Deputy Attorney General Todd Blanche Issues Guidelines Governing Resumption of Foreign Corrupt Practices Act Enforcement

Yesterday, Deputy Attorney General Todd Blanche delivered long anticipated guidelines with respect to how the Trump administration will conduct Foreign Corrupt Practices Act (FCPA) enforcement. As discussed below, broadly speaking, this guidance shows that FCPA enforcement will resume, but the focus of enforcement will shift to be in line with broader administration directives, including “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.”

This guidance follows President Donald Trump’s February 10, 2025 executive order temporarily pausing DOJ’s enforcement of the FCPA for 180 days. The executive order directed Attorney General Pam Bondi to review guidelines and policies governing FCPA investigations and enforcement actions and, specifically, to halt initiation of any new FCPA investigations or enforcement actions so that DOJ could conduct a comprehensive review of all existing actions to ensure they do not stretch beyond “proper bounds” of FCPA enforcement and are consistent with “Presidential foreign policy prerogatives.”

On February 5, 2025, in anticipation of the executive order, Attorney General Bondi also issued a memorandum directing DOJ to “prioritize” investigations of foreign bribery that “facilitate[s] the criminal operations of Cartels and TCOs [transnational criminal organizations].” This memorandum also lifted a requirement that the investigation and prosecution of FCPA cases be authorized by the Criminal Division of DOJ and tried by the Fraud Section of the Criminal Division, so long as they involve cartels and transnational criminal organizations.

Deputy Attorney General Blanche’s June 9, 2025 memorandum appears to be the “updated guidelines or policies” President Trump called for in his February 10 executive order, and is consistent with Attorney General Bondi’s directives. The four-page memorandum lays out a set of “non-exhaustive factors” prosecutors should evaluate in deciding whether to pursue FCPA investigations and enforcement actions.

These factors include whether the alleged misconduct is associated with the criminal operations of a Cartel or TCO, or deprived specific and identifiable U.S. entities of fair access to compete. “Companies that bribe foreign officials to obtain business can put their law-abiding competitors, including U.S. companies, at a serious economic disadvantage,” Blanche wrote. Blanche further explained that, “[s]imilarly, in conducting investigations and prosecutions under the Foreign Extortion Prevention Act, 18 U.S.C. § 1352, which criminalizes the "demand side" of foreign bribery, prosecutors should consider whether specific and identifiable U.S. entities or individuals have been harmed by foreign officials' demands for bribes.”

Another factor is a “focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.” As Blanche explained, “[w]hen this corruption occurs in sectors like defense, intelligence, or critical infrastructure, American national security interests may be harmed. FCPA enforcement will therefore focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.”

Finally, Blanche signaled a focus on the most serious kinds of corruption, rather than low-level misconduct, noting that DOJ would target “sophisticated efforts to conceal” or obstruct justice, and “substantial” and not “de minimus” bribe payments or “generally accepted business courtesies.” Importantly, the memorandum also highlights an exception in the FCPA for facilitating and expediting payments, noting that the FCPA “provides affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.”

To prioritize caseloads, the memorandum directs prosecutors to consider the likelihood that an appropriate foreign law enforcement authority is willing to investigate and prosecute the alleged misconduct. All new investigations will also require approval from top DOJ officials, including the head of the Criminal Division. Finally, the memorandum confirms that DOJ has applied the guidelines to any pending FCPA matters it has already reviewed since President Trump’s executive order, and “all current and future investigations and enforcement actions shall be governed by these guidelines.”

Longer Term Impact: This memorandum makes clear that DOJ will pursue FCPA enforcement, but that enforcement will be scaled down and focused on reducing burdens on U.S. companies. “The through line in these guidelines is that they require the vindication of U.S. interests,” Matthew Galeotti, head of the Justice Department's criminal division, said at an anti-corruption conference earlier today. Galeotti also stated that “the Criminal Division will enforce the FCPA — firmly but fairly — by bringing enforcement actions against conduct that directly undermines U.S. national interests without losing sight of the burdens on American companies that operate globally.”

Historically, the SEC has also worked closely with DOJ to enforce FCPA violations by public companies and their officers. Shortly after the Trump administration’s February 10 executive order, the SEC dismantled its FCPA Enforcement Special Unit and the two leaders of that unit resigned. Although the SEC may put FCPA enforcement back on its plate, the factors identified in the Deputy Attorney General Blanche’s memorandum would likely significantly limit the scope of any revived SEC enforcement efforts.

Nonetheless, public companies should be mindful that these changes are to DOJ policies, and not the law. Policies obviously can change at any time, especially when there is a change in an administration. It is worth noting that offensive conduct that occurs during this administration may not fall within the DOJ policies announced today, however, the statute of limitations applicable to such conduct may extend well beyond this administration and the applicability of these policies.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Mark A. Racanelli, an O’Melveny partner licensed to practice law in New York; Jim Bowman, an O’Melveny partner licensed to practice law in California; Greta L. Nightingale, an O’Melveny partner licensed to practice law in the District of Columbia; David N. Kelley, an O’Melveny partner licensed to practice law in Connecticut and New York; Steven J. Olson, an O’Melveny partner licensed to practice law in California; Sharon M. Bunzel, an O’Melveny partner licensed to practice law in California; Jorge deNeve, an O’Melveny partner licensed to practice law in California; Michele W. Layne, an O’Melveny of counsel licensed to practice law in California; Rebecca Mermelstein, an O’Melveny of counsel licensed to practice law in New Jersey and New York; and Benjamin D. Singer, an O’Melveny partner licensed to practice law in the District of Columbia and New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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