President Trump Signs EO Pausing FCPA Enforcement

President Trump signed an Executive Order directing the Attorney General to "cease initiation of any new [Foreign Corrupt Practices Act] investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made."

In the EO, the President asserted that "the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (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 President emphasized that "current FCPA enforcement impedes the United States' foreign policy objectives and therefore implicates the President's Article II authority over foreign affairs."

The President stated that "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." He further explained that "overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security."

The EO directs the Attorney General to:

• "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." 
• "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." 
• determine "whether additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions, are warranted."
• "take any such appropriate actions or, if Presidential action is required, recommend such actions to the President."

The EO allows for an extension of the review period for "an additional 180 days as the Attorney General determines appropriate." The Order states that FCPA enforcement actions "must be specifically authorized by the Attorney General" and "shall be governed by such guidelines or policies" issued following the review.