The Trump Administration official with immediate responsibility for overseeing enforcement of the Foreign Corrupt Practices Act suggested yesterday there would be little change in the act’s enforcement under the new administration. Trevor N. McFadden, newly-installed as Deputy Assistant Attorney General in the Criminal Division of the Department of Justice, told a Washington audience that while it would be “hard to predict exactly” how enforcement will evolve, “some common themes are clear.” The three he identified:
1) FCPA enforcement will continue to be a priority. “The FCPA has been and remains an important tool in this country’s fight against corruption.” McFadden underlined that at his confirmation hearing incoming Attorney General Jeff Sessions “explicitly noted his commitment to enforcing the FCPA, and to prosecuting fraud and corruption more generally.” McFadden went on to stress that “The fight against official corruption is a solemn duty of the Justice Department, emphasizing that “each generation of Department leaders and line prosecutors takes up this mantel from their predecessors, regardless of party affiliation.”
2) Prosecution of individuals remains a priority. In a September 2015 Memo to Justice Department prosecutors, “Individual Accountability for Corporate Wrongdoing,” then Obama Administration Deputy Attorney General Sally Yates stressed the importance of prosecuting individual corporate executives and employees for corporate crimes. In his remarks McFadden not only seconded this effort but suggested that the growing cooperation between the Department and foreign law enforcement authorities would lead to its expansion. “The Criminal Division will continue to prioritize prosecutions of individuals who have willfully and corruptly violated the FCPA. … Indeed, our partnerships with foreign authorities are increasingly allowing us to ensure that even individuals living abroad are held accountable for their actions.”
3) Cooperating defendants will be rewarded. Seconding a long-standing DoJ policy, the newly appointed Deputy Assistant Attorney General said a corporation’s voluntary disclosure of violations coupled with its cooperation and remedial efforts will remain an important factor when making charging decisions. “These principles continue to guide our prosecutorial discretion determinations, and they further our ultimate goal of compliance with the law.”
McFadden spoke to a group of lawyers, accountants, and others involved in counseling corporations on FCPA issues at a conference organized by Global Investigations Review, perhaps the leading global news service on the enforcement of corporate criminal law. Previously a partner at a major American law firm, McFadden brings a background both in public service, as an aide to the Deputy Attorney General in the George W. Bush Administration, and in private practice where he specialized in FCPA compliance work. From all accounts a mainstream Republican who could well have been appointed to the same position by any Republican president, McFadden’s remarks strongly suggest that whatever changes the Trump Administration may have in store elsewhere, it will not back off vigorous enforcement of the FCPA. The full text of his remarks are here.