FCPA Enforcement Under the Second Trump Administration

Key Takeaways

• On February 10, 2025, President Trump signed an Executive Order pausing all investigations and prosecutions under the U.S. Foreign Corrupt Practices Act (“FCPA”) for at least 180 days.
• The Executive Order, which also calls for new guidelines and policies relating to FCPA investigation and enforcement, heralds what will likely be a significant shift in the Department of Justice (“DOJ”)’s posture vis-à-vis FCPA cases, though the exact contours of that shift are not clear.
• The Executive Order follows a slew of “Day One” memos issued by newly appointed Attorney General Pamela Bondi on February 5, 2025, including one that also sought to temporarily refocus FCPA investigations to pursue cartels and transnational criminal organizations. That effort would also seem to have been paused under the new Executive Order.
• Though the new Executive Order will likely result in fewer FCPA investigations and enforcement actions in the near term, organizations are best served by staying the course on ensuring anti‑bribery and anti-corruption compliance, including with regard to the FCPA—whose five-year statute of limitations could outlast the four-year term of the current administration—and in light of robust anti-corruption enforcement outside the United States. The Executive Order does not change the fact that the FCPA remains the law. 
• Corporate compliance programs have also proven good for business, fostering corporate cultures that are resilient, transparent, and ethical, and mitigating waste and abuse that might otherwise erode the bottom line.

President Trump’s Pause on FCPA Enforcement

Since its enactment in 1977, the FCPA has been the primary legal mechanism in the United States for preventing and punishing corrupt business practices around the world. At a high-level, the FCPA applies to both domestic and foreign companies—though the latter must (1) be publicly traded in the United States and/or (2) take an action in furtherance of a bribe payment while in the territory of the United States to be subject to the FCPA—as well as their officers, employees, and agents. The statute prohibits the paying of bribes to foreign officials in furtherance of business interests. 

On February 10, 2025, President Donald J. Trump issued an Executive Order entitled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security” (“Pause Order”), placing a 180-day pause on investigations and enforcement actions under the FCPA, effective immediately. The administration simultaneously released an accompanying “Fact Sheet.”

In issuing the Pause Order, President Trump stated that since its enactment the FCPA was “systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused.” The Pause Order states that FCPA enforcement is “overexpansive and unpredictable” and charges American citizens and businesses for “routine business practices in other nations,” which has impeded the United States and American companies from economic competitiveness, such as gaining strategic advantages in critical minerals, deep-water ports, and key infrastructure. Over the next 180 days, the Pause Order directs that the Attorney General:

(i) cease initiation of any new FCPA investigations or enforcement actions, unless she determines that an exception should be made;

(ii) review in detail all existing FCPA investigations or enforcement actions with an eye to “restor[ing] proper bounds on FCPA enforcement and preserv[ing] Presidential foreign policy prerogatives”; and

(iii) issue updated guidelines or policies to adequately “prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.”

The Pause Order allows for at least one 180-day extension to the pause, if deemed appropriate by the Attorney General. 

Once the Attorney General’s revised guidelines are issued and FCPA enforcement is allowed to resume, cases will be governed by the updated guidelines and, in a first, must be “specifically authorized by the Attorney General.” Before the Pause Order, the Fraud Section of DOJ’s Criminal Division had this responsibility. In addition, the Attorney General may review prior FCPA cases and take remedial measures or other actions, if the prior cases are deemed “inappropriate” in light of the revised guidelines.

Attorney General Pamela Bondi’s “Day One” Memos

The Pause Order follows on the heels of a series of “Day One” memos published on February 5, 2025, by Attorney General Bondi that de-prioritize and, in some instances, eliminate DOJ enforcement resources designed to combat sanctions violations, foreign lobbying, kleptocrats, and foreign corruption. This included directives disbanding the National Security Division’s Corporate Enforcement Unit and Foreign Influence Task Force, as well as DOJ’s KleptoCapture Task Force, Kleptocracy Team, and Kleptocracy Asset Recovery Initiative.

Among the numerous “Day One” memos that were issued by Attorney General Bondi, one—entitled, “Total Elimination of Cartels and Transnational Criminal Organizations” (the “Cartel/TCO Memo”)—would have directly impacted investigations and prosecutions under the FCPA. In short, the Cartel/TCO Memo directed the FCPA Unit, within the Fraud Section of DOJ’s Criminal Division, to “prioritize FCPA investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs, and shift focus away from investigations and cases that do not involve such a connection” for a 90-day period, subject to renewal by the Attorney General.

That said, the subsequent issuance of the Pause Order leaves unclear what effect, if any, the Cartel/TCO Memo will have on FCPA enforcement. In the near term, the Pause Order would appear to supersede all prior FCPA-related directives. The revised FCPA guidelines or policies issued pursuant to the Pause Order might reinforce and further clarify the priorities and processes outlined in the “Day One” memos, or they might take FCPA enforcement in a different direction.

