On June 9, 2025, Department of Justice (“DOJ”) issued “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA),” as contemplated by President Trump’s February 10, 2025 executive order, which, among other things, paused enforcement of the FCPA for 180 days. The new guidelines (the “Guidelines”) set forth four non-exhaustive factors that DOJ prosecutors will consider when deciding whether to pursue FCPA investigations and enforcement actions.

As expected, the substance and tone of the Guidelines reflects the Trump Administration’s “America First” agenda. However, a surprise is that they seek this result indirectly. Instead of focusing on relaxed enforcement of the FCPA to make U.S. companies more competitive, the Guidelines focus on enforcing the FCPA against foreign enterprises to make American companies more competitive and advance national security interests.

Three of the four factors address the activities of non-U.S. organizations and companies and heightened enforcement.  Only the fourth factor involves relaxing enforcement, doing so through the expansion of exceptions to the FCPA and affirmative defenses that relate to corporate conduct involving de minimis or low-dollar, generally accepted business courtesies.  The expansion contemplated is incremental, and historically the DOJ has rarely focused on such matters.

Many practitioners did not expect this indirect approach, but it is consistent with the administration’s approach in other areas, including, for example, imposing tariffs on foreign companies to indirectly enhance the competitiveness of U.S. businesses.

It is also noteworthy that Trump has not requested that Congress repeal or even amend the FCPA.  Without such action, the DOJ is constrained in what it can do directly to relieve U.S. companies from the FCPA’s restrictions. Based on the DOJ’s approach in the Guidelines, it is likely that Trump will not call upon Congress to repeal the FCPA in the near future.

The Four Factors

1. Total Elimination of Cartels and Transnational Criminal Organizations

This first factor is surprising because it is inapplicable to most foreign and U.S. companies. Combatting cartels and transnational criminal organizations has little to do with making U.S. companies more economically competitive; rather, it directs prosecutors to focus on using the FCPA as a sword to fight threats to national security and international order. Historically the FCPA has rarely been used in connection with legal actions against cartels and transnational criminal organizations. Its prominent inclusion in the Guidelines is another example of the administration applying laws in a novel manner to achieve a tangential policy objective, similar to the DOJ’s use of the Immigration and Alien Enemies Act of 1798 in connection with implementation of its deportation policy and its use of Section 232 of the Trade Expansion Act of 1962 to impose tariffs on the basis of national security concerns.

2. Safeguarding Fair Opportunities for U.S. Companies.

This second factor discusses the importance of economic growth and expansion of U.S business opportunities to advance U.S. economic prosperity and national security. However, it does not refer to any relaxation of FCPA enforcement against U.S. companies. This factor condemns the distortion of markets caused by companies that bribe foreign officials and notes the disadvantage imposed on law abiding companies, “including U.S. companies.” Although the language in the body of the Guidelines does not specifically identify foreign companies as the intended targets, footnote 4 notes that “the most blatant bribery schemes have historically been committed by foreign companies.”  Further, the DOJ makes explicit that it will consider whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.” (emphasis added). The implication is that the DOJ will be more interested in reviewing foreign companies that have secured business to the detriment of U.S. companies than in investigating U.S. companies that have won business.

Another important component of this second factor is that, notwithstanding the intention of these Guidelines to focus on the FCPA, it references the Foreign Extortion Prevention Act, 18 U.S.C. Section 1352 ,which criminalizes the “demand side” of foreign bribery, and this portion of the Guidelines directs prosecutors to focus on whether U.S. entities and individuals have been harmed by foreign officials demanding bribes. Mention of the Foreign Extortion Prevention Act implies that if the DOJ believes a U.S. company was coerced into making an improper payment, it may take this into account when deciding whether to prosecute and may focus on investigating and bringing cases against foreign officials.

3. Advancing U.S. National Interests.

Pursuant to this factor, the DOJ will focus on corruption in sectors such as defense, intelligence, and critical infrastructure. Although it is not beyond reason for a U.S. company to bribe foreign officials to secure a contract for the sale of weapons, such bribery would most likely not threaten U.S. national security interests to the same extent that a foreign company corruptly bribing those same officials would. Based on a review of this factor it is reasonable to conclude that the DOJ will seek out improper conduct by foreign persons competing against U.S. enterprises for business in sectors such as defense, critical minerals, deep water ports, and other key infrastructure to protect not only the business interests of U.S. companies, but also the United States’ national security.

Foreign companies that compete in industries related to national security should be highly sensitive to these Guidelines and the DOJ’s mandate. As an example, high-profile foreign-defense contractors such as BAE, Dassault, Elbit, and Embraer should pay close attention and reinforce their FCPA compliance training programs to insulate themselves from a potential increase in enforcement. Notwithstanding the likelihood of increased scrutiny on foreign competitors, companies such as Boeing, Lockheed Martin, Raytheon, and Textron should maintain their own FCPA compliance programs as they seek to supply weapons to foreign militaries.

4. Prioritizing Investigations of Serious Misconduct.

This fourth factor articulates what practitioners and pundits had expected to dominate the Guidelines – relaxed DOJ enforcement of the FCPA to help U.S. companies compete.  This factor contains the only language in the Guidelines that speaks directly to giving U.S. businesses the opportunity to change their behavior in doing business with foreign officials and the lower likelihood of prosecution.  It is the final factor, and the DOJ’s discussion is brief.

This factor is based on the statutory exceptions for facilitating and expediting payments in 15 U.S.C. Section 78dd-1(b) and the affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the laws of the foreign country in 15 U.S.C. § 78dd-1(c). The Guidelines note that FCPA investigations and enforcement actions shall not focus on “alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies.” This language expands the affirmative defense to include not only company actions permitted by the laws of a foreign country but also any routine business practice in that country and low-dollar, generally accepted courtesies in that country. In many countries the gap between the law is and generally accepted business practice is wide. The Guidelines make clear that, before deciding to investigate, the DOJ will consider whether foreign law enforcement agencies might take action for a violation of their countries’ written laws.

U.S. companies should anticipate that other countries will respond to these Guidelines by directing their law enforcement organizations to closely monitor the compliance of U.S. companies with their own anti-corruption laws.  It is therefore advisable that U.S. companies re-examine their compliance training and focus on anti-corruption laws where they compete for business, such as The United Kingdom’s Bribery Act, South Korea’s Act on Prevention of Corruption, India’s Prevention of Corruption Act, and  the criminal codes in other countries where they compete for government contracts.

An unintended consequence of the February executive order and these Guidelines may be that when foreign officials consider them together with the administration’s tariff policies, U.S. companies may find it harder and riskier compete for business.

This post comes to us from Alexander L.W. Snyder, the founder and managing director of the Crimson Fulcrum Strategic Institute.