Clifford Chance

On June 9, 2025, Deputy Attorney General ("DAG") Todd Blanche issued the Department of Justice's ("DOJ") long-awaited and expected "Guidelines for Investigations and Enforcement of the Foreign Corrupt Practice Act" ("Guidelines").^[1] 

Shortly after his inauguration, President Trump signed a February 10, 2025 Executive Order 14209 ("EO") directing the Attorney General to "pause" FCPA enforcement, review its guidelines and policies regarding the FCPA, and stop the initiation of any new FCPA investigations or enforcement actions for a period of 180 days.^[2] The Guidelines respond to the EO as well as Attorney General Pam Bondi's February 5, 2025 memorandum, "Total Elimination of Cartels and Transnational Criminal Organizations" (the 'Bondi Memo"), which directs the DOJ's FCPA Unit to "prioritize 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."^[3] What the Guidelines and subsequent DOJ leadership remarks make clear is that the DOJ is not walking away from enforcement of laws targeting white collar crime, but rather will continue to enforce these laws, guided by a new set of priorities and prosecutorial criteria. For companies and executives, compliance must remain a top priority.

While the Guidelines end the EO's FCPA "pause," they significantly refocus DOJ enforcement priorities to "vindicate" U.S. interests. In June 10 parallel remarks at the American Conference Institute Conference on Global Anti-Corruption, Ethics & Compliance, the Head of DOJ’s Criminal Division Matthew Galeotti offered further insight into the new approach inaugurated by the Guidelines, as well as how the DOJ currently views white collar enforcement more broadly, building off his May 12 Memorandum, "Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime."^[4] Namely, Mr. Galeotti stressed that the new FCPA enforcement posture is "not about the nationality of the subject or where the company is headquartered" but rather prosecuting conduct that "genuinely impacts the United States or the American people."^[5]

Pursuant to the EO, all ongoing FCPA matters have been under review, and future investigations and enforcement actions will be governed by the Guidelines. Notably, following the issuance of the EO, both DOJ and the Securities and Exchange Commission ("SEC") have cut their enforcement dockets by closing FCPA cases and undergone leadership and staffing transitions in DOJ's Fraud Section and the SEC's FCPA Unit. 

New Enforcement Guidelines Take Targeted Approach

The Guidelines clarify the Trump Administration's FCPA enforcement posture, emphasizing a targeted approach that "[requires] the vindication of U.S. interests" and implement White House priorities, as set out in the February EO, by "(1) limiting undue burdens on American companies that operate abroad and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests." To that end, the Guidelines set out criteria by which prosecutors should evaluate whether to pursue an FCPA investigation or enforcement action.

While non-exhaustive, the Guidelines articulate four key principles derived from the EO that federal prosecutors must consider when weighing whether to pursue FCPA enforcement actions. The Assistant Attorney General for the Criminal Division—or a more senior DOJ official—must approve the initiation of any new FCPA action.

1. Total Elimination of Cartels and Transnational Criminal Organizations
   In line with the Trump Administration's broader concern with transnational crime—and as directed by the Bondi Memo—FCPA enforcement actions and investigations will be guided by a significant focus on Cartels, transnational criminal organizations ("TCOs"), and foreign terrorist organizations ("FTOs"). Specifically, prosecutors must assess whether the accused actor "(1) is associated with the criminal operations of a Cartel or TCO; (2) utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs; or (3) is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs." 
2. Safeguarding Fair Opportunities for U.S. Companies
   The Guidelines orient FCPA enforcement as a tool to ensure that U.S. companies are empowered to compete abroad, deeming such economic growth "critical to safeguarding U.S. national security and economic prosperity." To that end, another key factor for prosecutors will be "whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals." Similarly, the Guidelines note that when enforcing the Foreign Extortion Prevention Act, 18 U.S.C. § 1352, prosecutors should assess whether U.S. entities or individuals were harmed by foreign officials' bribe demands.
3. Advancing U.S. National Security
   The Guidelines also enunciated that national security threats will remain a key determinant of future FCPA enforcement actions. These will include "the most urgent threats" involving key sectors like defense, intelligence, and critical infrastructure.
4. Prioritize Investigations of Serious Misconduct
   The Guidelines, again echoing the February EO, emphasize that FCPA enforcement should not penalize American businesses for routine business practices in foreign countries. Prosecutors are instructed to focus on significant misconduct rather than minor or customary business courtesies.^[6] As such, the enforcement priority will be on "alleged misconduct that bears strong indicia of corrupt intent tied to particular individuals," such as substantial bribes, sophisticated concealment efforts, fraudulent conduct related to bribery and attempts to obstruct justice. Additionally, U.S. authorities should consider the likelihood of foreign enforcement when deciding to pursue cases. In his June 10 remarks, Mr. Galeotti added that enforcement would focus on conduct that "genuinely impacts the United States or the American people," leaving "that does not implicate U.S. interests …to our foreign counterparts or appropriate regulators."

Beyond these four principles, the Guidelines instruct prosecutors to consider other limiting principles when pursuing FCPA enforcement. These considerations include focusing on cases in which individuals have engaged in misconduct, i.e., "not [attributing] nonspecific malfeasance to corporate structures;" proceeding "as expeditiously as possible in their investigations;" and considering the "collateral consequences" of such investigations, including the "potential disruption" to a given company's lawful business and employees.

