This recent post highlighted the DOJ’s response in the Adani et al matter in which Judge Nicholas Garaufis (E.D.N.Y.) directed the DOJ “to advise the court of each reason for dismissing the Indictment with prejudice as against all Defendants and to provide the court with sufficient factual support for each basis.”

The DOJ responded with a 10 page letter from R. Trent McCotter (Principal Associate Deputy Attorney General).

The letter began with various reasons for why it was not proper for a Court to demand more detailed explanations for such a DOJ discretionary decision.

Among other things, McCotter stated:

“[W]hatever reason is given, defendants in other cases will start claiming—wrongly or rightly—that their case meets those same considerations, too, resulting in a wave of requests for dismissal in other cases, consuming significant Department resources.”

Sure enough.

Yesterday, Smartmatic filed a notice of supplemental authority in its pending motion to dismiss for selective / vindictive prosecution.

By way of background, in October 2025, Smartmatic was criminally charged with conspiracy to violate the FCPA’s anti-bribery provisions, money laundering conspiracy, and money laundering in connection with an alleged bribery scheme involving the former Chairman of the Commission on Elections of the Philippines. (See here for the prior post).

The allegations involved the same core conduct alleged in a 2024 FCPA enforcement action involving two company executives, among others.

The criminal indictment against Smartmatic was notable in that 2010 was the last time a business organization was criminally indicted for FCPA offenses (as opposed to a criminal information / complaint resolved through a plea agreement or deferred prosecution agreement; non-prosecution agreement; or declination with disgorgement).

In March 2026, Smartmatic moved to dismiss the indictment on the basis of “vindictive and selective prosecution” (see here and here) and that motion remains pending before Judge Kathleen Williams (S.D. Florida).

In its supplemental filing: Smartmatic stated, in pertinent part:

“This is a foreign case.” This was McCotter’s leading argument for dismissing Adani. And the Letter offers a more detailed roadmap to DOJ’s new approach to FCPA prosecutions. McCotter stated that the U.S. must not “pretend[] to be the world police” and must focus on “enforcement actions against conduct that directly undermines U.S. national interests,” principally “drug cartels and transnational criminal organizations, cases that safeguarded fair opportunities for U.S. companies, cases that advanced U.S. national security interests, and cases involving serious misconduct.” McCotter stated the Adani indictment “must be dismissed” for its failure to satisfy the Blanche Memorandum.

McCotter’s succinct statement of policy explains why DOJ seeks to dismiss Adani, but it fails to explain why DOJ continues to prosecute this case. This too is “a foreign case” with a paper-thin nexus to the U.S.; is unrelated to cartels or TCOs; affects no U.S. company; and poses no risk to national security interests. Why has DOJ selected SGO and its employees for prosecution, while giving similarly situated defendants elsewhere a pass?

The reason is clear: DOJ is pursuing these defendants because of who they are. Adani is yet another example of this Administration’s unconstitutionally selective approach to enforcing criminal law.”

In conclusion, the filing states:

“[T]he Court should examine the Letter and assess why DOJ—in light of McCotter’s representations to a federal court—is insistent that this case must proceed, even as DOJ declines to pursue FCPA charges (and even dismiss indicted cases) elsewhere.”