DOJ Leadership Highlights Criminal Enforcement Priorities in New FCPA Memorandum and Public Remarks
Client Alert | June 12, 2025
Gibson Dunn will continue monitoring these developments and reporting to our trusted friends and clients in the days, weeks, and months ahead.
Two notable developments this week have clarified DOJ’s approach to corporate criminal enforcement generally under the Trump Administration and ended a four-month pause in bringing new enforcement actions under the Foreign Corrupt Practices Act (FCPA).
During a speech on June 10, 2025, the Head of DOJ’s Criminal Division, Matthew R. Galeotti, publicly announced the issuance of a memorandum dated June 9, 2025, by Deputy Attorney General Todd Blanche (Blanche Memorandum). The Blanche Memorandum provides much-anticipated guidance to the DOJ Criminal Division regarding the investigation and enforcement of the FCPA. In addition, Galeotti’s remarks highlighted several notable developments in the DOJ Criminal Division’s approach to corporate enforcement more generally and emphasized the Department’s focus on incentivizing corporate self-disclosure and cooperation and targeting the misconduct of specific individuals.
This guidance follows a February executive order in which President Trump paused new FCPA enforcement actions and directed DOJ to prepare the new guidance, as discussed in greater detail in our prior alert. That executive order mandated that any FCPA investigations or enforcement actions initiated or allowed to continue afterward must be governed by the revised guidelines and be “specifically authorized by the Attorney General.” The executive order followed a memorandum by Attorney General Pamela Bondi that instructed DOJ’s FCPA Unit to prioritize cases with a nexus to cartels and transnational criminal organizations (TCOs), while shifting focus away from cases lacking such nexus, as discussed in another prior alert.
The Blanche Memorandum
The much-awaited memorandum, titled Guidelines for Investigations and Enforcement of the FCPA, seeks to address directives in President Trump’s executive order by expressly “limiting undue burdens on American companies that operate abroad” and “targeting enforcement actions against conduct that directly undermines U.S. national interests.” More specifically, under the Blanche Memorandum, prosecutors must now consider four separate, non-exhaustive factors in determining whether to pursue FCPA investigations or enforcement actions:
- Total Elimination of Cartels and TCOs – whether the misconduct (1) is directly tied to a cartel or TCO, (2) relates to money laundering efforts on behalf of a cartel or TCO, such as through a shell company, or (3) involves a foreign official or SOE employee who has received bribes from a cartel or TCO previously.
This factor ties into the Administration’s previously declared criminal enforcement priority of addressing the impact of cartels and TCOs on U.S. national security, foreign policy, and economy. The Blanche Memorandum leaves little doubt that FCPA enforcement will now provide another avenue for combatting the influence of entities and individuals with financial ties to cartels and TCOs . Including this factor in the Blanche Memorandum may further signal a shift toward more FCPA investigations wherever cartel and TCO connections exist—and possibly fewer in the absence of such links.
That said, the Memorandum creates ambiguity as to the scope of FCPA enforcement, making it increasingly difficult to predict how and when the FCPA Unit and DOJ’s political leadership will use their enforcement authority. For example, the third scenario described above, relating to foreign officials who have received bribes from cartels or TCOs in the past, could apply to companies or individuals who pay a bribe to a government official without any knowledge that the official had previously received a bribe from a cartel or TCO. In practice, this should not impact a company’s compliance measures, particularly given the difficulty of ascertaining the existence of any such prior bribes. It does, however, give DOJ flexibility to target jurisdictions with substantial cartel presence, such as Mexico and Venezuela.
- Fair Opportunities for U.S. Companies – whether, and the extent to which, alleged misconduct adversely impacts the ability of U.S. entities to compete for and obtain business abroad.
The Blanche Memorandum highlights the way in which bribery skews markets to the disadvantage of law-abiding companies and directs prosecutors to consider the competitive and economic injury suffered by “specific and identifiable” American companies due to corruption. The Memorandum notes that DOJ will not focus on the nationality of the bribing entity but rather will prioritize prosecuting activities that harm U.S. national security and economic prosperity. Footnote 4 of the Blanche Memorandum does, however, assert that “[t]he most blatant bribery schemes have historically been committed by foreign companies.” It remains to be seen whether this directive will be applied in practice in a way that favors U.S. over non-U.S. companies in keeping with the Trump Administration’s broader America First agenda. Similarly, the Blanche Memorandum directs prosecutors to focus enforcement of the Foreign Extortion Prevention Act (FEPA) on “foreign officials’ demands for bribes” that harm U.S. entities or individuals. Again, this factor leaves several questions unanswered as to how the analysis of what misconduct impacts U.S. entities is carried out, as discussed further below. This ambiguity provides DOJ with significant leeway to implement the Memorandum’s guidance.
