The second Trump administration has launched an unprecedented assault that aims to maim, if not kill outright, enforcement against U.S. companies of the Foreign Corrupt Practices Act (FCPA). To that end, the Department of Justice recently issued new restrictive enforcement guidelines, following an earlier executive order that temporarily suspended enforcement of the FCPA except in limited circumstances – a pause that itself harmed U.S. and global businesses, as others have demonstrated.
But as much as the Trump administration might like to bury the FCPA, doing so is not easy. When the statute was enacted in 1977, the United States stood virtually alone in criminalizing foreign bribery. Today, nearly five decades later, outlawing foreign corrupt payments has become a universal obligation set out in binding multilateral treaties—and, in some U.S. jurisdictions, also a matter of state law. What began as a lonely American experiment has evolved into a web of transnational legal obligations that cannot be easily unbound. Earlier administrations’ efforts as “transnational norm entrepreneurs” to create a “race to the top” in building global anti-corruption norms triggered what one commentator has called “transnational legal process.” Through this intertwined domestic and international legal process, new norms are created that prove to be “sticky” and resistant to reversal once uploaded onto international law platforms.
The enduring transnational nature of the fight against foreign corruption has real-world consequences for U.S. companies that might now consider bribing foreign officials: if they do so, they may subject themselves to investigation and prosecution by foreign authorities, by state prosecutors, by a future Department of Justice—or even by this administration, should a company later fall out of favor.
The Trump Administration Has Sought to Put the FCPA to Rest – At Least for U.S. Companies.
President Trump has long expressed his disdain for the FCPA, which for nearly half a century has criminalized bribery of foreign officials. In a 2012 CNBC interview, Mr. Trump said that “every other country goes into these places, and they do what they have to do. It’s a horrible law and it should be changed . . . It’s ridiculous.” In 2017, during his first term, President Trump reportedly made a similar statement, asserting: “[i]t’s just so unfair that American companies aren’t allowed to pay bribes to get business overseas. We’re going to change that.” In 2020, Larry Kudlow, then-Director of the National Economic Council, confirmed that the Trump administration was “looking at” making changes to the FCPA.
Ultimately, the first Trump administration did not ask Congress to amend the FCPA—and neither has the second. In an increasingly familiar pattern, instead of seeking amendment or repeal of the FCPA, the administration has sought, as it has done with respect to TikTok and other recent controversies, to implement its policies by declining to enforce standing law. In the case of the FCPA, the administration has taken three executive actions to advance President Trump’s stated goal of permitting foreign corrupt payments by U.S. companies.
First, immediately upon taking office, Attorney General Pam Bondi issued a memorandum instructing the DOJ’s FCPA Unit to “shift focus away” from its traditional anti-corruption work —ostensibly so that the Unit could instead concentrate on investigations that involve bribery by cartels and transnational criminal organizations. But this explanation is plainly pretextual, as there are numerous other federal criminal laws that effectively address narcotics-related corruption, whereas “the FCPA’s design – considering its jurisdictional reach and entity-focus – may limit its effectiveness as a tool against organized crime.” In addition to this “shift” in focus, “retirements and reassignments of long-standing career enforcement personnel [have] substantially reduc[ed] the staff and prosecutors assigned to investigate and prosecute FCPA cases.” In other words, as part of a wide-ranging effort to hollow out DOJ’s anti-corruption enforcement capacity, the administration has systematically reduced both prosecutorial ranks and institutional expertise.
Second, shortly after the Attorney General’s memorandum, President Trump issued Executive Order 14209, which directed the Attorney General to: (a) “cease” new FCPA investigations and enforcement actions for at least 180 days (except where the Attorney General made an individual exception); (b) “review” all existing FCPA investigations and prosecutions and take “appropriate action with respect to such matters”; and (c) “issue updated guidelines or policies” with respect to the FCPA to “prioritize American interests.” This presidential directive effectively paused FCPA enforcement across the board, halting new cases while placing existing investigations under threat of termination.
