DOJ Resumes FCPA Enforcement with a New “America First” Focus on Energy and Other Vital National Interests — Creating Opportunities for U.S. Companies to Seize

In a memorandum detailing DOJ’s new guidelines for FCPA cases (the “Blanche Memo”), the Department ended a four-month pause ordered earlier this year by President Donald Trump. Most relevant for U.S. companies, the Blanche Memo directs prosecutors to consider whether foreign bribery has economically harmed specific and identifiable U.S. entities or deprived them of a fair opportunity to compete in the global marketplace. DOJ also emphasized that it would focus on corruption in industries that are vital to U.S. national interests, such as within the energy and defense sectors. The new focus suggests U.S. enforcement will be strategically centered on national security and economic competitiveness, signaling that the Department will seek to clean up high-risk markets around the world by prosecuting foreign companies and foreign officials that make those markets risky for U.S. businesses in the first place. This evolution in FCPA enforcement doctrine may increase the risk profile of non-U.S. companies (notwithstanding statements to the contrary in the Blanche Memo) and creates new opportunities for U.S. companies to obtain restitution in enforcement actions against foreign competitors for engaging in corrupt practices abroad.

Additionally, while indicating that traditional FCPA-enforcement actions are not going away, the Blanche Memo appears to prioritize cases implicating threats to U.S. national security interests, including the operations of cartels and Transnational Criminal Organizations (“TCOs”) and bribery involving key infrastructure or assets. Finally, the Blanche Memo signals that future enforcement will prioritize the most egregious corrupt misconduct evidencing substantial criminality, in apparent response to criticism that DOJ had been playing “small ball” with cases involving gifts and entertainment or expanding enforcement to cover matters well beyond the original intent of the law. The Department’s enforcement priorities may be more targeted than before, but the FCPA appears poised to remain a tool in DOJ’s white collar toolkit.

Background

The direction of FCPA enforcement had been uncertain for the first few months of the second Trump administration. On February 5, 2025, U.S. Attorney General Pamela Bondi directed DOJ’s FCPA Unit to prioritize cases involving bribery that facilitates the criminal operations of cartels and TCOs, including those related to human smuggling and the trafficking of narcotics and firearms (the “Bondi Memo”). The Bondi Memo further directed that FCPA enforcement “shift focus” away from cases that do not involve such connections. Days later, on February 10, 2025, President Trump signed an executive order temporarily suspending all new FCPA investigations and enforcement actions for a period of 180 days (the “Order”). The Order instructed the Attorney General to conduct a comprehensive review of FCPA enforcement policies to ensure they are consistent with the President’s priorities, claiming that recent FCPA enforcement had exceeded its intended scope and had been misused in ways that undermined U.S. interests by interfering with foreign policy objectives, diminishing the global competitiveness of American businesses, and adversely affecting national security. The Order called for the development of new guidance to better promote American economic competitiveness.

As the FCPA bar anxiously awaited further guidance, on May 12, 2025, DOJ issued a series of significant policy changes outlining the Trump administration’s new approach to white-collar enforcement (the “Enforcement Memo”).¹ The new guidance set forth a list of 10 white-collar crime priorities, which made clear that the Department views white-collar crime as a “significant threat to U.S. interests,” and that the Trump administration intends to fully investigate and prosecute white-collar crime alongside efforts to combat violent crime, immigration, cartels, and human trafficking. Although the Enforcement Memo offered strong hints at the future of FCPA enforcement, placing the FCPA within the top 10 white-collar enforcement priorities and second among the subject areas for whistleblowers to report, the memo lacked the specificity called for by President Trump’s Order.

The Blanche Memo

The wait for additional guidance ended on June 9, 2025, months earlier than expected given the 180-day review period. Consistent with the Bondi Memo, the Order, and the Enforcement Memo, the Blanche Memo details DOJ’s FCPA-specific enforcement guidelines. The guidelines articulate a non-exhaustive list of factors for prosecutors to consider when deciding whether to pursue an FCPA investigation or prosecution. The factors articulated in the Blanche Memo are:

1. Total Elimination of Cartels and Transnational Criminal Organizations: The Trump administration determined earlier this year that cartels and TCOs threaten international and regional stability and pose a threat to U.S. national security, foreign policy, and economic security.² Accordingly, the Blanche Memo emphasizes that a key factor in determining whether to initiate an FCPA investigation or enforcement action is whether the alleged misconduct: (1) is connected to the criminal activities of a cartel or TCO; (2) involves money laundering or the use of shell companies that launder money for cartels or TCOs; or (3) is related to employees of state-owned enterprises or other foreign officials who have accepted bribes from cartels or TCOs.

