The following may be attributed to Professor Mike Koehler.
“The FCPA’s legislative history is clear that a main policy goal of Congress in enacting the FCPA was foreign policy. Moreover, the FCPA statute itself states that national security is a reason not to enforce the FCPA in certain situations. Thus, President Trump’s executive order linking FCPA enforcement to foreign policy and national security issues is nothing new.
As I have chronicled throughout my professional career, there is a difference between the FCPA (the statute as passed and as intended by the Congress) and FCPA enforcement. One common theme in the FCPA space over the past approximate 15 years is various people (Republicans and Democrats alike, several former high-ranking DOJ officials who used to enforce the FCPA, and many others) raising legitimate and good faith concerns about various aspects of FCPA enforcement – whether the enforcement theories advanced or the resolution vehicles used. While I don’t agree with every word used in the Executive Order on this issue, the general concepts have been discussed by a diverse range of individuals for approximately 15 years.
Prior DOJ administrations over the last approximately 15 years have issued FCPA policy documents relating to a variety of issues including FCPA enforcement. Thus, the directive in the Executive Order for the Attorney General to review guidelines and policies governing investigations and enforcement actions under the FCPA is really nothing new because the DOJ frequently does this.
The biggest impact on the Executive Order may be the directive “after the revised guidelines or policies are issued” for the Attorney General to determine whether “additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions, are warranted and shall take and such appropriate actions or, if Presidential action is required, recommend such actions to the President.” However, there have been examples in the past (sometimes years after charging) of the DOJ dropping FCPA charges “in the interest of justice” including after an individual has pleaded guilty. Moreover, Presidents have pardon power and have exercised pardon power in the past in connection with a wide variety of legal actions.”