- National Security – whether the misconduct impacted U.S. companies’ ability to obtain key “minerals, deep-water ports,” or other “infrastructure or assets,” in recognition of the importance of certain resources to the U.S. defense and intelligence sectors.
- Serious Misconduct – whether the misconduct “bears strong indicia of corrupt intent tied to particular individuals,” such as substantial bribes, extensive measures to conceal bribes, fraudulent conduct related to bribery, or obstruction of justice. Expressly excluded from this focus are “routine business practices” and de minimis or low-dollar, generally accepted business courtesies. While the scope of this exclusion is not entirely clear, it may indicate DOJ does not intend to pursue FCPA cases that are based on systemic, low-value bribes—such as cases involving improper expenditures on gifts, travel, and entertainment, or cases that involve only internal controls or books and records violations.
None of these four factors is required, and the Blanche Memorandum recognizes that “myriad factors must be considered” in any prosecution. Additionally, footnote 2 suggests that prosecutors may be able to initiate an investigation with limited insight into the presence of any of these factors, given the likelihood that the investigation itself will be necessary to understand the facts at play. Taken together, the factors reflect an apparent enforcement focus on substantial bribery connected to large-scale criminal organizations or that otherwise undermines U.S. national interests.
As Galeotti explained in his remarks, the Blanche Memorandum also confirms a directive that misconduct “that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.” Although Galeotti stated that DOJ will help its foreign counterparts “vindicate their interests and pursue their mandates,” it is unclear whether DOJ will continue to pursue actions in parallel with foreign regulators as it often has in the past.
For corporations, this guidance also puts a clear onus on prosecutors to pursue corporate cases involving criminal misconduct attributable to individuals and disfavors charging a company with “nonspecific malfeasance.”
The Blanche Memorandum also imposes a new approval requirement. Before a Criminal Division prosecutor can open a new FCPA investigation or bring an FCPA enforcement action, the approval of the Assistant Attorney General (AAG) for the Criminal Division or a more senior DOJ official—all of whom are political appointees—is now required. At odds with AG Bondi’s prior memorandum suspending Justice Manual approval requirements for FCPA cases connected to cartels and TCOs, the new approval requirement takes the decision of whether to open a new FCPA investigation out of the hands of career DOJ prosecutors and places it in the hands of political appointees, limiting career prosecutors’ discretion in determining how to apply the law.
Other Remarks by Criminal Division Head Galeotti
After introducing the new FCPA guidance, Galeotti discussed the Criminal Division’s approach to white-collar crime generally and made clear that “[f]ighting white-collar and corporate crime is a critical component of the Criminal Division’s priorities.” His message notably tied “aggressive and robust” strategies for investigating and prosecuting white-collar and corporate crime with “[p]rotecting the American people.” Galeotti’s remarks further highlighted other developments in the DOJ Criminal Division’s approach to corporate enforcement, including three “key areas of change”:
- Declinations. DOJ intends to move from a presumption to a near guarantee of declination for companies that self-report, cooperate, and remediate. This policy is aimed at providing more transparency around the process of granting declinations and incentivizing disclosure to “hold the most culpable individuals accountable.” Although the framework retains an element of discretion for cases that present aggravating circumstances, Galeotti stated that a declination will only be inappropriate when “truly” aggravating factors—recently narrowed in the revised Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) to the nature and seriousness of the offense, egregiousness or pervasiveness of misconduct, severity of harm caused, or similar misconduct resulting in criminal adjudication or resolution within the last five years—”outweigh” the company’s voluntary disclosure. Although the factors listed in the revised CEP are narrower than the prior CEP, they leave DOJ with significant discretion to determine when the factors are satisfied. Therefore, it is not yet certain whether DOJ will in fact grant more declinations going forward.
