US Department of Justice is backsliding on the Foreign Corrupt Practices Act of 1977 and anti-kleptocracy cases
On February 5, we learned that the new US Attorney General made significant changes to the Department of Justice’s (DOJ) FCPA approach as well as to their anti-kleptocratic measures. The new memorandum laid out that “[T] he Criminal Division's Foreign Corrupt Practices Act Unit shall prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs (transnational criminal organizations), and shift focus away from investigations and cases that do not involve such a connection.” They also eliminated the KleptoCapture Task Force and the Kleptocracy Asset Recovery Initiative. This change occurred on February 5, and since there have been a number of articles expressing concerns and disappointment.
Even though this memo looks like it is clarifying a few areas, it highlights the fact that the US Is backsliding, limiting what corrupt behaviors we will prosecute. This memo sends a message to US CEOs that they now have a “get out of jail free” card for themselves and their companies, as the limited focus eliminates prosecution for simple corrupt actions under the new FCPA enforcement approach. Our colleagues from TI, noted that “. for more than 50 years, the Foreign Corrupt Practices Act (FCPA) has been a model for countering corruption around the world, leading to untold numbers of corrupt officials and other criminals being held accountable.” Having interacted with US colleagues worldwide, the FCPA is known to have teeth, and American companies are responsible for their actions, forcing senior managers to be accountable.
Additionally, the DOJ is also back tracking worldwide anti-kleptocratic work. In Nigeria it may mean that “The United States may stop the return of monies stolen by Nigerian leaders to the country, including the so-called ‘Abacha Loot,’ with President Donald Trump directing the country’s Department of Justice (DOJ) to disband teams working on such anti-corruption cases.” This is a clear message that the US is not serious about corruption, in trying to recover monies from corrupt individuals worldwide.
What can be done? Even though the US is clearly signaling a weaker anti-corruption focus, this does not mean that corruption shouldn’t be considered important worldwide, for non-US governments and all potential investors. In these cases, there will be a greater need for stronger local enforcement and processes within countries, more local anti-corruption processes to be encouraged by local CSOs and regional bodies.
Link:
https://www.justice.gov/ag/media/1388546/dl?inline
https://www.arise.tv/us-may-halt-return-of-abacha-loot-as-trump-disbands-anti-kleptocracy-units/