The liberal establishment is up in arms over the shutdown of corporate enforcement under Donald Trump.
For example, last month, Public Citizen put out a press release titled –The Department of Justice Won’t Prosecute Corporate Bribery Schemes Overseas.
“American corporations that engage in criminal bribery schemes abroad will no longer be prosecuted,” said Public Citizen’s Rick Claypool. “That’s the bottom line of the new Trump policy on the Foreign Corrupt Practices Act. This gift from the Trump administration to corrupt multinational corporations would be an outrage at any time, but it is particularly heinous that these authoritarians are simultaneously legalizing corporate crime while cheering the use of unrestrained excessive force against immigrants and protestors in Los Angeles.”
Not so fast, says Mike Koehler, who runs the popular FCPA Professor website.
Koehler says that under the first Trump administration, FCPA enforcement was “above average” compared to other administrations. And he predicts it will be the same under the second Trump administration.
FCPA enforcement in the first Trump administration was “above average in any statistical category you would want to measure,” Koehler told Corporate Crime Reporter in an interview last week.
“Individual enforcement actions were above historical averages. Corporate settlements were at or near historical averages. Settlement amounts were up.”
“But again, many of these cases tend to last four or five and in some cases more years. Some cases just get into the pipeline and have to get out of the pipeline at some point.”
Do you expect the second Trump administration to mirror the first Trump administration? Or will the numbers be down?
“It might be down a little bit. But the big picture issue is what I’ve been struggling with over the years. The FCPA is 48 years old or so – soon to turn 50. If the FCPA is being successful, shouldn’t there be less enforcement over time rather than more?”
“I get it – academics like to measure things. When it comes to FCPA enforcement, some things can be measured. But there are a whole lot of other things that cannot be measured in any reliable way.”
As you know, the liberal establishment is concerned that Trump is putting the brakes on FCPA enforcement. In February, the White House put out a press release titled – Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security. If you ask the liberal groups to name the top two cases of Trump putting the brakes on enforcement, they would say – the Consumer Financial Protection Bureau and foreign bribery.
“I read a lot of media coverage of the so-called pause that was disciplined, context based and rational. And I read a lot that wasn’t. The pause lasted 118 days. During the so-called pause, various aspects of the FCPA and various laws continued to be enforced.”
“So many journalists nowadays don’t have the context, knowledge and experience to write about things that they are actually writing about.”
“In connection with the February pause, I spent many hours on the phone with various journalists. One journalist told me they had never heard of this law called the FCPA. And now they are being tasked with writing an article about it?”
That’s why they are calling you. But your line is – we don’t know. So, if the FCPA was passed to deter bribery, we don’t know if bribery is being deterred. Right now, bribery could be off the charts and we wouldn’t know it.
“That depends on what you mean by bribery. The goal posts are constantly moving. Can I prove that fewer companies are offering suitcases full of cash to Presidents and Prime Ministers to get business? I can’t prove that but I’m confident that kind of bribery has been deterred.”
“But when you have FCPA enforcement actions that use the b word – bribery – concerning charitable donations, concerning golf, concerning fancy meals, concerning internships and job opportunities, I can’t say with any degree of confidence that corporate America is spending less on corporate hospitality because a recipient of that hospitality might fit the definition of a foreign official.”
I’m not talking about marginal cases. On your website, you have listed the top ten corporate settlements under the FCPA. Of those top ten, I would guess none of them are marginal cases.
“Those are more egregious cases.”
Okay, so let’s focus on major corporate crime cases. Let’s not focus on – hey, I took out a public official on a golf outing.
“But if we are talking about a good number of these cases, we are talking about these – what you call marginal cases. We are talking about doctors and nurses and lab personnel being treated to a golf outing. We are talking about banks offering internships and job opportunities. In those two enforcement theories – I think I just included 36 enforcement cases.”
Okay, but let’s focus on major and not marginal cases. Is it your sense that major FCPA cases have been deterred over the years?
“I don’t think there is any way of knowing it. The top ten list includes six or seven foreign companies. Some of the conduct at issue took place years ago. In some of these top ten cases, we are talking about cases from 15 to 20 years ago. Would I like to think that Siemens today is different from Siemens in 2006? Yes I would like to think that. In a company the size of Siemens, are there always going to be issues percolating around the company from time to time? Probably. No law can eliminate human nature.”
Trump Two will reach the same level of Trump One over four years?
“I think it will be similar.”
The liberal establishment is saying this is a sea change, that in fact what we are going to see is cratering in corporate enforcement – not just FCPA, but corporate enforcement across the board. I’ve seen that in reporting on this for the first part of this year. Not just FCPA, but all SEC corporate cases, CFPB has been gutted – just across the board.
“But they were saying the same thing in 2016.”
But compared to Trump One, it seems down. Nothing coming out of CFPB. The agency has been decimated.
“I don’t know if I would put the CFPB in a white collar criminal enforcement category.”