Implications for FCPA Enforcement

The Pause Order presents a number of significant implications for present and future FCPA enforcement:

• FCPA enforcement under the current Trump administration will be markedly different than during his prior term as president. During the first Trump administration, FCPA enforcement was very robust, with 52 corporate cases and more than $9 billion in penalties. In fact, 2020—the final year of President Trump’s prior term—was a record-breaking year in FCPA enforcement, with nearly $6 billion in penalties that year alone.
• For at least the next 180 days, no new FCPA investigations will be opened and no new FCPA charges will be brought, unless the Attorney General makes an explicit exception.
• At this point, it is difficult to predict with any certainty what the new guidelines might provide and, therefore, what trajectory FCPA enforcement will take. There are, however, some clues provided in the Pause Order: 
• The Pause Order suggests that U.S. companies that pay bribes to foreign officials to obtain resources—such as critical minerals, deep-water ports, and key infrastructure, as discussed above—deemed by the administration to be of national security or economic interest to the United States are likely not to be prosecuted under the FCPA. 
• On the other hand, the FCPA may be wielded to target foreign companies paying bribes to obtain these same resources, especially if the companies are from countries viewed by the administration as an economic or national security threat to the United States. Whether the FCPA would actually apply to any such company would vary—for example, while many Chinese companies are not publicly traded in the United States and do not do business within U.S. territory, various Latin American companies are more likely to tick one or both of the FCPA’s jurisdictional boxes.
• With the Attorney General’s new mandate to “review in detail all existing FCPA investigations or enforcement actions,” there will likely be a de novo review of pending investigations and cases. Defense counsel for companies and individuals may leverage the situation to close out long‑pending investigations and dismiss pending criminal charges. 
• The Pause Order’s provision empowering the Attorney General to review past FCPA investigations and enforcement actions against the revised guidelines could result in companies and individuals seeking to undo past enforcement actions and convictions. It is unclear what remedies will be available if DOJ reverses course on these closed matters.
• As presently drafted, the Pause Order only applies to DOJ enforcement of the FCPA and does not address the role of the U.S. Securities and Exchange Commission (“SEC”) in FCPA enforcement. We do not yet know whether the SEC will be subject to similar directives, though it seems likely that some measures will be attempted to bring SEC’s enforcement in line with the Trump administration position, regardless of its status as an independent agency.
• Any FCPA enforcement guideline that prioritizes U.S. economic interests over anti-corruption enforcement would almost certainly be deemed to be a violation of Article 5 of the Organisation for Economic Co-operation and Development (“OECD”) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the “OECD Anti-Bribery Convention”). Article 5 provides that “investigation and prosecution of the bribery of a foreign public official shall . . . not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.” Given the express intent of the Pause Order, however, it appears unlikely that the guidelines would be written to avoid such a violation.
• The next quarterly meeting of the OECD Working Group on Bribery is set for March 11‑14, 2025. The United States has long been an active member within the Working Group, which is responsible for monitoring the implementation and enforcement of the OECD Anti-Bribery Convention. It is very likely that these recent developments will be a serious point of discussion, and likely critique, at that meeting.

Filling the Void

Regardless of the Trump administration’s approach to FCPA enforcement, anti-bribery and anti‑corruption enforcement around the globe is unlikely to abate. Though the FCPA was a pioneering statute when it was enacted in 1977, it is no longer the only foreign bribery law. While the United States has been the largest enforcer internationally, in the wake of the OECD Anti-Bribery Convention, UN Convention Against Corruption, and similar conventions, more than 40 countries across the globe have adopted FCPA-like foreign bribery laws. Indeed, in recent years, various countries have brought bribery and corruption enforcement actions imposing billions of dollars in penalties and prosecuting numerous business executives, including Brazil, Ecuador, France, Germany, the Netherlands, South Africa, Switzerland, and the United Kingdom. Meanwhile, various other jurisdictions, including Australia, China, and Japan, have meaningfully strengthened their anti-corruption mechanisms and related corporate guidelines. And, of course, bribery remains illegal in the countries in which bribes are paid.

Conclusion

While much remains uncertain about the impact on future FCPA investigations and enforcement, one thing remains clear: organizations remain best served by maintaining robust anti-bribery and anti‑corruption compliance programs. Even if investigations and enforcement are circumscribed in the near term, the FCPA remains the law. The applicable statute of limitations for the FCPA will outlast the four‑year term of the current administration. Accordingly, organizations should be circumspect in re‑prioritizing compliance resources in reaction to recent events. Anti-corruption compliance programs and compliance investigations remain critical to preventing and remediating violations of law and are simply good for business: these programs not only help prevent and detect bribery, but also help prevent and detect embezzlement, self-dealing, and conflicts of interest; limit fraud, waste, and abuse; and enhance organization-wide accountability. Further, maintaining a concrete record of compliance and remediation may prove crucial if questions are ever raised, in the near term, by the next administration, or by another jurisdiction.