FCPA Enforcement: Back With a Twist? DOJ Issues New FCPA Guidelines Following Trump Executive Order

On June 9, 2025, Deputy Attorney General (DAG) Todd Blanche issued a memorandum titled, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) (the Guidelines). The Guidelines result from recent directives from President Trump and the U.S. Department of Justice (DOJ) that revise DOJ’s priorities for criminal enforcement of the FCPA. Specifically, in his executive order titled, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Executive Order), President Trump ordered a 180-day “pause” on FCPA enforcement and directed Attorney General Pam Bondi to review and update existing FCPA guidelines and policies. Although the Guidelines do not officially lift the 180-day “pause,” they suggest that FCPA enforcement now may move forward, albeit in a manner consistent with the administration’s priorities and new DOJ procedures.

At a conference on June 10, 2025, the Head of DOJ’s Criminal Division, Matthew R. Galeotti, summed up the “through-line” of the Guidelines as “requir[ing] the vindication of U.S. interests.” Indeed, the Guidelines attempt to tailor FCPA enforcement to limit “undue burdens” on U.S. companies operating abroad and to prioritize enforcement actions involving conduct that “directly undermines U.S. interests.” To that end, the Guidelines provide a “non-exhaustive” list of factors that prosecutors must consider when evaluating whether to pursue FCPA investigations and enforcement actions, many of which track DOJ’s stated white-collar enforcement priorities. Galeotti made clear that DOJ’s FCPA considerations are not limited to the enumerated factors, and that “[n]o one factor is necessary or dispositive.”

Key takeaways from the enumerated factors include the following:

• Continued focus on cartels and transnational criminal organizations (TCOs). Consistent with prior directives from President Trump and DOJ, a “primary consideration” for initiating FCPA investigations and enforcements actions should be whether the alleged misconduct involves cartels, TCOs, or involves money laundering by shell companies or others dealing with cartels and TCOs.
• Safeguarding fair opportunities for U.S. companies. While President Trump’s Executive Order had suggested that “overexpansive and unpredictable” FCPA enforcement harms U.S. citizens and companies by stifling “American economic competitiveness,” the new Guidelines recognize that FCPA violations by “corrupt competitors” also can disadvantage U.S. citizens and businesses and distort markets. The Guidelines note that, historically, many of the “most significant FCPA enforcement actions” have been brought against foreign companies. In addition to protecting American economic interests through the FCPA, the Guidelines indicate that DOJ may make use of the Foreign Extortion Prevention Act, which criminalizes the receipt of bribes by foreign officials (i.e., the “demand side” of foreign bribery).
  
  The apparent solicitude for U.S. companies raises interesting questions about what, in a globalized economy, counts as a U.S. company. Would a U.S. subsidiary of a foreign parent company count? How about a company headquartered abroad that sells stock in the U.S. and has most of its employees and operations here?
• Prioritizing threats to U.S. national security. In addition to focusing on cases involving cartels and TCOs, DOJ may prioritize FCPA cases when “corruption occurs in sectors like defense, intelligence, or critical infrastructure.” FCPA enforcement should focus on the “most urgent” threats to U.S. national security that result from foreign bribery “involving key infrastructure or assets.”
• Focus on individual, not corporate, liability. In the words of DAG Blanche, “[e]ffective today, prosecutors shall focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures.” In other words, DOJ attempts to separate individual bad actors from the corporate structures in which they operate. The focus on individual, rather than corporate, liability appears to stem from DOJ’s concern that burdensome, lengthy criminal investigations stymie U.S. business interests. Going forward, FCPA investigations and enforcement actions should not focus on misconduct involving “routine business practices” or de minimis or low-dollar corporate misconduct, but should focus on “serious misconduct” tied to particular bad actors, including bribe payments and efforts to obstruct justice. DOJ may also take a more expansive view of the traditionally narrow exception to FCPA liability for “facilitating” or “expediting” payments, which are made in furtherance of routine government action.

As for process, the Guidelines require that all new FCPA investigations and enforcement actions be authorized by the head of DOJ’s Criminal Division or by a more senior DOJ official. This requirement appears to deviate from the mandate in President Trump’s Executive Order that the Attorney General herself specifically authorize any new FCPA investigations or enforcement actions following the issuance of revised guidelines. Additionally, the Guidelines emphasize that prosecutors should “proceed as expeditiously as possible” and “consider collateral consequences, such as the impact on a company’s employees, throughout an investigation, not only at the resolution phase.”

The Guidelines suggest that FCPA enforcement is likely here to stay, perhaps just with a twist. Although the effects of the revised Guidelines remain to be seen, it is important to remember that bribery remains illegal not just under the FCPA, but under a host of other state and federal laws and the laws of other countries. Moreover, anti-corruption compliance programs often serve goals beyond mere legal compliance — they help establish ethical standards for doing business, foster confidence in management, set clear expectations for employees and business partners, ensure transparency within an organization, prevent waste of corporate assets, encourage fair competition, and deter demands for bribes.

Stay tuned as we continue to monitor developments in FCPA enforcement trends here on Enforcement Edge. For questions about this topic, contact the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.