2. Safeguarding Fair Opportunities for U.S. Companies: Most noteworthy for U.S. companies, the Blanche Memo notes that the competitiveness of U.S. companies is critical to safeguarding U.S. national security and economic prosperity. It also observes that the “most blatant bribery schemes have historically been committed by foreign companies” underscoring the memo’s “America First” tone. Prosecutors are directed to consider whether bribery “deprived specific and identifiable U.S. entities” of fair competition or caused “economic injury to specific and identifiable American companies or individuals.” The Blanche Memo also seeks to target the “demand side” of foreign bribery by directing prosecutors to consider whether U.S. companies have been harmed by foreign officials who demand bribes. These focus areas indicate that DOJ may be positioning itself to prioritize enforcement actions against foreign companies that harm U.S. competition.

3. Advancing U.S. National Security Interests: The Blanche Memo directs prosecutors to focus on cases threatening U.S. national security due to “bribery of corrupt foreign officials involving key infrastructure or assets,” given the risk of strategic competitors exploiting corrupt officials to the strategic detriment of the United States.

4. Prioritizing Cases with Egregious Misconduct: The Order instructed that FCPA enforcement should not penalize U.S. companies and individuals for routine business practices in other nations. As a result, the Blanche Memo directs 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.” The memo also reiterates the FCPA exception for facilitating and expediting payments, and the affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.³

What This Means for Companies

The Blanche Memo signals a shift in FCPA enforcement toward targeting serious misconduct and cases that align with “America First” priorities. As DOJ adjusts the role that the FCPA plays in its toolkit, corporate compliance departments should ensure they are attentive to their companies’ shifting risk profiles.

• FCPA Enforcement Is Not Going Away. The Blanche Memo signals how a re-calibrated and re-imaged FCPA will be used in the near future, not the broad pullback that some pundits have predicted. The Enforcement Memo confirms that FCPA enforcement is still a priority for the Trump Administration, albeit with a more narrowly tailored and intentional focus. Unlike some other specialized components, the FCPA Unit remains a staffed unit at DOJ. Interestingly, although the number of dedicated FCPA prosecutors is lower than last year’s high, the FCPA Unit’s headcount remains about 20 percent higher than when President Trump first took office in 2017. Given that some of the FCPA Unit’s most consistently active enforcement years were under the last Trump Administration, it is conceivable that FCPA and other white collar enforcement numbers could exceed those seen under the Biden Administration.
• Consider Aligning Compliance Resources with Prioritized Risk Areas. Now that DOJ has provided a blueprint for FCPA enforcement, compliance officials are well-advised to consider whether the new priorities alter their company’s risk profile. A full risk assessment may be essential to align a company’s compliance resources with the Trump Administration’s priorities in some cases, whereas in others, a company’s existing program may be sufficiently attuned to cartel, TCO, and other national security risks. Knowing DOJ’s focus, however, companies should ensure their compliance resources are deployed to mitigate their highest risk points, which may differ under the new approach to FCPA enforcement.
• Now is an Opportune Time to Engage with DOJ if Issues Exist. DOJ’s current approach to corporate self-disclosure, while still retaining key disincentives, may make now the best time in recent history for companies to take a forward-leaning approach to engaging with the Department. Although changes to the Department’s Corporate Enforcement Policy are not necessarily significant departures from past practice, DOJ has taken steps to drop several pending investigations and terminated monitorships and other obligations imposed by recent agreements early. Positive resolutions now could be a shield to inquiries under future administrations or foreign authorities.
• If You See Something, Say Something. DOJ’s focus on bringing FCPA cases involving injuries to “specific and identifiable American companies or individuals” may signal a higher receptiveness to referrals from companies that lose international business opportunities to corrupt competitors. While it is important for a company that raises its hand to have clean hands itself, the potential for restitution as the victim to competitors’ criminal misconduct could give compliance departments the opportunity to drive additional value for the business while also helping the U.S. government clean up the markets in which their companies operate.

¹ V&E Alert: Focus, Fairness, & Efficiency: DOJ White Collar Policy Shifts Signal Recalibration, But Not Revolution in Enforcement

² Exec. Order No. 14,157, Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists, 90 Fed. Reg. 8439 (Jan. 29, 2025).

³ See 15 U.S.C. § 78dd-1(b), (c).