As we continue through the maze of Executive Orders and new Guidance, which is expected in 180 days, the questions surrounding FCPA enforcement are swirling.  In some respects, we have had a preview.  It is hard to know what will happen beyond some basic points.

Let’s start with last week’s memo issued by Attorney General Bondi, which was entitled — Total Elimination of Cartels and Transnational Criminal Organizations.

As explained in the memorandum, the Justice Department is re-prioritizing the allocation of resources, requiring “a fundamental change in mindset and approach” to pursue total elimination of Cartels and Transnational Criminal Organizations (“TCOs”). Federal prosecutors must now work “urgently” to eliminate these threats to U.S. sovereignty.

Attorney General Bondi directed prosecutors to engage in aggressive charging decisions to include capital crimes, terrorism charges, racketeering charges, Continuing Criminal Enterprise Charges, as well as violations of the Foreign Narcotics Kingpin Designation Act under 21 U.S.C. § 1906, violations of the International Emergency Economic Powers Act under 50 U.S.C. § 1705 (IEEPA), and machinegun charges under 18 U.S.C. §§ 924(c)(l)(B)(ii) and 924(0).  In the mix now, will be aggressive use of criminal sanctions.

Revising Priorities

In a separate section, entitled Removing Bureaucratic Impediments to Aggressive Prosecutions,” DOJ expects US Attorneys’ Offices across the country to “lead the charge.”  To maximize efficiency, DOJ eliminated a number of internal review and approval requirements.  Federal prosecutors in the field will appreciate removal of these bureaucratic requirements, normally applied in Capital, Racketeering, Terrorism, and International Emergency Economic Powers Act cases.  With respect to IEEPA, a recent Executive Order designated Cartel and TCO Members as Foreign Terrorist Organizations and Specially Designated Global Terrorists., signaling DOJ’s intent to focus federal prosecutorial resources on dismantling Tren de Aragua (TdA), La Mara Salvatrucha (MS-13), the Sinaloa Cartel, and the Jalisco New Generation Cartel.

A New FCPA Priority

In a significant direction, however, and one with real implications for FCPA enforcement, the AG Bondi memo instructs the FCPA Unit to “prioritize investigations related to foreign bribery that facilitate[]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.”

Adding to this new direction, the Bondi memo eliminates requirements that field U.S. Attorneys’ Offices no longer have to seek authorization and the participation of DOJ attorneys to conduct FCPA investigations. This is a significant reform and from a line prosecutor’s perspective will increase the ability of local AUSAs to prosecute serious cases.

Additionally, the Money Laundering and Asset Forfeiture Section has been ordered to prioritize investigations, prosecutions, and asset forfeiture actions that target activities of Cartels and TCOs.

In a related move, AG Bondi disbanded the Task Force KleptoCapture, the Department’s Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative.  Prosecutors assigned to these units will return to their full-time posts and be reassigned to focus on total elimination of Cartels and TCOs.

FCPA Guidance and Implications

The Bondi memo gives us a glimpse of what the new FCPA Guidance may contain.  By tying FCPA enforcement to Cartels and TCOs, this may raise a whole new set of risks and need for internal controls.  As we always say, the devil is in the details. 

What is clear is that the “old way” of FCPA enforcement may be long gone and a new era of national security related prosecutions will be beginning. 

Keep in mind for global companies, the “old” set of standards will continue to apply — the Clean Companies Act (Brazil), the UK Bribery Act, Sapin II (France) and, of course, the OECD Anti-Bribery Convention.

Make no mistake, however, the landscape has shifted and we will not know precisely how until Guidance is issued, implications are measured, and the ripples of change have reached the opposite shore.