FCPA Under Fire: What Companies Need to Consider After Trump's Executive Order

On February 10, 2025, President Trump issued an Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (“Trump’s FCPA Order” or the “Order”), whose stated goal is “to restore American competitiveness and security by ordering revised, reasonable enforcement guidelines” for the FCPA. Fact Sheet: President Donald J. Trump Restores American Competitiveness and Security in FCPA Enforcement (“Fact Sheet”). Trump’s FCPA Order is part of his administration’s policy of “eliminating excessive barriers to American commerce abroad.”

Trump’s FCPA Order aims to fix the “overexpansive and unpredictable FCPA enforcement against American citizens and businesses—by our own Government—for routine business practices in other nations.” This, according to the Order, “not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.” 

For an initial period of 180 days, the Order requires the Attorney General to review guidelines and policies governing investigations and enforcement actions under the FCPA. During this review period, the Attorney General must also:

• Cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;
• Review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matters to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and
• Issue updated guidelines or policies, as appropriate, to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of federal law enforcement resources. 

The Attorney General may extend this review for an additional 180 days.

Further, any FCPA investigations and enforcement actions initiated or continued after the Attorney General issues her guidance must be specifically authorized by the Attorney General. The Attorney General will also at that point have authority to take additional actions, including remedial measures with respect to “inappropriate” past FCPA investigations and enforcement actions.

Unanswered Questions and Lingering Risks 

While Trump’s FCPA Order communicates a clear shift in the administration’s approach to FCPA enforcement, much will remain uncertain until the Attorney General issues her ultimate guidelines on the subject, including the following:

• Pause in enforcement is temporary and subject to exceptions. The Order’s pause in enforcement is temporary, indicating that FCPA enforcement, in some manner, will resume in the near future under new guidelines. In the interim, the Attorney General has the authority to grant exceptions for new investigations, although no criteria for these exceptions were articulated. A possible approach to enforcement priorities has already been communicated by the Attorney General in her recent memo, indicating a focus on investigations related to foreign bribery that facilitates the criminal operations of Transnational Criminal Organizations and Cartels. The requirement that new FCPA investigations will need to be authorized by the Attorney General is a significant shift from prior DOJ policy that will likely result in fewer new investigations in the short term and a possible focus of those investigations away from U.S. companies and individuals. The forthcoming guidance will also need to grapple with the U.S. government’s obligations to enforce the FCPA under international treaties such as the OECD Anti-Bribery Convention. Parties to that convention agreed to establish the bribery of foreign public officials as a criminal offense under their laws and to investigate, prosecute, and sanction this offense.
• Approach to self-reporting & whistleblower programs is unclear. While the Attorney General’s eventual guidelines may address this issue, the current Order is silent as to the detailed self-reporting framework painstakingly put together by the Biden and first Trump administrations. This framework—including its robust incentives scheme—remains intact, but the Order’s clear message to cease any new FCPA investigations or enforcement actions means that potential self-reporters (and whistleblowers) may reconsider their options.
• Future administrations could reinstate full FCPA enforcement. The FCPA remains the law; any meaningful legislative initiatives to truncate the FCPA have yet to be announced and remain unlikely to succeed given declared bipartisan support for anti-corruption measures. Current criminal statutes of limitations (five years for anti-bribery provision and six years for securities fraud provisions) will allow future administrations to prosecute today’s violations. What is more, the government can toll the limitations period by up to three years by making an official request for evidence to a foreign authority, and conspiracy charges can potentially be used to extend enforcement timelines even further. A future administration could swiftly reinstate full FCPA enforcement, leveraging existing investigative pipelines and resuming aggressive prosecution of both corporate and individual offenders.
• SEC enforcement authority remains intact (for now). The Order does not appear to impact the SEC’s enforcement of FCPA violations. However, the SEC (which has independent civil enforcement authority over issuers) could deprioritize foreign anti-bribery enforcement in favor of other cases; and the Trump administration has already signaled its intent to rein in SEC enforcement writ large. Companies will need to watch closely for developments at the SEC on this topic.
• Foreign and domestic anti-corruption laws and business obligations remain largely intact. Even if DOJ FCPA enforcement is deprioritized under the Order (and eventual Attorney General guidelines), companies still face significant legal, financial, and reputational risks from foreign corruption. Many jurisdictions, including the United Kingdom (UK Bribery Act), enforce stringent anti-corruption laws with broad extraterritorial reach. Most commercial contracts, particularly complex merger and investment agreements, contain compliance-with-laws provisions and FCPA/anti-corruption representations, warranties, and covenants—meaning that violations could expose companies to civil fraud claims, contractual breaches and defaults, and reputational harm. Even if FCPA enforcement wanes, federal and state regulators (including DOJ) retain alternative enforcement mechanisms, such as anti-money laundering statutes, where FCPA violations can serve as predicate offenses. External auditors may also continue scrutinizing financial records for indications of corruption, potentially triggering disclosure obligations and financial restatements. Shareholder lawsuits also remain a concern, as investors may pursue derivative, or securities fraud claims based on materially misleading financial statements, deficient internal controls, or misleading statements about inadequate compliance measures. Beyond strict legal exposure, a weakened anti-bribery stance could erode a company’s overall culture of compliance, increasing broader operational and governance risks such as insider dealing and embezzlement.

Conclusion 

Compliance programs still matter, and anti-corruption enforcement will continue in some form or another. Enforcement of anti-corruption laws throughout the world has increased significantly since the FCPA was first passed, and the current Order cannot unring that bell. Companies subject to the FCPA will remain subject to a variety of anti-corruption laws and related obligations and continue to be subject to potential civil litigation. Further, anti-corruption compliance benefits companies in myriad ways, including identifying embezzlement, conflicts of interest, and internal waste. It also sets a standard that pushes back against corrupt individuals “shaking down” businesses and demanding bribes.

Ultimately, the forthcoming Attorney General FCPA guidance will provide insight into at least some of these open questions. Until then, companies remain at risk from reading too far into the changing landscape. Crowell attorneys are watching these developments closely to help our clients navigate these compliance and investigation challenges.