCPA investigations and enforcement can be expected to further complicate the already fraught decisions companies face when evaluating whether and when to engage with the DOJ on potential FCPA violations. For example, how if at all will the EO’s prohibition on new FCPA investigations during the 180-day review period affect the DOJ’s determination of the “timeliness” of a company’s voluntary self-disclosure? And what amount of cooperation can the DOJ fairly expect and demand of companies while pausing and reassessing its entire FCPA enforcement program? These and other questions will impact companies differently depending on where in the investigation and enforcement timeline they are, but regardless of where they are, the EO can be expected to introduce a plethora of new complexities for all parties – companies, their counsel, and prosecutors.
Looking Ahead
Although the EO directs a “pause” in FCPA enforcement, aspects of the FCPA enforcement landscape over the next 180 days may be less aberrational than preliminary media reports suggest. After all, the first corporate criminal FCPA enforcement action of the first Trump Administration did not occur until September 2017, and the first action of the Biden Administration did not occur until June 2021. An absence of corporate criminal FCPA enforcement actions in the opening months of a new Administration would hardly be unusual.
Moreover, the “pause” required by the EO does not appear to affect existing criminal FCPA investigations, and it plainly does not affect civil FCPA investigations, much less the anticorruption investigations and enforcement actions of foreign authorities. Many companies and individuals currently facing investigative scrutiny into potential FCPA violations are unlikely to be able to go “pencils down” on investigations, and perversely, they may actually experience additional costs as a result of this EO due to the delay of DOJ investigations.
Some key takeaways to keep in mind:
- Anticorruption Enforcement Isn’t Going Away. While unquestionably designed for maximum publicity impact, the EO is limited in its scope: it only pauses certain DOJ FCPA enforcement activities, leaving unaffected – and thus still front of mind for companies – the investigative and enforcement activities of the SEC, CFTC, and foreign enforcement authorities.
- The Details Will Matter. The ultimate and longer-term impact of the EO will depend heavily on the outcome of the AG’s 180-day review, including any new guidelines or policies the DOJ issues following that review and the extent the DOJ Criminal Division’s preeminent role in criminal FCPA investigations is preserved.
- 4 Years < 5 Years. FCPA violations are subject to a five-year statute of limitations, meaning that any violations committed during the current Administration could be prosecuted under President Trump’s successor, who might take a different approach to FCPA enforcement.
- Compliance and Controls: Not a Light Switch. As compliance professionals know well, investments in anticorruption compliance and controls frequently only mature and bear fruit well after they are made. Discontinuing that commitment and those investments in reliance on the EO would be a mistake, not only because of the limited scope of the EO but also because of the likelihood that the landscape will again change in the (relatively) near future.
Alston & Bird’s White Collar, Government & Internal Investigations team will continue to monitor and update as developments in this extremely dynamic space occur.
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