On February 10, 2025, President Donald Trump issued an executive order titled, “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security” (“FCPA EO”) that directs the Department of Justice (“DOJ”) to pause enforcement of the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (“FCPA”) for 180 days until new Attorney General (“AG”) Pam Bondi issues new FCPA guidelines and policies on enforcement. The FCPA EO seeks to eliminate “excessive barriers to American commerce abroad,” states that current FCPA enforcement has been “stretched beyond proper bounds and abused in a manner that harms the interests of the United States,” and states that “overexpansive and unpredictable FCPA enforcement against American citizens and businesses . . . actively harms American economic competitiveness and, therefore, national security.” 

For the uninitiated, the FCPA is a criminal statute enacted in 1977, which the DOJ and U.S. Securities & Exchange Commission (“SEC”) have employed to impose over $31 billion in penalties over the last 48 years, as well as secure scores of criminal convictions. During the Biden Administration alone, the DOJ and SEC imposed total penalties over $4 billion under the FCPA, so the fact that President Trump just stopped the DOJ from enforcing the FCPA with a stroke of a pen was a change in the enforcement landscape to say the least.

Trump’s FCPA EO follows a wave of fourteen memoranda issued by AG Bondi last week, aimed at overhauling the DOJ’s enforcement priorities. As part of her first day directives, AG Bondi issued a memorandum titled, “Total Elimination of Cartels and Transnational Criminal Organizations,” (“Total Elimination Memo”) which outlines the DOJ’s “fundamental change in mindset and approach” with the goal of the “total elimination” of Cartels and Transnational Criminal Organizations (“TCOs”).[1] The Total Elimination Memo immediately ends the kleptocracy task forces and shifts the DOJ’s enforcement priority to Cartels and TCOs, including redirecting the DOJ’s FCPA Unit and Money Laundering and Asset Recovery Section (“MLARS”) to prioritize cases involving Cartels and TCOs. 

Key Takeaways from the FCPA EO and Total Elimination Memo

1. The FCPA still remains a valid statute, even though the DOJ is pausing criminal enforcement of it for at least 180 days.
2. The FCPA’s statute of limitations is 5 years, and the EO does not provide violators any legal defense.
3. It is unclear if the SEC will follow the DOJ’s lead or continue to enforce the civil provisions of the FCPA against US issuers.
4. Private lawsuits with an FCPA nexus (typically shareholder suits) are not impacted.
5. The overall risk of FCPA criminal enforcement under the new Trump Administration just decreased significantly. The many pundits who opined that FCPA enforcement would continue unabated in 2025 were wrong.
6. After AG Bondi issues the new FCPA guidelines, companies should review and revise their compliance programs to comport with the new DOJ guidance.
7. Given Trump’s stated view that the FCPA “actively harms American economic competitiveness,” the door may be open for a “Trump discount” on penalties, and companies should seriously consider whether to attempt to resolve any potential FCPA liabilities during the current administration once the new guidelines are issued.

Detailed summaries of the FCPA EO and Total Elimination Memo are below.

FCPA EO

The FCPA EO specifically orders the following:

• For a period of 180 days following the date of this order, the Attorney General shall review guidelines and policies governing investigations and enforcement actions under the FCPA. During the review period, the Attorney General shall:
• cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;
• 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
• issue updated guidelines or policies, 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.

Further, the FCPA EO provides that the AG may extend the review period for an additional 180 days and that any FCPA investigations and enforcement actions initiated or continued after the revised guidelines or policies are issued under subsection (a) must be governed by such guidelines or policies and specifically authorized by the AG. The FCPA EO mandates that after the revised guidelines or policies are issued, the AG must determine “whether additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions, are warranted and shall take any such appropriate actions or, if Presidential action is required, recommend such actions to the President.”

Total Elimination Memo

AG Bondi mandates that for a period of 90 days—to be renewed or made permanent thereafter—the FCPA Unit must prioritize investigations related to foreign bribery that facilitates criminal operations of Cartels and TCOs (e.g., bribery of foreign officials to facilitate trafficking of narcotics and firearms) and “shift focus away from investigations and cases that do not involve such a connection.” The memorandum also suspends the FCPA Unit’s exclusive requirement to authorize, prosecute, and try these bribery FCPA cases and opens the door for U.S. Attorney’s Offices (“USAOs”) nationwide to bring such cases. USAOs need only to provide the FCPA Unit with a “24-hours’ advance notice of the intention to seek charges” and provide any existing memoranda to the FCPA Unit in advance of seeking charges.

Similarly, under the same 90-day constraint, AG Bondi directed MLARS to prioritize investigations, prosecutions, and asset forfeiture actions that target Cartels and TCOs. The memorandum also disbands the Department’s Task Force KleptoCapture, the Department’s Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative within MLARS and redirects their resources towards the total elimination of Cartels and TCOs. Recently, the Task Force KleptoCapture and Kleptocracy Asset Recovery Initiative targeted Russian oligarchs’ assets and enforced sanctions following Russia’s invasion of Ukraine.

The memorandum also:

• Elevates two joint task forces, Joint Task Force Vulcan and Joint Task Alpha, to the Office of the AG to focus efforts on enforcing against Cartels and TCOs, such as Tren de Aragua and La Mara Salvatrucha;
• Proposes legislative reforms to control the manufacture and distribution of fentanyl and counterfeit pills; and
• Suspends approval or authorization requirements for capital-eligible offenses, terrorism and International Emergency Economic Powers Act charges, and racketeering charges related to Cartels and TCOs for a period of 90 days, potentially to be renewed or made permanent thereafter.

[1] The memorandum incorporates elements of President Donald Trump’s January 20, 2025, Executive Order, “Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists,” which designates certain Cartels as Foreign Terrorist Organizations or Specially Designated Global Terrorists, finding that Cartels “institute a national-security threat beyond that posed by traditional organized crime.” See generally, The White House, Executive Order: Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/designating-cartels-and-other-organizations-as-foreign-terrorist-organizations-and-specially-designated-global-terrorists/?utm_source=sfmc&utm_medium=email&utm_campaign=701cx000002bYOAAA2&utm_content=Alert&utm_id=101800&sfmc_id=00Q4W00001dLmZJUA0&subscriber_id=6548422.