To date, President Donald Trump has signed close to 100 Executive Orders (EOs) that signal the Trump Administration’s policies and key priorities, including objectives related to corporate crime and international trade and the Administration’s desire to enhance government efficiencies.
On January 20, 2025 President Trump issued a memorandum, “American First Trade Policy,” calling for a series of reviews of US trade policy and investigations into trade imbalances and unfair trade practices. In the following weeks, the Trump Administration issued a series of EOs and memoranda effectuating these goals.
For example, on February 5, 2025, Attorney General (AG) Pam Bondi issued “Total Elimination of Cartels and Transnational Criminal Organizations [(TCOs)],” a memorandum which, in part, directed the US Department of Justice’s (DOJ) Foreign Corrupt Practices Act (FCPA) Unit to “prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs” and dispersed responsibility for FCPA prosecutions for cartels and TCOs beyond the FCPA Unit to individual US Attorney’s offices.
Subsequently, on February 10, 2025, President Trump signed “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security,” an EO which has previously discussed in our client alert. The February 10, 2025 EO directs the AG to pause enforcement of the FCPA for 180 days until new enforcement guidelines and policies addressing FCPA enforcement are published.
The February 10, 2025 EO further emphasizes the Trump Administration’s policy to “preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.” It also notes that “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.”
On the same day, the White House also issued a Fact Sheet about the February 10, 2025 EO wherein it noted, in part, that President Trump was “stopping excessive, unpredictable FCPA enforcement that makes American companies less competitive.”
This article will explore the possible impact of the Trump Administration’s policies and key priorities on the FCPA and the False Claims Act (FCA) and provide guidance to companies during this period of enforcement uncertainty.
Enforcement of the FCPA under the Trump Administration
Increased emphasis on prosecutions of non-US companies
The February 10, 2025 EO and the Trump Administration’s emphasis on eliminating cartels and TCOs, identified in AG Bondi’s February 5, 2025 memorandum (and discussed in our client alert), suggests that FCPA enforcement against US companies may generally slow in 2025. This is especially likely given the February 10, 2025 EO’s directive that pauses new investigations and enforcement under the FCPA for 180 days; requires the AG to review existing investigations and enforcement actions in light of President Trump’s objectives; and requires the AG to issue updated guidelines and/or policies that “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.”
However, given the Trump Administration’s policy objective to enhance American economic advantages by eliminating barriers to commerce abroad, it is possible that enforcement against US companies could decrease and enforcement related to non-US companies for FCPA violations could increase. As the February 10, 2025 Fact Sheet noted, “U.S. companies are harmed by FCPA overenforcement because they are prohibited from engaging in practices common among international competitors, creating an uneven playing field.”
The DOJ has historically brought FCPA actions against US and non-US companies alike, so non-US companies should already be aware of the risk of FCPA enforcement from the DOJ. For example, in 2024, the DOJ announced eight corporate enforcement actions, four of which were against non-US companies. However, the Trump Administration’s policy objectives, including its “America First” international economic and trade policies – and goal of leveling the playing field – may result in a marked increase in FCPA enforcement activity against non-US companies.
Shifts in cooperation with foreign enforcement agencies and foreign enforcement activity
As the US changes its posture with many of its traditional international enforcement partners, the pre-existing structure of enforcement and international cooperation may change. In terms of cooperation, one alternative is that the US government could collaborate with non-US investigations; another is that the US government could minimize such collaboration, potentially resulting in a more uncertain cooperative environment. Non-coordinated investigations and resolutions also pose risk.
Further, an increase in US enforcement actions against non-US companies may prompt non-US enforcement agencies to investigate US companies with greater frequency and intensity to fill any gaps that may arise from decreased DOJ focus on US companies. Without specifically indicating that it was a response to the February 10, 2025 EO, on March 20, 2025, the UK’s Serious Fraud Office, Switzerland’s Attorney General, and France’s National Financial Prosecutor’s Office launched an International Anti-Corruption Prosecutorial Task Force to “strengthen [their] collective effort” to combat bribery and corruption “within the national and international legal frameworks.”
Moving forward
Bribery is still illegal in the US and around the world. All companies are therefore encouraged to continue abiding by the FCPA and other applicable anti-corruption laws. Further, all companies should be mindful of the laws in the jurisdictions where they do business to ensure that they are acting in accordance with such laws as well.
Companies are also encouraged to continue maintaining accurate records and adequate internal controls and compliance programs; the preexisting enforcement structure is changing, and even small violations could be used as a hook for both US and non-US enforcement agencies.
The potential for corporate whistleblowers to raise concerns with external regulators also remains a significant risk given the various whistleblower programs that are in place and remain unchanged in the US and elsewhere. Companies are encouraged to proactively ensure that any reports or concerns that are raised internally are analyzed quickly, and to thoroughly document any investigations and measures taken in response.
Enforcement of the FCA under the Trump Administration
Based on recent statements, the Trump Administration appears to view the FCA as an important enforcement tool. This, notably, does not represent a change from the Biden Administration’s approach. For example, in 2024, the DOJ actively enforced the FCA, collecting settlements and judgments exceeding $2.9 billion for the fiscal year. Former officials explained that the FCA and associated whistleblower provisions were a “critical tool in protecting the public fisc [sic] and ensuring that taxpayer funds serve the purposes for which they were intended.”
Potential uses of the FCA
First, we could see the Trump Administration continue the Biden Administration’s approach of using the FCA to prosecute government contractors for procurement fraud. Given the Trump Administration’s establishment of the Department of Government Efficiency and stated efforts to “review[] all existing covered contracts and grants and … terminate or modify [them] to reduce overall Federal spending or reallocate spending to promote efficiency,” it is possible that the Trump Administration may identify instances of fraud and seek to use the FCA to hold those involved accountable.
Next, the Trump Administration may expand the scope of the FCA by using it in contexts other than healthcare and defense spending, where it has traditionally been employed. We could see the FCA used to enforce foreign trade issues and prosecute those who seek to avoid paying tariffs under a “reverse” false claims theory. This approach would be possible because the FCA applies to any entity that “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.”
Currently, US Customs and Border Protection (CBP) can initiate enforcement actions against importers who underpay duties under 19 U.S.C. § 1592; however, using the FCA to combat tariff evasion would allow private litigants, acting as whistleblowers, to bring cases against importers who underpay or fail to pay duties.
In fact, this month, we saw DOJ settle a matter with a California-based importer of wood flooring, and its owners, to resolve a lawsuit filed by a private litigant under the FCA. The settlement resolved allegations that the company violated the FCA by knowingly and improperly evading customs duties on goods imported into the US by, in part, causing false information to be submitted to CBP about the goods’ country of origin and manufacturers.
Moving forward
With respect to the risk that the FCA may be used to prosecute those who seek to avoid paying tariffs, companies importing goods to the US are encouraged to ensure that goods are appropriately classified, that paperwork is accurate, especially with respect to country of origin and value, and that appropriate policies and procedures are in place to ensure compliance with existing tariffs as well as forthcoming tariffs.
Further, all companies are encouraged to ensure that they have robust internal reporting channels for whistleblowers and that they take internal reports seriously: Identifying an issue early and self-reporting to the DOJ may be in the company’s best interest.
Conclusion
While, to date, it remains unclear whether, and how, the FCPA and FCA enforcement landscape may change, companies are encouraged to continue complying with all applicable laws, while assessing risks and challenges that may arise from the Trump Administration’s new policies and priorities.
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