- Monitorships. Galeotti explained that DOJ’s recently revised monitor policy clarifies when monitorships should be imposed and how monitorships should operate. The revised policy places emphasis on the need to balance the potential benefits of a compliance monitor with the expense of a monitorship for a company and the potential for interference with business operations. The policy provides considerations seeking to ensure that the scope and cost of a monitorship is proportionate to the severity of the misconduct, the company’s profits, and the company’s size and risk profile, among other considerations. Galeotti commented that in some resolutions, in place of monitors, the Criminal Division will work more closely with companies to ensure compliance, including by considering whether other measures (such as self-reporting or certifications) more efficiently achieve compliance. Galeotti expressed a belief that these “self-directed measures,” instead of monitorships, are often more efficient in helping companies achieve full compliance, “make lasting improvements,” and limit the waste of resources.
- Efficiency and Cooperation. Galeotti highlighted a major focus on reducing the time spent on investigations. He emphasized speed and efficiency, and stressed that the Criminal Division will move the matters it sees as meritorious “expeditiously.” But Galeotti also noted that companies can contribute to this efficiency by complying with requests for documents and witnesses quickly and comprehensively, and stated that arguments about the lack of efficiency and length of investigations will not work if they are caused by those being investigated. We expect there to be continued back-and-forth between companies and prosecutors on what is realistic in terms of collection and production of evidence and completion of an internal investigation, particularly when DOJ’s requests and expectations can be very broad. Additionally, Galeotti indicated that companies and their counsel should be “conscientious” about avoiding premature appeals of the decisions of the attorneys leading their investigation to supervisors and should be prepared to follow DOJ’s process, ironing out issues with line attorneys to the extent feasible. He stressed that “seeking premature relief, mischaracterizing prosecutorial conduct, or otherwise failing to be an honest broker” will be “counter-productive to [one’s] appeals.” This suggests that complaining too high up the chain too quickly could backfire.
Galeotti highlighted that in less than thirty days from issuing the white-collar enforcement plan (as we discussed in our recent alert), DOJ has received new voluntary self-disclosures and “robust tips” from whistleblowers. He previewed that further “significant announcements in key priority areas” are on their way in the coming weeks, “including corporate resolutions across the white-collar landscape.” This is a notable statement, given that the Criminal Division has yet to announce a corporate resolution in this Administration, and we anticipate it will shed light on what to expect from the Criminal Division in the Trump Administration going forward.
Observations and Questions
The new approaches highlighted in the Blanche Memorandum and Galeotti’s remarks raise several questions—some of which we raised previously:
- How will the Criminal Division’s emphasis on speed be accomplished amid the Administration’s restructuring and efficiency efforts? Public reporting indicates DOJ’s Fraud Section has seen recent staff reductions, raising questions about resourcing. A push to increase case turnover may lead to further strains on teams and resources.
- Will the DOJ no longer pursue cases based on collective knowledge theories? Both the Blanche Memorandum and Galeotti’s remarks leave little doubt that DOJ Criminal Division leadership seeks to focus on corporate misconduct tied to specific bad acts by culpable individuals, not generalized notions of “nonspecific malfeasance” or collective corporate knowledge. DOJ’s pursuit of such theories is not unique to FCPA enforcement, and it remains to be seen whether DOJ will disfavor the approach when investigating or prosecuting non-FCPA offenses. To the extent the Criminal Division has historically disfavored collective knowledge theories, Galeotti’s remarks provide strong support that this will continue. In instances where DOJ does not pursue fraud cases against public companies under collective knowledge theories, the SEC may still seek to use corporate negligence theories to address similar conduct by issuers under the broader authority and with the lower burden of proof under Section 17(a) of the Securities Act of 1933.
- How will the focus on TCOs affect FCPA enforcement? The Blanche Memorandum reiterates, and arguably expands, the directives and priorities in AG Bondi’s earlier memoranda prioritizing investigations and prosecutions of foreign bribery connected to cartels and TCOs. It is not entirely clear whether and how the Blanche Memorandum—which is addressed only to the Criminal Division and expressly does not apply to other TCO elimination efforts—will affect U.S. Attorneys’ Offices’ ability to bring FCPA cases that have a connection to cartels or TCOs without seeking prior authorization from the Criminal Division, as contemplated by AG Bondi’s Total Elimination of Cartels and TCOs memorandum. Still, the focus on cartels and TCOs may lead to increased enforcement in jurisdictions with significant cartel and TCO activity.