Third, pursuant to that order, DOJ dismissed nearly half of its pending FCPA investigations. Then, on June 9, 2025 DOJ issued new FCPA Guidelines designed to ensure that the FCPA would not be “enforced in a manner that ‘harms American economic competitiveness and, therefore, national security.’” As commentators at major U.S. law firms have noted, the new guidelines “emphasize a prosecutorial focus on protecting US interests,” and “suggest that the DOJ may show less interest in prosecuting bribery schemes involving US companies.” Instead, the new guidelines demonstrate the DOJ’s “increased focus on non-U.S. companies whose alleged corrupt conduct harms American competitiveness in international markets” — even though of the nine FCPA corporate resolutions reached in 2024, more than half already involved foreign-based companies.
The Trump administration has thus effectively rewritten a law that has been on the books for nearly fifty years. It has sought to unilaterally convert the Foreign Corrupt Practices Act into a Foreigners Corrupt Practices Act, without explaining why that narrowing is consistent with Congress’ clear legislative intent.
But while the Trump Administration has taken steps to hobble FCPA investigations of U.S. companies by the DOJ — and to entirely prevent any such prosecutions the administration disfavors — the President cannot lawfully authorize such corrupt payments. Congress, not the President, has the constitutional authority “[t]o make all Laws which shall be necessary and proper,” and to define the national interest such laws should serve. It is then the President’s constitutional duty to “take Care that the Laws be faithfully executed.” Thus, the FCPA remains the law of the land, notwithstanding any executive orders to the contrary. Moreover, as discussed below, the principles enshrined in the FCPA are no longer simply the law of the United States — through persistent American norm-promotion, they have become universal legal principles that can be enforced wherever jurisdiction exists.
Foreign Corrupt Payments Are Now Universally Forbidden–and May Trigger Foreign Prosecutions
President Trump’s position that the FCPA is “unfair” to U.S. businesses rests on several fallacies.
First, it is incorrect to claim that U.S. businesses do not benefit from the FCPA. In fact, the opposite is true: anticorruption measures are essential to the prosperity of both U.S. and global businesses. The suspension of such measures does grave damage to international commerce. As the winners of last year’s Nobel Prize in Economics illustrated “[s]ocieties with a poor rule of law and institutions that exploit the population do not generate growth or change for the better.” In addition, companies themselves, like Ulysses tied to the mast to avoid siren calls, can benefit in being able to tell would-be bribe solicitors that U.S. law forbids payment. In this regard, it is worth noting an exchange that reportedly took place in the first Trump administration: then-Secretary of State Tillerson is said to have pushed back on President Trump’s complaints about the FCPA by stating that when he was CEO of Exxon, he had refused to pay a $5 million bribe that had been demanded by foreign officials, and that Exxon nonetheless got the contract. As Tillerson explained, “America didn’t need to pay bribes—[the U.S.] could bring the world up to our own standards.”
Second, President Trump’s view that the FCPA is “unfair” to U.S. businesses crumbles under even casual scrutiny. The Act extends equally to foreign companies listed on U.S. stock exchanges and to foreign firms and persons that use U.S. territory to facilitate corrupt payments. Indeed, of the top ten fines imposed under the FCPA, foreign companies have paid nine. The new DOJ Guidelines acknowledge this reality in a footnote, arguing that DOJ’s FCPA actions show that “[t]he most blatant bribery schemes have historically been committed by foreign companies.” But even if foreign actors commit the vast majority of a particular federal crime, federal prosecutors would never argue for a “race to the bottom,” freeing Americans to commit such crimes as well. Rather than drawing the obvious conclusion—that vigorous enforcement of the FCPA has been critical in deterring U.S. businesses from corruption—the DOJ reaches the perverse opposite conclusion: that U.S. companies should now somehow be made exempt from the same scrutiny applied to foreign companies. This twisted logic treats past compliance as grounds for future immunity.
Third, and perhaps most important, it is wrong to argue that corrupt payments are a well-accepted norm in international business, and that thus the FCPA creates an “uneven playing field” for U.S. businesses. While that may have been the case when the FCPA was first enacted in 1977, the United States is no longer alone in criminalizing foreign corrupt payment.
In fact, it has not been alone for more than two decades, following the 1997 entry into force of the OECD Anti-Bribery Convention. Largely because of sustained engagement by the United States and other public and nongovernmental actors, criminalization of foreign corrupt payments is now an international legal requirement. Most significantly, the U.N. Convention Against Corruption has 191 parties, including the United States. The Convention requires all member states to criminalize “offering or giving to a foreign public official . . . directly or indirectly, of an undue advantage . . . in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business . . . .” Member states have broadly enacted domestic laws doing just that.