Criminal Division Offers Additional White Collar Enforcement Guidance

In his speech, Mr. Galeotti also clarified key aspects of his May 12 Memorandum on the DOJ's broader white collar enforcement priorities."^[7] He highlighted that "the Criminal Division has not and will not close meritorious investigations or dismiss meritorious cases," and cautioned parties seeking to escalate requests to be cautious in seeking "premature relief" or "mischaracterizing prosecutorial conduct." Further, as it concerns the large suite of white collar and corporate crime that DOJ enforces beyond the FCPA, Mr. Galeotti provided the following three key points:

1. Declinations: Companies that voluntarily self-report, cooperate, and remediate "will receive a declination, not just a 'presumption'." Mr. Galeotti underscored that the policy is not intended as a "gotcha" tactic. He further pointed to the revised Corporate Enforcement Policy (CEP), which has narrowed the definition of "aggravating factors" to provide more transparency and certainty for companies considering self-reporting.
2. Monitorships: Mr. Galeotti noted that the Criminal Division is finishing its review of all corporate monitors, already choosing to terminate some. He further downplayed the continued importance of monitors, noting that they are intended "to be a temporary bridge and accountability measure to move a company quickly and efficiently to full compliance."
3. Prosecutorial Efficiency: Mr. Galeotti emphasized that DOJ would, as a matter of priority, proceed efficiently in its investigations and when making charging decisions. Specifically, he emphasized that "the Criminal Division will do its part to charge or decline quickly."

Key Takeaways.

Together, the DOJ’s Guidelines and Mr. Galeotti's remarks indicate that the DOJ's FCPA "pause" has concluded and enforcement is here to stay, guided by a new set of priorities and prosecutorial criteria that aligns with the Trump Administration's focus on curbing transnational crime while ensuring that U.S. businesses are empowered to compete abroad.

Thus, any companies—especially non-U.S. competitors of U.S. companies—that may have deprioritized anti-bribery compliance in light of the EO should re-focus their efforts on FCPA compliance. Moreover, while the enforcement lens has narrowed, DOJ continues to emphasize prosecuting individuals and serious misconduct. 

Though the Guidelines do not expressly reference corporate compliance programs, Mr. Galeotti's parallel remarks to compliance professionals emphasize the importance of reporting potential crimes, rooting out misconduct, cooperation, and remediation. Robust compliance programs remain essential to detect and prevent high-risk behavior, and companies should ensure policies reflect DOJ’s emphasis on individual misconduct, national security concerns, and strategic sectors.

Companies should also evaluate their compliance efforts in light of the Guidelines' "primary consideration" surrounding activities with a nexus to TCOs, Cartels, or FTOs. DOJ is prioritizing the investigation and prosecution of misconduct linked to these entities, emphasizing the need for companies to proactively ensure compliance, especially when operating in geographic regions with a significant cartel or TCO presence. Considering the January 20, 2025 EO 14157 designating Cartels and other TCOs as FTOs and Specially Designated Terrorist Organizations,^[8] the DOJ may pursue FCPA enforcement in tandem with terrorism-related statutes, such as the provision of material support to terrorist groups as proscribed by the Anti-Terrorism Act, 18 U.S.C. 2339B. Nonetheless, companies should note that while the DOJ's FCPA enforcement focus has narrowed, the statutory regime itself remains unchanged; these Guidelines do not amend the law, and the statute of limitations for alleged misconduct remains in place.^[9]

Companies should also consider if their activities impinge on other identified high-risk sectors, including those related to U.S. national security interests involving critical infrastructure, defense, and natural resources. ^[10]

Companies should also expect increased enforcement action by U.S. foreign counterparts and regulators, especially where the underlying conduct lacks a nexus to identified U.S. interests.

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[1] Memorandum from the Deputy Attorney General, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act, (June 9, 2025), https://www.justice.gov/dag/media/1403031/dl. 

[2] Executive Order 14209, Pausing Foreign Corrupt Practices Act Enforcement To Further American Economic and National Security, (Feb. 10, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/pausing-foreign-corrupt-practices-act-enforcement-to-further-american-economic-and-national-security/ ("EO 14209").

[3] Memorandum from the Attorney General, Total Elimination of Cartels and Transnational Criminal Organizations, (Feb. 05, 2025), https://www.justice.gov/ag/media/1388546/dl?inline. 

[4] Memorandum from the Head of the Criminal Division, Focus, Fairness, and Efficiency in the Fight Against White Collar Crime, (May 12, 2025), https://www.justice.gov/criminal/media/1400046/dl?inline (May 12 Memorandum).

[5] Press Release, Department of Justice, Head of Justice Department's Criminal Division Matthew R. Galeotti Delivers Remarks at American Conference Institute, (June 10, 2025), https://www.justice.gov/opa/pr/head-justice-departments-criminal-division-matthew-r-galeotti-delivers-remarks-american. 

[6] The FCPA already allows for exceptions, such as facilitating payments and legitimate business expenditures, and provides as an affirmative defense action lawful under the foreign country's written laws.

[7] See May 12 Memorandum (link). 

[8] Executive Order 14157, 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/.

[9] Criminal offenses under the anti-bribery provisions of the FCPA are subject to a five-year statute of limitations ("SOL"). The DOJ can also toll the SOL for a period of three years while they seek foreign evidence. See 18 U.S.C. § 3292. 

[10] The February EO provided illustrative examples, including "critical minerals, deep-water ports, or other key infrastructure or assets." EO 14209, (link).