It’s corporate enforcement. The major enforcement agencies are the Justice Department, the SEC, the CFPB and the FTC. In past days, the Environmental Protection Agency. It’s down across the board compared to Trump One. But you are saying – when it comes to FCPA, you anticipate about the same level of enforcement as under Trump One.
“Yes, that’s my guess.”
Why do you think that’s the case given the signaling coming out of the Trump administration?
“Because I’m an FCPA expert who has followed the flow of information on a daily basis for the last 15 to 20 years. And this is always said – every Department of Justice memo is a sea change. Every statement is a new framework. I’ve read it all. I’m well versed in the flow of information. I’m well versed in the outlandish predictions of some FCPA commentators. And then you see the reality on the ground.”
I have the story in my head based on this interview. Mike Koehler says Trump Two is going to be similar to Trump One when it comes to FCPA enforcement. Trump One was in the ballpark of other administrations.
“That is my prediction.”
When the administration paused FCPA enforcement – what did it pause? Was there any corporate enforcement during those 118 days?
“No.”
Has there been any corporate enforcement since?
“No. But the problem I have with journalists is that they don’t seek information. They just seek people to confirm their narrative.”
“During the pause, the Department of Justice closed some FCPA investigations without bringing enforcement actions. Guess what? That’s been happening forever.”
“Here’s another one. You probably are seeing some deferred prosecution agreements or monitors have been terminated early during the pause. What you are not seeing is that the Biden administration negotiated those resolutions and included in the resolution documents the actual clauses that allowed for the early termination.
Whose fault is that? That’s never mentioned.”
“So many things have been occurring in this space since February that have long occurred in this space. Now all of a sudden, it’s exclusively related to one issue when we know it’s not.”
“The Biden administration dropped an FCPA investigation against a major defense contractor last November.”
Which company was that?
“It was Leidos. No one else wrote about it. I wrote about it. In February 2022, Leidos disclosed it was under FCPA scrutiny. Then later the company disclosed that in December 2024, the company received notification from the Department of Justice that the investigation is closed.”
“In the minds of some people, the last three months are supposed to represent a monumental, game changing seismic shift because the Department of Justice has dropped an inquiry of an FCPA matter. No it’s not. It happens very frequently. Here is one example – Leidos – that is useful. It is a matter that was closed during the Biden administration. In the minds of some, these kinds of things under Biden simply were not happening. But it’s quite clear it happened and it’s no big deal.”
How many major corporate FCPA investigations were closed under Biden?
“I would have to go back and check, but many. And I’m not saying that this is a bad thing. Just because a company is under FCPA scrutiny does not mean that there has been a violation of law.”
“This happened so frequently over the last 15 years that I have an actual FCPA reform proposal tied to this very issue. If a company voluntarily discloses to the Department of Justice or the SEC and there is no enforcement action, the Justice Department and the SEC should explain why there is no enforcement action.”
“In the FCPA’s early days, Congress specifically asked about this issue. The Department had, over a two year period, closed over 85 investigations for any number of reasons.”
“There has been a lot of reporting that the Department used to have 35 prosecutors devoted to the FCPA and now they have 25. Do you know that 25 prosecutors is the second highest number of prosecutors in the 50 year history of the FCPA? Over the last couple of decades, there have been as few as two or three prosecutors. How is that some signal?”
Back to the closing of the Leidos case. The disclosure didn’t say what kind of declination it was. Could it have been a declination with disgorgement?
“If it was a declination with disgorgement, it would be the first that was not made public by the Department of Justice.”
“I don’t even call that a declination. There was no enforcement action. A declination with disgorgement is an FCPA settlement by another name.”
What’s the difference between a declination and a matter being closed?
“The Department has already said that declination is an instance where there are viable and provable FCPA charges, but for some reason, whether it’s the nature of the wrongdoing, the company’s cooperation or some other public policy consideration, these viable criminal charges are not being brought.”
“When a case is closed, there might not even have been viable criminal charges to even bring. Here’s an analogy I use for the declination concept. Let’s say law enforcement on a Friday night sets up a field sobriety checkpoint on a busy road. You were not drinking and you pass through the checkpoint without getting drunk driving charges. Did law enforcement decline to bring drunk driving charges against you? I would say – no, you weren’t drinking.”
“If you were drinking and you were over the limit, but for whatever reason, charges were not brought against you, then yes, that would be a declination.”
In major corporate crime cases, are there ever enforcement actions that are never made public?
“I’m not aware of any.”
A company enters into a non prosecution agreement and one condition of the agreement is that it won’t be made public. It doesn’t have to be approved by the court.
“I am not aware of an example. The Department would completely lose face. The FCPA enforcement program would not be transparent. They say all of these resolutions are in the public domain. The government has lied before. I’m not saying it would never happen again. But if it is happening, what trust would we put in the Department of Justice?”
[For the complete q/a format Interview with Mike Koehler, see 39 Corporate Crime Reporter 27(13), July 7, 2025, print edition only.]