‘Go Ahead And Bribe People… For AMERICA!’ Becomes DOJ’s Sad New FCPA Model

Befitting a nation run by a casino boss looking to build hotels in shady dictatorships, the United States put a stop to its Foreign Corrupt Practices Act enforcement efforts when Trump took office. But you can’t keep a good statute down and the FCPA is back with new guidance that boils down to… “yeah, pretty much go ahead and bribe people unless it hurts an American company.”

What does that caveat even mean? Unclear!

Get your briefcases full of cash — or, more accurately, your digital wallets full of TRUMP coin — and go wild. Because at the point the DOJ takes the position that bribery isn’t always detrimental to U.S. business, it’s conceding that it’s never really an issue.

Almost like the country elected someone convicted of multiple felonies stemming from a corrupt scheme to bribe someone. Hmmmm.

Per the National Law Journal:

In the past, presidents were of the general belief that preventing corruption was in the nation’s best interest, but the Trump administration is now ensuring that it prosecutes only cases directly relevant to U.S. economic and national security interests, said Donoghue, now a partner at Pillsbury Winthrop Shaw Pittman.

The “general belief that preventing corruption was in the nation’s best interest” stemmed from a sense that a level foreign market will inure to the benefit of the richest country on Earth. We all used to believe that, for example, AT&T or GM would win that overseas business unless someone tried to bribe Captain Renault into awarding it to someone else. Which is probably still true, though to the extent it’s not, the “non-American” country winning the business will still likely be backed by Wall Street financiers owning massive stakes. It may not be all, but MOST roads lead back to America.

Though, as the tariff debacle revealed, the remedial economics club running this administration holds a few centuries outdated mercantilist worldview that divides business into “American” and “Everyone Else,” and thinks the laws of the United States must be weaponized only against the latter. So, theoretically, it’s still bad news for Honda to bribe a country to buy the cars made in the U.S., but it’s still fine for GM to bribe a country to buy cars built in Mexico.

Paradoxically, blessing “American” bribery only incentivizes foreign officials to engage in more pay-to-play, resulting in more bribery schemes that compromise American businesses.

All of which is unnecessary because the existing FCPA enforcement regime was already punishing foreign companies that bribed people. In fact, they were being punished MUCH MORE:

[Duke University School of Law professor Rachel Brewster] said the administration is wrong in thinking American companies are unfairly targeted by the FCPA. Foreign companies pay fines at a rate three times higher than American companies for FCPA violations, Brewster added.

Trump heavily implied in the executive order that “U.S. corporations need to be able to bribe and they’re being harmed internationally if they can’t,” Brewster said. “And what I’m saying is that that is incorrect, because, in fact, the DOJ did … go after foreign corporations that bribe.”

The FCPA was passed in 1977 to police the global market because back then, we had a government that realized America’s greatest economic strength is its consumption. Foreign companies need access to the U.S. market and if they want to play here they have to play by our rules everywhere. The fairer the competition, the better for the U.S. everywhere. The only colorable argument for abandoning the FCPA like this is that the U.S. no longer boasts that market power because, say, there are Chinese companies out there that just don’t need U.S. consumers and won’t opt into the U.S. regulatory regime. Though a narrowly tailored set of exceptions would better address those specific scenarios. But nuanced, research-driven solutions aren’t this gang’s strong suit.

Now, FCPA enforcement is its own corrupt bribery scheme. Everyone has to pay us in the form of business they’d rightfully win if America wasn’t busy lining dictator pockets with graft.

It’s a remarkable admission that the executive branch simply doesn’t believe in America.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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