Last month President Trump ordered Attorney General Bondi to “cease initiation of any new FCPA investigations or enforcement actions” while she determines whether the way the act is now enforced advances American interests. If she finds it is not, the Presidential Executive Order directs her to revise the current enforcement guidelines. In theory any revision will be driven by what an objective review finds; in fact Trump’s February 10 order has loaded the dice. It starts off proclaiming FCPA enforcement:
“has been systematically, and to an increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States”
It continues:
“Over expansive and unpredictable FCPA enforcement against American citizens and businesses … for routine business practices in other nations … wastes limited prosecutorial resources [and] actively harms American economic competitiveness.
These claims are patently false — as those who have watched the uptick in FCPA prosecutions or been involved in them know. They must now speak up: To prevent Trump and Bondi from derailing one of the most successful efforts to fight global corruption since the international community made it a priority.
The list of witnesses is long. It includes not only American executives, lawyers, FBI investigators and federal prosecutors but the counterparts in countries rich and poor who have worked with them to curb the scourge of bribery. They need to present the “true facts” to Attorney General Bondi to counter the “alternate facts” in the Trump order.
Already two former OECD General Counsels and three former chairs of its Working Group on Bribery have. In a February letter to Bondi they explain that the FCPA has advanced American interests by protecting “US companies from unfair practices by foreign companies” and they go on to provide additional evidence and reasons why FCPA enforcement policy requires little if any revision. Others need to go on record with stories of how and where enforcement measures helped American businesses and created good will for American interests generally.
Given Bondi’s unwavering fealty to Trump, the real facts are unlikely to stand in the way of her making drastic changes in FCPA enforcement, but changes will be subject to challenge in both a court of law and the court of public opinion. The more evidence on the record that that current enforcement policy advances American interests, the more likely any misguided revisions will be rejected.
Bondi has until August 9 to complete her review with the possibility of a 180-day extension. The sooner the true facts are on the record and the alternate ones revealed as half-truths existing in an alternate universe, the better. Submissions should be addressed to: The Honorable Pamela Bondi with the salutation Dear Attorney General Bondi: Her address:
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
GAB would be pleased to receive and share with readers copies of any submission.
