Author Archives: Richard Messick

Conference on Global Capitalism, Trust and Accountability

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Can democratic governments hold global capital accountable? What are the consequences if they fail?  

These are the questions that will be examined at an April 4 and 5 conference at Stanford University. Among the issues speakers will address are the law and politics of corruption, opacity and illicit flows, and corporate misconduct and the law.

The live streamed event is being organized by Stanford’s Program on Capitalism and Democracy and is co-sponsored by its Graduate School of Business and the Center on Democracy, Development and the Rule of Law of the Freeman Spogli Institute for International Studies . In addition to academic authorities, speakers include Judge Jed Rakoff, Kenya corruption fighter John Githongo, TI USA Director Gary Kalman, and Italian prosecutor Fabio de Paquale.  

Registration and program details here.

An Assessment of the Swiss Return of Stolen Assets to Uzbekistan

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The return of assets stolen by corrupt means is “a fundamental principle” of the United Nations Convention Against Corruption, and the Convention mandates that its now 191 state parties “afford one another the widest measure of cooperation and assistance” to ensure states victimized by corruption recover the proceeds of the crime wherever they are located (article 51).

Easy enough to state the principle. And easy enough to implement where the victim state’s leaders are democratically chosen, committed to advancing citizens’ well-being, and corruption is under control. But what if those conditions don’t hold? What if the same kleptocrats who stole the assets are still in power? Even if the crooks have been purged, so long as autocrats run the government, what guarantee is there that the assets won’t simply enrich the current powerholders? Or worse yet, fund measure to further repress their citizens?

As my friend and former Soros Foundation colleague Alisher Ilkhamov describes in the current issue of Central Asian Due Diligence (here), Switzerland is working through these issues as it begins to return to Uzbekistan the several hundred million dollars the former president’s daughter Gulnara Karimova stole. Uzbekistan’s government is a step above where it was when Gulnara set the record for shaking down foreign investors, but a budding democracy it is not. By a long shot.

Alisher describes the conditions Switzerland attached to the return of a first tranche of $131 million in 2022, how they were implemented, and how that experience should inform the recent agreement between Switzerland and Uzbekistan to return another $182 million. His assessment will be of value to policymakers everywhere wrestling with the return of stolen assets to states that fall far short of democratic, good governance norms.

Who Will Defend the FCPA?

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Last month President Trump ordered Attorney General Bondi to “cease initiation of any new FCPA investigations or enforcement actions” while she determines whether the way the act is now enforced advances American interests. If she finds it is not, the Presidential Executive Order directs her to revise the current enforcement guidelines. In theory any revision will be driven by what an objective review finds; in fact Trump’s February 10 order has loaded the dice. It starts off proclaiming FCPA enforcement:

“has been systematically, and to an increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States”

It continues:

“Overexpansive and unpredictable FCPA enforcement against American citizens and businesses … for routine business practices in other nations … wastes limited prosecutorial resources [and] actively harms American economic competitiveness.

These claims are patently false — as those who have watched the uptick in FCPA prosecutions or been involved in them know.  They must now speak up: To prevent Trump and Bondi from derailing one of the most successful efforts to fight global corruption since the international community made it a priority.

The list of witnesses is long. It includes not only American executives, lawyers, FBI investigators and federal prosecutors but the counterparts in countries rich and poor who have worked with them to curb the scourge of bribery. They need to present the “true facts” to Attorney General Bondi to counter the “alternate facts” in the Trump order.

Already two former OECD General Counsels and three former chairs of its Working Group on Bribery have. In a February letter to Bondi they explain that the FCPA has advanced American interests by protecting “US companies from unfair practices by foreign companies” and they go on to provide additional evidence and reasons why FCPA enforcement policy requires little if any revision. Others need to go on record with stories of how and where enforcement measures helped American businesses and created good will for American interests generally.

Given Bondi’s unwavering fealty to Trump, the real facts are unlikely to stand in the way of her making drastic changes in FCPA enforcement, but changes will be subject to challenge in both a court of law and the court of public opinion. The more evidence on the record that that current enforcement policy advances American interests, the more likely any misguided revisions will be rejected.

Bondi has until August 9 to complete her review with the possibility of a 180 day extension. The sooner the true facts are on the record and the alternate ones revealed as half-truths existing in an alternate universe, the better. Submissions should be addressed to: The Honorable Pamela Bondi with the salutation Dear Attorney General Bondi: Her address:

  •  950 Pennsylvania Ave., N.W.
  •  Washington, D.C. 20530

GAB would be pleased to receive and share with readers copies of any submission.

Will the Outgoing Namibian President Pardon the Fishrot Defendants?

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On August 4 two former Namibian ministers, other once high-ranking government officials, and their accomplices go on trial for stealing millions of dollars from Namibian citizens. Unless, that is, President Nangolo Mbumba pardons them before leaving office March 20.

The pardon would not only subvert the rule of law but indelibly tarnish ruling party SWAPO’s legacy. 

