Given the flurry of executive orders signed in the second Trump administration, 142 in the first 100 days, it is understandable that businesses are having trouble keeping up.
When it comes to E.O. 14209, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, issued on February 10, 2025, special care is needed to understand what it means – and may not mean. The order promises to radically transform the US government’s enforcement of the nearly 50-year old Foreign Corrupt Practices Act (“FCPA”).
E.O. 14209 cites “overexpansive and unpredictable FCPA enforcement” against American citizens and businesses for engaging in what the administration considers to be “routine business practices in other nations.” It asserts that, as enforced by prior administrations, the FCPA “actively harms American economic competitiveness and, therefore, national security,” and that removing enforcement pressure will give “U.S. businesses… the tools to succeed globally.” The order mandates a pause of 180 days, subject to extension, to allow the US Attorney General to review the policies that govern investigations and enforcement actions under the law.
To provide context to what President Trump envisions as the new approach to applying the FCPA, the order was accompanied by a fact sheet that, among other things, contends that American companies are “harmed by FCPA overenforcement because they are prohibited from engaging in practices common among international competitors, creating an uneven playing field.”
It is hard to mistake the message that the US government has softened its stance on practices covered by the FCPA. However, for reasons we outline below, it would equally be a mistake for companies to relax their enforcement of anti-bribery and anti-corruption compliance policies. Continued vigilance remains the smartest strategy.
Key Implications of the Executive Order
- The FCPA is still the law of the land
While the order stipulates a 180-day moratorium on opening investigations or enforcement actions, with exceptions allowed at the discretion of the attorney general, it is not a blanket ban on application of the FCPA. In fact, since publication of the order, several decisions in relation to existing investigations have been made that indicate foreign companies and executives can still be prosecuted under the FCPA. For example, in an April 9 filing, the Department of Justice announced that it would move forward with an FCPA bribery case against a Philippines election official and two executives of Smartmatic, a UK voting machine company.
The FCPA has not been rescinded and it is unlikely to be changed, given that the sole authority for repeal or amendment lies with the Congress, which has no apparent interest in modifying the law it passed 48 years ago.
While too early to know the duration and impact of the pause, it is clear that (i) bribery and corruption is still illegal in the US and abroad and (ii) the statute of limitations for any current violations will extend beyond President Trump’s four year term.
- Other Trump enforcement priorities may drive FCPA cases
Other law enforcement priorities of the Trump administration—particularly its focus on drug cartels and other Transnational Criminal Organizations (“TCOs”)—suggest an expansion of enforcement cases, including those brought pursuant to the FCPA, driven by corporate interaction with these organizations.
The designation of eight cartels operating in Mexico, Central America, and Venezuela as Foreign Terrorist Organizations and Specially Designated Global Terrorists introduces significant legal exposure for businesses. Under statutes such as the Anti-Terrorism Act (“ATA”), any engagement with terrorist organizations is prohibited and may result in both civil and criminal liability.
As to the FCPA, Attorney General Bondi’s memorandum states: “The Criminal Division’s Foreign Corrupt Practices Act Unit shall 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. Examples of such cases include bribery of foreign officials to facilitate human smuggling and the trafficking of narcotics and firearms.”
While the legal framework may appear different for the FCPA, the overall risk exposure for companies operating in regions where TCOs are active remains unchanged. Payments to corrupt officials who are considered to be affiliated with or acting on behalf of a TCO could lead to violations under both the FCPA and the ATA.
This evolving legal and compliance environment presents significant challenges for global companies operating in Latin America and anywhere else where cartel and TCO activities may manifest, underscoring the need to reassess and strengthen their risk management and compliance strategies. These FCPA, ATA, and anti-money laundering risks are not limited to Latin America, but have global implications, as illustrated by the 2023 prosecution in which Lafarge SA pled guilty to conspiring to provide material support to the al-Nusrah Front and the Islamic State of Iraq and al-Sham, or ISIS—both Foreign Terrorist Organizations.