The international criminalization of bribery, and the “stickiness” of that norm, present risks for U.S. businesses considering bribe payments. While some might consider the Trump administration’s position a license to make foreign corrupt payments, the administration’s inaction alone cannot insulate U.S. businesses from foreign investigations and prosecutions. The risk of prosecution is not just hypothetical. From the 1997 entry into force of the OECD Anti-Bribery Convention until 2018, the 44 countries that were members of the OECD Working Group on Bribery secured more than 600 convictions of individuals and more than 200 convictions of entities for making foreign corrupt payments. In the same twenty-year period, there were more than 500 ongoing investigations across 28 Member States.
Moreover, while the United States may have abandoned its leadership position on fighting corruption, other countries are taking steps to fill the void. Prosecution authorities in the U.K., France, and Switzerland recently announced a new anti-corruption alliance and task force. As Nick Ephgrave, Director of the UK’s Serious Fraud Office, explained: “[t]he commitment we have made today reaffirms our individual and collective commitment to tackling the pernicious threat of international bribery and corruption, wherever it occurs.”
Finally, this effort to “weaponize” the FCPA is unlikely to go unnoticed or unanswered by foreign authorities. The Trump Administration’s new FCPA Guidance can and likely will be read as an effort to give U.S. companies an unfair and illegal competitive advantage, particularly with regard to strategic industries or assets, by directing the DOJ to focus its investigations and prosecutions on foreign companies rather than U.S. businesses. Ironically, this asymmetric interpretation of the Guidelines may make U.S. companies and individuals greater targets both for demands for bribes by foreign officials and for investigations by foreign prosecutors.
Foreign Corrupt Payments May Expose U.S. Companies to Prosecution by State Authorities
In “transnational legal process” parlance, the norm against foreign corrupt payments has not only been uploaded to international law, but also downloaded (i.e. internalized) into the laws of leading U.S. states. U.S. companies contemplating foreign corrupt payments thus risk not only foreign investigations and prosecutions, they must also be concerned about prosecutions by states or other non-federal units of the United States. For example, following President Trump’s Executive Order, California Attorney General Rob Bonta issued an advisory to:
“remind businesses operating in California that it is illegal to make payments to foreign-government officials to obtain or retain business— regardless of the Trump Administration’s order temporarily suspending federal enforcement of the Foreign Corrupt Practices Act (FCPA). Violations of the FCPA remain actionable under California’s Unfair Competition Law (UCL), and businesses are expected to follow the law.”
The New York Attorney General’s Office, the Manhattan District Attorney’s Office, and the New York Department of Financial Services are likewise all “well-positioned to fill gaps left by the DOJ and none has shied from taking action even against large, multinational corporations implicated in complex, far-reaching crimes.” Thus, as a number of commentators have noted, we may expect the states to fill a federal vacuum. State Attorneys General may take action in response to the lack of federal enforcement of the FCPA or other federal white collar crime statutes. Oregon Attorney General Rayburn already has done so in pursuing state charges against Coinbase following the SEC’s dismissal of its own case against that company; Attorney General Rayburn said that “states must fill the enforcement vacuum being left by federal regulators who are giving up under the new administration and abandoning these important cases.”
Foreign Corrupt Payments May Expose U.S. Companies to Future Prosecution by Federal Authorities That Return to FCPA Enforcement:
Under Trump’s nonenforcement actions, companies are being given a reprieve, but not immunity. Thus, companies should also bear in mind the possibility of future federal prosecutions. Notwithstanding the disdain of the current Trump administration, enforcement of the FCPA has been a bedrock principle of the Department of Justice across all prior administrations, including the first Trump administration. The statute of limitations for FCPA offenses is five years, which can be extended by three years if mutual legal assistance is required from another country to obtain foreign evidence. This means that corrupt acts taken now may become the subject of investigation by a future administration, before the statute of limitations has run out.