- How does the Blanche Memorandum relate to cases pursued under alternate legal theories? As we have previously observed, a significant portion of foreign corruption enforcement has historically been pursued under adjacent criminal laws, including money laundering, wire fraud, and securities fraud. These offenses are not expressly covered by the Blanche Memorandum, which is limited to the FCPA, and remain avenues to pursue corruption-related fact patterns. The SEC and other international enforcement authorities may also still pursue actions outside the scope of DOJ’s priorities.
- Will the SEC’s role in FCPA Enforcement be impacted? During a congressional hearing earlier this month, SEC Chair Paul Atkins was asked by Senator Coons whether the SEC was “directly affected” by the Trump Administration’s pause on FCPA enforcement. Chair Atkins explained that, to his understanding, the SEC was not affected by the executive order. Senator Coons requested a follow-up on the SEC’s anticipated enforcement trajectory. Whether and how the SEC’s FCPA enforcement priorities align with the DOJ Criminal Division’s, or cover other types of FCPA cases, remains an open question.
- What constitutes “key infrastructure or assets”? The Blanche Memorandum implicates defense, intelligence, and critical infrastructure as key national security sectors and provides critical minerals and deep-water ports as examples. Additionally, the Blanche Memorandum notes “key infrastructure or assets” as a significant factor for prosecutors to consider when assessing whether the alleged conduct implicates key national security sectors, but neither the Blanche Memorandum nor Galeotti in his speech define these terms. DOJ could potentially interpret these terms broadly to include critical infrastructure sectors—such as those identified by the Cybersecurity and Infrastructure Security Agency (CISA)—and the assets associated with them. CISA’s “Critical Infrastructure Sectors“ include: agriculture, communications, energy, financial services, healthcare, transportation, and several other sectors considered “vital to” the United States’s “security, national economic security, national public health or safety, or any combination thereof.”
- Where do routine business practices in other nations end and substantial bribe payments begin? Although misconduct at both ends of the spectrum from low-dollar business courtesies to massive, concealed, fraudulent bribe payments will be apparent, the middle ground between the two is vast. Although the new guidelines appear to provide more leeway for facilitating payments and other lower-value expenses, in practice, this change is likely too nuanced for companies to adjust their operations based on the Blanche Memorandum alone. Additionally, there is no equivalent exception in the law of other jurisdictions, such as the UK’s Bribery Act 2010.
- How will requiring that all FCPA investigations and enforcement actions be approved by the Criminal Division AAG impact enforcement? Previously, the Justice Manual required all FCPA investigations and prosecutions to be approved by the Criminal Division generally rather than the Criminal Division AAG specifically. In practice, those approvals were delegated to the Deputy Chief of the Fraud Section in charge of the FCPA Unit. By requiring approval from the AAG him- or herself, a political appointee will now decide how the FCPA is applied, instead of career prosecutors, and can therefore ensure that career prosecutors do not undermine the Administration’s priorities or guidance. There is also a practical risk that approvals will take longer to obtain. However, under the Blanche Memorandum, the FCPA Unit continues to maintain its authority to investigate and prosecute FCPA cases—subject to the continuing suspension of the Justice Manual’s approval provisions for a narrow set of cases following AG Bondi’s earlier memorandum, which allows U.S. Attorneys’ Offices to pursue FCPA cases with a connection to cartels and TCOs upon twenty-four hours’ advance notice to the FCPA Unit.
- How will the Criminal Division approach corporate resolutions? As noted above, Galeotti foreshadowed “corporate resolutions across the white-collar landscape” in the coming weeks. So far, the Criminal Division in this Administration has yet to announce a corporate resolution. How these coming corporate resolutions look will illuminate what we may expect from DOJ going forward, including, possibly, to what extent DOJ will prosecute U.S. companies.
We will continue monitoring these developments and reporting to our trusted friends and clients in the days, weeks, and months ahead.
Gibson Dunn’s White Collar Defense and Investigations Practice Group successfully defends corporations and senior corporate executives in a wide range of federal and state investigations and prosecutions, and conducts sensitive internal investigations for leading companies and their boards of directors in almost every business sector. The Group has members across the globe and in every domestic office of the Firm and draws on more than 125 attorneys with deep government experience, including more than 50 former federal and state prosecutors and officials, many of whom served at high levels within the Department of Justice and the Securities and Exchange Commission, as well as former non-U.S. enforcers.
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