The link between national security and corporate criminal enforcement was a key theme across three speeches by senior Department of Justice officials at the American Bar Association’s 39th National Institute on White Collar Crime on Thursday and Friday.

Deputy Attorney General Lisa Monaco, Acting Assistant Attorney General (Criminal Division) Nicole M. Argentieri, and Assistant Attorney General (National Security Division) Matthew G. Olsen discussed DOJ’s white collar enforcement activities and announced several updates to the Department’s corporate criminal enforcement policies, some of which were also reflected in recent updates to the Justice Manual.

The announcements included a range of enforcement tools, such as new rewards for whistleblowers, ongoing adjustments to DOJ’s voluntary self-disclosure programs, review of corporate compliance statements with stiffer penalties for recidivism, and strengthening tools for identifying and prosecuting corporate crimes. A significant number of these developments included a national security dimension, reflecting DOJ’s view that, as Monaco put it in 2023, “Today corporate crime intersects with [U.S.] national security – in everything from terrorist financing, sanctions evasion, and the circumvention of export controls, to cyber- and crypto-crime.”

Some key national security takeaways from the recent remarks follow.

Corporate enforcement remains a National Security Division priority. As Monaco’s 2023 remarks indicate, DOJ has increasingly emphasized the importance of cases at the intersection of corporate enforcement and national security. Following Russia’s 2022 full-scale invasion of Ukraine, she announced a “sea change” in which sanctions enforcement would become a heightened Department priority – the “new FCPA.” And late last year, Principal Associate Deputy Attorney General Marshall Miller announced DOJ was “surging resources to address the [national security] challenge – adding more than 25 new corporate crime prosecutors to our National Security Division and increasing by 40% the number of prosecutors in the Criminal Division’s Bank Integrity Unit.”

Olsen provided further updates from the National Security Division on Friday, saying that they had “more than doubled the number of prosecutors working on violations of sanctions, export control, and foreign agent laws” and “brought on two veteran prosecutors to serve as the division’s first ever chief and deputy chief counsel for corporate enforcement.”

He also discussed three recent national security-related corporate enforcement actions: a case against Syrian concrete company Lafarge for material support to terrorism resulting in a guilty plea and $778 million penalty (also covered extensively by authors on our pages); a $629 million criminal penalty against a British tobacco company’s subsidiary for violating sanctions against North Korea; and an Iranian sanctions case resulting in a guilty plea by cryptocurrency exchange Binance, involving a $4.3 billion penalty.

DOJ opens notice and comment period, takes other initial steps pursuant to Biden’s Executive Order limiting foreign acquisition of U.S. bulk data. On Feb. 28, President Joe Biden signed Executive Order 14117 on “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern.” The Executive Order, the White House said, “authorizes the Attorney General to prevent the large-scale transfer of Americans’ personal data to countries of concern and provides safeguards around other activities that can give those countries access to Americans’ sensitive data.”

Last week, Olsen announced three initial actions that DOJ is taking to implement the Executive Order: (1) a Mar. 5 Advance Notice of Proposed Rulemaking outlining the Department’s proposed approach, to be followed by a public notice and comment period and “multiple rounds” of stakeholder engagement; (2) development of an enforcement and compliance strategy, which Olsen said would have “real teeth … and be backed by the full suite of civil and criminal authorities under the International Emergency Economic Powers Act,” including “investigatory authorities and subpoena authority;” and (3) increased staffing and resources, including at the Foreign Investment Review Section’s Compliance and Enforcement Unit, where Olsen said the Department has also appointed a new Deputy Chief for National Security Data Risks.

Foreign Extortion Prevention Act (FEPA) takes effect. “We will use the recently enacted Foreign Extortion Prevention Act (FEPA) to hold corrupt foreign officials accountable,” Argentieri said, speaking about the law signed by Biden in December after being passed as part of the 2024 National Defense Authorization Act. The Act makes it a crime for a foreign official to demand or accept a bribe from a U.S. citizen, resident, corporation, or issuer, or from anyone while within the territory of the United States.

Anti-corruption advocates had long encouraged Congress to enact such a measure to criminalize “demand-side” cross-border corruption, just as the Foreign Corrupt Practices Act (FCPA) does for “supply-side” corruption, i.e. U.S. persons or entities offering or making a bribe to foreign officials.

Argentieri said that the Criminal Division would draw on experience prosecuting foreign corruption in its FCPA Unit and the Money Laundering and Asset Recovery Section’s Kleptocracy Initiative, and that “the same attorneys who investigate and prosecute FCPA violations [will] also handle cases brought under FEPA.” Updates to the Justice Manual issued on Thursday also clarified “that the department will handle FEPA cases the same way [it has] treated FCPA cases — with centralized supervision by the Fraud Section, working in partnership with U.S. Attorneys’ Offices across the country,” she said.

Monaco in her remarks also said that acts of both domestic and foreign corruption, including those prosecutable under FCPA and FEPA, were among DOJ’s highest priorities for whistleblower tips.

Enforcement plans will consider artificial intelligence and other disruptive technology risks. Building on remarks on artificial intelligence (AI) made at the University of Oxford last month, Monaco said she had directed the Criminal Division “to incorporate assessment of disruptive technology risks – including risks associated with AI – into its guidance on Evaluation of Corporate Compliance Programs.” She also said that the Department planned to use sentencing enhancements to impose additional penalties for crimes committed using AI. And she announced a new “Justice AI” convening series that will bring together government, civil society, academic, and business stakeholders to discuss the technology’s impact.

Olsen also mentioned AI, noting that the national security risks of potential bulk data misuse “will only increase with the explosive growth of artificial intelligence.”

A heightened enforcement approach recognizes impunity as a rule of law threat. These updates – both those directly related to national security and those applicable to general corporate crime – are in keeping with the Department’s heightened enforcement approach, which Monaco initially announced in an October 2021 speech and subsequently developed in a 2022 Department-wide memorandum and intervening policy updates and statements. Argentieri, in her speech last week, emphasized that “[c]ompanies only act through people,” and that the Criminal Division’s “number one goal is holding culpable individuals accountable – including corporate executives, no matter how prominent or influential.”

Even in cases that may not fall under an obvious “national security” rubric, the Department’s heightened enforcement approach and emphasis on individual accountability may nevertheless serve important national security purposes. Corporate criminal activity functions as a national security risk on multiple axes. Lax compliance can allow malignant actors to evade national security protections like sanctions and export controls, or exploit weak points to engage in activities like cyber attacks. But lax compliance can also contribute to a culture of impunity that weakens the rule of law and fuels a feedback loop in which malignant actors seeking to shelter their ill-gotten gains further hollow out the institutions that shore up democratic societies. We live in an age of kleptocracy-driven geopolitical conflict – as corrupt networks embed themselves in the United States to take advantage of its stability and institutions while also acting as global drivers of democratic decline. Meaningful enforcement accordingly requires addressing corporate crime as the multidimensional national security threat that it is.

IMAGE: A vehicle drives past the Department of Justice building in Washington, DC, on February 9, 2022. (Photo by STEFANI REYNOLDS/AFP via Getty Images)