Last month, I was contacted by National Public Radio. The reporter indicated that NPR was going to do a Planet Money episode on President Trump and the FCPA.
I spoke with the reporter for approximately 30 minutes, provided various factual information, and provided context about the FCPA and FCPA enforcement through the decades.
After the call, I provided various information demonstrating how various issues in President Trump’s February 9th Executive Order “pausing” FCPA enforcement have been festering for many years and discussed by numerous individuals.
I provided various factual information demonstrating that even during the “pause” various aspects of FCPA enforcement continued.
I did not get the sense that NPR was really interested in this information because it seemed like they already had a narrative for the story and were just seeking individuals to confirm the narrative.
Often times, this is what “journalism” has become.
Recently, NPR published the program (see here).
It contains several false statements and omits several relevant details.
First, the false statements.
The Trump administration did not “change the [FCPA] rules” or “defang” the FCPA.
Absolutely nothing has happened to the FCPA statute in recent months.
Even though NPR claims that its reporting was “fact checked,” it asserts that “the US government didn’t really enforce the law all that often. There were only eight cases in the first decade after the law was enacted.”
Spending just a few minutes on the SEC and DOJ’s FCPA websites will show many more FCPA enforcement actions between 1977-1987.
The story mentions national security without mentioning that the FCPA statute itself has a national security clause and also without mentioning that some FCPA investigations or enforcement actions over time have been impacted by national security concerns.
The story mentions that recently the DOJ has closed some FCPA investigations without mentioning that the DOJ has a long history of closing FCPA investigations without bringing an enforcement action.
The story mentions the early termination of Glencore’s monitor without mentioning that the monitor clause in the resolution documents drafted by the Biden DOJ provided the following reasoning and termination clause:
“because certain of the defendant’s compliance enhancements are new and have not been fully implemented or tested to demonstrate that they would prevent and detect similar misconduct in the future, the imposition of a Monitor is necessary to reduce the risk of recurrence of misconduct;”
“In the event the Offices find, in their sole discretion, that there exists a change in circumstances sufficient to eliminate the need for the monitorship …the monitorship may be terminated early.”