SWAPO, the South West Africa People’s Organization, began life fighting to free Namibians from the grip of apartheid South Africa. Since securing Namibia’s independence in 1990, the party has won the respect of democracy advocates everywhere. In contrast to Mozambique’s FRELIMO and Angola’s MPLA, it has begun the transition from a tightly disciplined, brook-no-opposition guerilla army to a broad-based political party.

SWAPO is not all the way there yet, but seeing that senior party members are held accountable for taking bribes in Fishrot, where Icelandic fishing giant Samerherji paid defendants and possibly other SWAPO members for the rights to fish off the Namibian coast, is surely a major stride forward. (Fishrot details here, here, here, here)

The trial could well put on display more of the party’s dirty laundry. Hence the reason why some in the party’s inner-circle are pressuring President Nangolo to pardon the crooks. Their argument: a pardon will clear the decks for incoming President Netumbo Nandi-Ndaitwah to carry through on needed reforms without the distraction of Fishrot prosecutions. And Nangolo is retiring and so can take the political fall out from letting defendants off the hook.

The truth is the inner-circle’s real motive is nakedly self-serving. During the campaign, Nandi-Ndaitwah made her commitment to the rule of law crystal clear, virtually ensuring she will neither derail the prosecution nor lighten defendants’ sentences if, as expected, they are convicted. Indeed, some in SWAPO’s inner-circle fear she may countenance civil suits to force all those responsible for Fishrot, including those insiders pushing pardons, to compensate Fishrot victims for the tremendous harms the bribery caused them. (Damages fisherman suffered documented here and here.)

Will those among SWAPO’s founders committed to a liberal democratic, corruption-free future for Namibia join with the party’s younger, more progressive members to persuade President Mbumba to leave office honorably? To ensure that the efforts revered party founder Sam Nujoma and others have made to set SWAPO and Namibia on the democratic path continue?  

Supreme Court Likely to Ok Trump’s Firing of Whistleblower Protection Agency Head — But

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Anticorruption activists will almost certainly soon awake to more bad news about the Trump Administration and corruption: A Supreme Court decision upholding the sacking of the official responsible for protecting government whistleblowers.

A Trump win at the Supreme Court is bad news, both in legal and public relations terms. But the anticorruption community and those worried about Trump’s abuse of executive power should temper their laments. Especially because their lamentations will amplify the PR value of the win.

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U.S. Prosecutors Resign Rather Than Obey Order to Drop Corruption Charges

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Corruption fighters around the world are surely appalled at the Trump Administration’ s latest strike against the rule of law. And certainly heartened by the refusal of both politically-appointed and career prosecutors to be complicit.

On February 10 Acting Deputy Attorney General Emile Bove ordered federal prosecutor Danielle Sassoon to dismiss bribery charges pending against New York City Mayor Eric Adams. Sassoon, a Trump appointee, resigned in protest.  Bove then went down a list of career prosecutors hunting for someone who would obey his order. At last count seven had also resigned rather than carry out the order. Details on the still developing story from open sources are here, here, and here.

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TI USA: Attorney General’s Memorandum Redirecting U.S. Anti-Corruption Efforts Raises Questions and Concerns

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Below is the statement TI US released today in response to Attorney General Bondi’s Memorandum directing federal prosecutors “to shift focus away from FCPA and FEPA investigations that do not involve” criminal cartels and transnational crime and disbanding DoJ’s KleptoCapture Task Force and Kleptocracy Asset Recovery Initiative. Enforcement of the Foreign Corrupt Practices Act has enjoyed broad, bipartisan support. Congress passed the Federal Extortion Prevention Act by a wide margin and has regularly approved funding for the KleptoCapture Task Force and the Kleptocracy Asset Recovery Initiative. GAB shares TI USA’s concerns about the Attorney General’s Memorandum and hopes she will reconsider it as supporters in Congress, the business community, and the anticorruption community make their concerns known.

Washington, DC—On February 5, 2025, Attorney General Pam Bondi circulated a Memorandum to U.S. Justice Department employees with the subject heading “Total Elimination of Cartels and Transnational Criminal Organizations.”

The Memorandum explains the outlined changes as a step toward implementing President Trump’s January 20, 2025, Executive Order entitled “Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists.”

Among the changes are directives to (1) eliminate the KleptoCapture Task Force and the Kleptocracy Asset Recovery Initiative (KARI); (2) prioritize Foreign Corrupt Practices Act (FCPA) and Foreign Extortion Prevention Act (FEPA) investigations that are related to foreign bribery that facilitates the criminal operations of cartels and transnational criminal organizations (TCOs); (3) shift focus away from FCPA and FEPA investigations and cases that do not involve such a connection; and (3) remove the “bureaucratic impediment” requiring that investigations and prosecutions under the FCPA or FEPA regarding foreign bribery associated with cartels and TCOs first be authorized by, as well as conducted solely by, the Criminal Division and the Fraud Section, respectively, of the Department of Justice in Washington, D.C.

