EO 14209: Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security

Executive Orders

TLDR

This executive order implements a 180-day pause on new FCPA investigations, requiring Attorney General approval for new cases and review of existing ones. It frames FCPA enforcement as harmful to U.S. competitiveness and positions enforcement as interfering with presidential foreign policy powers. The order requires updated enforcement guidelines and personal AG authorization for future investigations.

This executive order represents a significant shift in the enforcement of the Foreign Corrupt Practices Act (FCPA). Here’s a detailed analysis:

The order implements a 180-day pause on new FCPA investigations and enforcement actions, with potential extension for another 180 days. During this period, new cases can only proceed with explicit Attorney General approval.

The Attorney General is directed to:

  • Review all existing FCPA investigations and enforcement actions
  • Issue updated guidelines prioritizing presidential foreign policy authority
  • Evaluate and potentially implement remedial measures for past FCPA actions
  • Authorize all future FCPA investigations personally

The order frames FCPA enforcement as harmful to U.S. economic competitiveness and national security, suggesting current enforcement impedes American companies’ ability to compete globally.

The order relies heavily on Article II presidential powers over foreign affairs, positioning FCPA enforcement as interfering with the President’s constitutional authority to conduct foreign policy.

This represents a significant relaxation of anti-corruption enforcement, potentially allowing U.S. companies more operational flexibility in international markets where certain business practices that might have previously triggered FCPA violations are common.

The order could affect U.S. standing in global anti-corruption efforts and potentially impact relationships with countries that have strong anti-corruption frameworks.

Analysis

While the order maintains it will be implemented “consistent with applicable law,” it effectively curtails a major anti-corruption statute’s enforcement without congressional involvement.

This represents a fundamental shift from viewing the FCPA as a tool for promoting ethical business practices to seeing it as an impediment to American economic interests abroad.

The order’s impact will largely depend on how the Attorney General implements these directives and whether legal challenges emerge regarding the executive branch’s authority to effectively suspend enforcement of a congressional statute.

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1.

Purpose and Policy.

Since its enactment in 1977, the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (FCPA) has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States. Current FCPA enforcement impedes the United States’ foreign policy objectives and therefore implicates the President’s Article II authority over foreign affairs.

The President’s foreign policy authority is inextricably linked with the global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.

But overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.

It is therefore the policy of my Administration to preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.

Sec. 2.

Policy of Enforcement Discretion.

(a) For a period of 180 days following the date of this order, the Attorney General shall review guidelines and policies governing investigations and enforcement actions under the FCPA. During the review period, the Attorney General shall:

(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;

(ii) review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matters to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and

(iii) issue updated guidelines or policies, as appropriate, to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.

(b) The Attorney General may extend such review period for an additional 180 days as the Attorney General determines appropriate.

© FCPA investigations and enforcement actions initiated or continued after the revised guidelines or policies are issued under subsection (a) of this section:

(i) shall be governed by such guidelines or policies; and

(ii) must be specifically authorized by the Attorney General.

(d) After the revised guidelines or policies are issued under subsection (a) of this section, the Attorney General shall determine whether additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions, are warranted and shall take any such appropriate actions or, if Presidential action is required, recommend such actions to the President.

Sec. 3.

Severability.

If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.

Sec. 4. General Provisions

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

© This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE,

February 10, 2025.