Further clarification of the Trump enforcement priorities and the direction of global white-collar crime enforcement was provided by a Department of Justice memo, published on May 12. The memo states that whilst prosecutors “…must avoid overreach” the Criminal Division will prioritise investigating corporate crime that impacts American citizens and companies including “Bribery and associated money laundering that impact U.S. national interests, undermine U.S. national security, harm the competitiveness of U.S. businesses, and enrich foreign corrupt officials”.
We are witnessing a reframing of global white-collar crime enforcement, and companies still need to follow the FCPA’s rules to the letter.
- Enforcement outside of the US is ramping up
Notably, foreign enforcement authorities have shown no sign of instituting an analogous pause. Signs that UK and European Union (“EU”) enforcement authorities have been stepping up their actions provide another reason for businesses not to relax their guard.
While the UK’s Serious Fraud Office (“SFO”) has always indicated that it will act if cases, including those involving overseas corruption, meet its criteria, it confirmed its commitment in April 2025, when its director said the agency is “very keen to prosecute someone” for the new UK ‘Failure to Prevent Fraud’ offense, which comes into force in September 2025.
As recently as March 2025, the SFO underscored a “shared commitment to tackling international bribery and corruption,” when it announced the formation of a joint anti-corruption enforcement taskforce with France’s Parquet National Financier (“PNF”) and the Office of the Attorney General of Switzerland and left the door open for other agencies to join.
Notwithstanding SFO Director Nick Ephgrave’s statement that the taskforce is not a reaction to the US position, the move is timely in demonstrating anti-corruption unity among agencies in international finance gateways in Europe. Given that the US position has not been supported globally, and in light of intensifying global trade tensions, other enforcement regimes may well be looking for US entities to slip up – further increasing the potential costs and risks for businesses.
Some recent cases suggest increased EU intensity in taking on corruption. Significant investigations and prosecutions led by European enforcement agencies have been recently made public. These include a joint SFO and PNF bribery and corruption probe into the French defense firm Thales, this was followed in May by the news that several EU authorities, including the Belgian public prosecutor’s office, were conducting parallel investigations into the awarding of military equipment contracts for members of the North Atlantic Treaty Organisation (NATO).
This is further proof that international companies should remain vigilant while managing the risk of fraud, bribery, corruption, money laundering, and other financial misconduct.
How Should Businesses Respond?
Despite this dramatic shift by the Department of Justice, businesses should concentrate on the big picture, maintaining bribery and corruption risk as a focal point of their compliance programs.
While some FCPA investigations have been halted, others have continued. Given the FCPA’s five year statute of limitations, most infractions committed during this four year presidential term will be subject to prosecution under the next administration. Every other enforcement authority with extra-jurisdictional reach remains active, some eager to bring more cases. And apart from legal and regulatory considerations, most organizations continue to believe that running an ethical organization is simply smart business, and that the benefits of preventing corruption outweigh the costs.
As a practical measure, organizations should issue clear statements to staff, third-party suppliers, and customers reaffirming their commitment to anti-bribery and anti-corruption compliance, as well as to adhering to local anti-corruption laws. This will dispel uncertainty, should any exist, regarding the expectation of ethical business conduct.
Communication to all links in the supply chain will forestall actions that flow from misunderstanding or misinterpretation. It is worth re-iterating to all staff – especially those in foreign subsidiaries – that, as obvious as it may seem, one agency’s pause on enforcement is not a green light for bribery.
Additionally, organizations should reassess their potential exposure to risks stemming from the increased focus on TCOs. This includes risks arising through third-party agents, suppliers, and other intermediaries. Risk assessments should consider the organization’s exposure in high-risk jurisdictions such as Latin America, while anticipating similar exposure in other regions.
To implement adequate mitigating controls, organizations should pay close attention to how external risks, such as transportation routes controlled by cartels, may impact operations. Enhanced due diligence across the supply chain—especially in high-risk geographies—is essential to mitigate regulatory risk. Particular attention should be paid to the use of intermediaries and to actions carried out on behalf of the organization.
As the global regulatory landscape evolves, organizations would be well served to strengthen their compliance frameworks through continuous monitoring and cross-functional coordination among legal, compliance, and procurement teams. Where potential misconduct is identified, organizations should thoroughly investigate, then implement measures to mitigate it. Finally, organizations will find that an integrated approach to risk management will be key to navigating this increasingly complex environment.