Transparency International U.S Executive Director Gary Kalman issued the following statement:

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Italian Prosecutors’ Criminal Conviction For Not Disclosing Information in OPL-245 Bribery Case Called A Travesty of Justice

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“Questionable conjectures” and “illogical reasoning” produced a decision which “does not correspond to the reality or the nature of the crime.” That is how Italian legal scholar Nello Rossi explains the conviction of prosecutors Fabio de Pasquale and Sergio Spadaro for their failure to disclose information to Shell and ENI during the trial of the two for paying massive bribes to secure the rights to Nigerian oil tract OPL-245.

Writing in the January issue of a leading Italian law journal (original; translation), the former judge, Deputy Chief Prosecutor, and High Council of the Judiciary member excoriates the November 11 judgement by a trial court sitting in Brescia (here), showing it to be the result of an unprecedented, unrealistic reading of the governing law together with misstatements if not down-right misrepresentations of the facts.

In finding the prosecutors guilty of failing to perform an official act, the court ruled the law requires prosecutors to automatically turn over to defendants all material received from any third-party before or during trial no matter its credibility or relevance. That the two decided to secretly withhold the material, the court said, showed they knew withholding it was a crime. To buttress its decision, the court added that the material’s disclosure would have affected how the judges in the bribery case assessed the evidence.

Rossi’s meticulous analysis of the court’s decision eviscerates each of these contentions.

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Guest Post: State of Corruption in Mongolia and Government’s Plans to Address It

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The fight against corruption in Mongolia, a fledgling democracy wedged between Russia and China, is especially challenging. Not only must corruption fighters in government and allies in civil society contend with constant meddling in its internal politics by its powerful neighbors, but its vast resources of copper, coal, and other minerals create enormous incentives for home-grown corruption. GAB is pleased to publish this guest post on the current developments in the fight against corruption fight by Mongolian lawyer Battsengel Bayarbaatar, an expert in intellectual property law and long-time good governance, anticorruption advocate and due diligence expert.

Mongolia is currently grappling with significant corruption issues, a central concern for both the public and the government. The situation has intensified due to several high-profile corruption scandals, particularly within the mining sector, a cornerstone of Mongolia’s economy.

One of the most prominent cases is the so-called “coal theft” scandal, which erupted in late 2022. This scandal involves allegations that large quantities of coal were illegally transported to China, leading to an estimated loss of up to $12 billion for the Mongolian economy (here). High-ranking officials and influential business figures were implicated in this scheme, triggering widespread public outrage and protests. The Mongolian government responded by launching several criminal investigations and reforming laws related to strategic minerals. However, despite these efforts, enforcement remains weak, and the institutional coordination necessary to address these issues effectively is lacking.

The public’s dissatisfaction with how corruption is being handled reached a boiling point in December 2023 when massive protests broke out in Ulaanbaatar’s Sukhbaatar Square. These protests were primarily driven by youth and various civil society groups demanding transparency and accountability from the government, particularly concerning the coal theft case. The protests are reflective of broader frustrations within Mongolian society over issues such as inequality, unemployment, and environmental degradation. The government has responded to some demands, such as declassifying information related to state-owned enterprises like Erdenes Tavan Tolgoi, but many in the public remain skeptical of the government’s commitment to genuine reform.

In response to these challenges, the Mongolian government has introduced a new anti-corruption strategy, which aims to tackle corruption comprehensively by 2030.

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Italian Court: That ENI Bribed Nigerian Officials for Rights to OPL-245 Based on “Multiple Reliable Sources”

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A courageous Italian judge has affirmed that the evidence showing oil giant ENI paid massive bribes for rights to Nigerian oil block OPL-245 is reliable. Judge Francesca Giacomini ruled in December that ENIgate, a book reporting the bribery scheme, was based on “multiple reliable sources.”

In her opinion she not only dismissed ENI’s lawsuit that author Claudio Gatti and publisher Il Fatto (“the Fact”) had defamed the company by claiming it had paid bribes but ordered it to pay defendants’ legal fees as well.

Saying OPL-245 was secured through bribery isn’t what makes Judge Giacomini courageous. The bribery has been a matter of public record for over a decade (here).

The judge merits the accolade for having the fortitude to say so in the face of the fecklessness and likely downright corruption of her judicial colleagues (here). On even more evidence than she had before her, three of them exonerated ENI, its executives, and accomplices of all bribery charges with the flimsiest of reasoning (here). Even more scandalous, in a separate case a fourth found the prosecutors guilty of a crime for how they chose to present the case.

That case rests on an imagined set of facts and an unprecedented interpretation of Italian law (here). Is it too much to hope that the court hearing the appeal show the same courage as Judge Giacomini?

Time for English translation?

Key excerpts of Judge Giacomini’s ruling in English, courtesy of Google and Microsoft office translation programs, below.  Full text of decision here.

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