President Trump Signs Executive Order Pausing Enforcement Under the FCPA; Attorney General Bondi Issues 14 Memoranda Realigning DOJ Enforcement Priorities

On Feb. 10, President Donald Trump issued an executive order pausing enforcement under the Foreign Corrupt Practices Act (FCPA or the Act) for a period of at least 180 days and up to 360 days. The order directs Attorney General Pam Bondi to review and update guidelines and policies governing investigations and enforcement actions under the FCPA, with the goal of drastically limiting enforcement under the Act. The order comes less than a week after Attorney General Bondi issued 14 memoranda directing staff at the Department of Justice (DOJ) to shift enforcement priorities to align with the Trump administration’s policies and executive orders. The move has vast implications for corporations facing criminal investigations or prosecutions under the FCPA. However, it is unclear at the time how these orders will affect the SEC’s civil enforcement under the FCPA.

The order threatens to upend a nearly 50-year history of anti-bribery enforcement under the FCPA. Attorney General Bondi has 180 days to conduct the review and issue updated guidelines, with the option to extend that period to 360 days. The order directs the Attorney General to cease initiation of new FCPA investigations or enforcement actions, review all existing FCPA investigations or enforcements, and take remedial actions with respect to past investigations and enforcement actions as necessary to promote President Trump’s stated goals. President Trump declared that FCPA enforcement wastes resources and “actively harms American economic competitiveness and, therefore, national security,” and thus “implicates the President’s Article II authority over foreign affairs.” The updated guidelines will reflect President Trump’s policy objective to “conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.” He characterized FCPA enforcements as “overexpansive” and “unpredictable” against businesses and citizens “for routine business practices” abroad.

Last week, Attorney General Bondi also issued several memos to DOJ staff signaling a shift away from corporate prosecutions and toward focusing on immigration enforcement and the elimination of cartels and Transnational Criminal Organizations (TCOs), among other things. Additionally, the DOJ restored policies on charging, plea bargaining and sentencing that were in effect during President Trump’s first term. The memos with the greatest implications for white collar prosecutions and defense are explained in more detail below. Generally, they demonstrate a drastic de-prioritization of corporate investigations and prosecutions.

Total Elimination of Cartels and Transnational Criminal Organizations

This memo outlines the DOJ’s “fundamental change in mindset and approach.” It instructs the FCPA Unit to shift its focus away from investigations and cases unrelated to the criminal operations of cartels and TCOs. In support of this shift, the memo suspends certain provisions of the Justice Manual to ease authorization requirements for cartel-related prosecutions and removes the requirement that foreign bribery investigations and prosecutions brought under the FCPA be conducted solely by trial attorneys of the Fraud Section. Similarly, the memo directs the Money Laundering and Asset Recovery Section (MLARS) to prioritize cartels and TCOs while disbanding Task Force KleptoCapture, the Kleptocracy Team and the Kleptocracy Asset Recovery Initiative.^[1]

All pending and inbound FCPA investigations and enforcements are paused for 180 to 360 days until the issuance of updated guidelines consistent with President Trump’s executive order. The revised guidelines will likely direct most if not all DOJ resources toward pursuing criminal operations of cartels and TCOs.

General Policy Regarding Charging, Plea Negotiations, and Sentencing

A second memo directs prosecutors to “charge and pursue the most serious, readily provable offense.” This policy was previously in effect under Attorney General Jeff Sessions and was also set out in a 2017 memo. The memo also instructs prosecutors to make charging decisions uninfluenced by their political beliefs or associations in accordance with President Trump’s executive order Ending the Weaponization of the Federal Government. The same directives were issued with respect to plea bargaining, and prosecutors are instructed not to abandon charges to achieve a plea bargain.

The memo also describes the DOJ’s investigative and charging priorities, with further guidance to come. The Department’s enforcement priorities include: (1) immigration enforcement; (2) human trafficking and smuggling; (3) transnational organized crime, cartels and gangs; (4) protecting law enforcement personnel; (5) shifting resources in the National Security Division by disbanding the Foreign Influence Task Force, limiting criminal charges under the Foreign Agents Registration Act (FARA) and disbanding the Corporate Enforcement Unit; and (6) shifting resources away from the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ Alcohol and Tobacco Enforcement Programs and toward the other priorities set out in the memo.

The disbanding of the Corporate Enforcement Unit and the limit in scope of charges under FARA to “conduct similar to more traditional espionage by foreign government actors” are in line with a shift away from corporate investigations and prosecutions.

Other Memoranda

The remaining memos promote various Trump administration policies while dismantling those from the Biden era:

• Rescinding various Biden administration memos in order to promote the lawful use of regulatory authority, likely setting the stage for a future set of rescissions
• Rescinding Biden-era guidance promoting environmental justice efforts
• Restoring guidance from President Trump’s first administration prohibiting the issuance of settlement payments to third parties
• Creating the Weaponization Working Group to investigate the conduct of all federal government enforcement departments and agencies for politically motivated pursuits
• Reviving the federal death penalty, lifting the moratorium on federal executions, and assisting with the implementation of state and local death sentences
• Directing U.S. Attorney’s Offices to pursue death penalty sentences under state law against the 37 defendants whose sentences were commuted by former President Joe Biden
• Mandating a return to full-time in-person work for all DOJ employees
• Eliminating “internal discriminatory practices” at the DOJ
• Prohibiting DOJ attorneys from refusing to sign briefs or appear in court on personal moral grounds and warning DOJ attorneys that any attempt to delay or impede the Department’s mission will lead to discipline and termination
• Investigating DEI programs at private education institutions receiving federal funds
• Establishing a joint task force focused on “seeking justice for victims of the October 7, 2023 terrorist attack in Israel” and combating antisemitism in Israel
• Limiting federal funding for sanctuary jurisdictions

How these shifts in focus are actually implemented remains to be seen. But, if significant wrongdoing is uncovered in what may now be a lower-priority area, it seems unlikely that the DOJ will ignore it.

^[1]_{These programs focused on enforcing Russian sanctions and export restrictions and combating foreign influence in U.S. politics, among other things. Federal prosecutors from the now-disbanded Task Force were nonetheless in court in New York on Feb. 7, two days after the Attorney General’s guidance was issued. They showed no signs of abandoning the case, which involves the forfeiture of a $300 million yacht they claim to be owned by sanctioned Russian billionaire Suleiman Kerimov. Bob Van Voris and Jazper Lu, DOJ Fights to Keep $300 Million Russian Superyacht After Folding Seizure Unit, Bloomberg, Feb. 7, 2025, https://www.bloomberg.com/news/articles/2025-02-07/doj-fights-to-keep-russian-superyacht-after-folding-seizure-unit?leadSource=uverify%20wall.}