There is indeed good reason to believe that future administrations will return to faithful enforcement of the FCPA, since—until now—there has been bipartisan consensus that the FCPA is critical not only to U.S. business but to U.S. national security. The Biden administration deemed the fight against corruption to be a “core national security interest.” Likewise, the National Security Strategy of the first Trump administration stated that “[t]errorists and criminals thrive where governments are weak, corruption is rampant, and faith in government institutions is low” and accordingly established a priority to counter foreign corruption by “[u]sing our economic and diplomatic tools . . . to target corrupt foreign officials and work with countries to improve their ability to fight corruption so U.S. companies can compete fairly in transparent business climates.”
Similarly, the U.S. Congress, across party lines, has strongly supported the FCPA’s anticorruption provisions. In December 2023, Congress passed the Foreign Extortion Prevention Act (FEPA), making it unlawful for a foreign official to corruptly demand such payments. FEPA, a law hailed by leading Republican legislators, strengthened the FCPA’s existing statutory framework by criminalizing the “demand side” of foreign bribery. Representative Joe Wilson (R-SC) stated in December 2023 that “[t]he enactment of the Foreign Extortion Prevention Act is a landmark victory in the fight against corruption and protects American businesses from mafia-like extortion by corrupt foreign officials.” Similarly, Senator Tillis (R-NC) said that “I’m proud that the Foreign Extortion Prevention Act was included in the NDAA that President Biden recently signed into law. Our commonsense legislation will help promote free enterprise and protect American businesses from corrupt foreign officials who try to extort them.”
Thus, nonenforcement is not amendment. Neither party in Congress has expressed an interest in backing FCPA repeal or formal amendment. The second Trump administration may seek to stop enforcement of the FCPA against U.S. businesses. But, at best, this is likely to be a pause in what has been almost fifty years of vigorous enforcement of that law, across every administration since 1977.
Foreign Corrupt Payments Pose Selective Prosecution Risks Under the Current DOJ Guidelines
Finally, U.S. companies that engage in foreign corrupt payments may face prosecution by the Trump administration itself. The new DOJ FCPA Guidelines suggest that at least some investigations and prosecutions will continue pursuant to the new priorities set out therein. In this regard, it is significant that the Guidelines are vague in key respects. In particular, the Guidelines direct that prosecutors “shall not focus on alleged misconduct involving routine business practices,” but rather should focus on “substantial bribe payments” — without defining what DOJ considers “routine” or “substantial” in this context. Plainly, this leaves room for expansive prosecutorial discretion and glaring double standards.
There is, moreover, the danger of selective investigation and prosecution of disfavored targets—even of those who might think they could gain the protection of the Guidelines by arguing that the corrupt payments were made to advance American competitiveness and U.S. national security. As is common in DOJ guidelines, the FCPA guidance states that it “is not intended to, and does not . . . create, any [enforceable] right or benefit.” That standard warning takes on new meaning, moreover, when it is read in light of President Trump’s first term push for prosecution of those he considered his enemies, his repeated threats of investigations and prosecutions in the lead-up to his second term, and his recent issuance of executive orders calling for the investigation of Miles Taylor and Chris Krebs, former DHS officials who served in President Trump’s first term.
In this regard, it is instructive to look to the experience of other countries, where government leaders have permitted — or even encouraged — corruption, only to then pivot to “anti-corruption campaigns” designed to selectively punish those who have shown disloyalty or have otherwise displeased the leadership. Those U.S. companies who rely on President Trump’s nonenforcement today may find themselves targets of his prosecutorial wrath tomorrow. This approach is aptly summed up in the aphorism attributed to former Peruvian President Oscar Benavides:
For my friends everything – for my enemies the law.
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In sum, the domestic decline of FCPA enforcement is mirrored by a robust international after-life. The Trump Administration may intend to subvert the FCPA as it applies to American companies or citizens by signaling that the Administration believes bribery to be an acceptable part of doing international business. However, no one should conclude that the administration can by executive order make lawful conduct that is prohibited under congressional legislation, as well as under multiple international treaties that the United States promoted and to which it remains a party. Nor should anyone rest easy believing that they are now free to engage in such corruption with impunity. The global anti-corruption regime that the United States pioneered over many decades is bigger than any one country or regime. However much the Trump Administration may favor the demise of the FCPA, its principles are “sticky” and thus will live on, both internationally and domestically.