Will Trump Make America Corrupt Again? (AmericanLawyer.com)

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Will Trump Make America Corrupt Again?

Michael D. Goldhaber, The Global Lawyer
December 16, 2016

Of the myriad laws imperiled by Donald Trump's election, few keep lawyers busier than the Foreign Corrupt Practices Act. For more than a dozen years, since the Sarbanes-Oxley Act ramped up disclosure and the U.S. Department of Justice staffed up its fraud section, the U.S. has vigorously played the role of global corruption cop. Can America remain an apostle of integrity under Trump? Opinion is divided.

Trump's most direct signal (he doesn't really do indirect) was to call FCPA a "horrible law" on CNBC in 2012. That should come as little surprise given his obsession with U.S. companies "winning," and his disdain for moral niceties. In a much-remarked post on the Global Anti­corruption Blog, Matthew Stephenson of Harvard Law School proclaimed that "the era of vigorous FCPA enforcement … is over." Professor Stephenson sees a grave risk that U.S. prosecution will become more politicized for both global and domestic bribery. "I'd be shocked if the US maintained anything like its current level of FCPA enforcement," he wrote.

On the other hand, the FCPA will almost surely stay on the books, and Preet Bharara, who's no friend of white-collar criminals, will remain U.S. attorney in the Southern District of New York. Although Jeff Sessions dislikes deferred prosecutions, the attorney general-to-be has made strong statements on corporate crime. Any pressure to pull punches for political reasons would surely lead career prosecutors at both Justice and the U.S. Securities and Exchange Commission to take a moral stand. Peter Henning of the New York Times White Collar Watch thinks FCPA will likely "continue to thrive," and Ata Farhadi of the Lateral Link consultancy predicts that "FCPA will continue to be a hot area."

For the sake of argument, let's assume that Stephenson is right and the era of strong FCPA enforcement is over. In my last column on corporate responsibility, and in a column on transparency to be published in the January issue of The American Lawyer, I conclude that a U.S. retreat would have limited consequence in areas where the EU has already claimed the mantle of regulatory leadership. Multinationals will continue to observe the norms of transparency and corporate responsibility because they are usually set by the EU, and because many industries have adopted serious voluntary codes informed by the leading global regulatory standards. Unfortunately, none of this analysis applies to anti-corruption. The FCPA is irreplaceable.

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