Things have been relatively quiet on the anti-corruption enforcement front, at least when it comes to the DOJ, but the Department’s priorities are slowly coming into focus. In a recent keynote speech at the GIR Connect: New York conference, Principal Associate Deputy Attorney General John Carlin finally gave some insights on enforcement initiatives that the DOJ was “previewing really for the first time.”
Carlin related that “there is a firm belief from the current leadership that prosecution is not success.” Rather, “success is preventing the crime from occurring in the first place,” which can be achieved through deterrence but also through communicating expectations clearly, “so there are effective compliance programs in corporations and that the behavior changes.” To that end, he said the DOJ will “carefully evaluate our existing policies and guidance regarding the prosecution of business organizations to ensure consistency with the administration’s policy views and priorities.”
The previous administration was not shy about communicating its expectations to corporations, with a focus on building the business industry’s trust, as explained by then Assistant Attorney General Brian Benczkowski in 2019. Transparency in terms of how the DOJ will prosecute and evaluate compliance programs was a cornerstone of that trust exercise, but many of the previous administration’s policies had their roots in the Obama administration. For example, the FCPA Corporate Enforcement Policy (CEP) was an outgrowth of the Pilot Program, announced in April 2016. And the Evaluation of Corporate Compliance Programs (ECCP) grew out of Hui Chen’s work as DOJ Compliance Counsel.
This administration’s “policy views and priorities” seem to be very focused on national security. Just last week, the Justice Department’s Anticorruption Task Force announced new measures to combat corruption in Central America because “corruption and impunity in the region undermine democracy, fuel irregular migration, and pose a threat to our national security because they sustain criminal organizations and transnational crime,” according to Assistant Attorney General Kenneth A. Polite Jr. of the Justice Department’s Criminal Division. Other priorities, according to Carlin’s speech, include sanctions, export controls and cryptocurrency, all with a similar focus on promoting national security.
I am curious to see what changes to DOJ enforcement policies and guidance like the ECCP and the CEP will result from this heavy focus on national security. If you have thoughts or insights, I would love to hear them. You can drop me a line here or reach me on LinkedIn.