Shifts in US corporate enforcement policy have not changed how the rest of the world perceives the country’s enforcement regime, a French lawyer has told a legal industry conference.
“I would say that the new US doctrine didn’t revise this global perception that the FCPA is just a tool to make sure that the US will lead the world,” said Paul Hastings partner Antonin Lévy at an American Bar Association white-collar crime conference in Geneva on 18 November.
The French lawyer said the Foreign Corrupt Practices Act has always been seen in France as “a form of imposing US politics on foreign companies”. He cited a French ministerial report from 2019 which argued that the US uses the rule of law as “a weapon of destruction in the economic war” against the rest of the world.
Lévy appeared as part of a panel discussing international cooperation on financial crime cases in the context of the US’s changing anti-corruption enforcement regime and the controversy around executive overreach during President Donald Trump’s second administration.
Also appearing on the panel was Bruce Swartz, a former US deputy assistant attorney general who oversaw the Department of Justice’s office of international affairs, which handles the agency’s cooperation with foreign prosecutors. Currently a senior advisor with the Center for International and Strategic Studies, Swartz resigned from his position at the DOJ in February after being reassigned shortly after Trump took office. Among other victories, Swartz played a crucial role in extraditing the notorious Mexican drug lord El Chapo Guzman.
Swartz told conference attendees in Switzerland that the new prosecutorial guidelines for the FCPA, unveiled in June after a four-month pause on enforcement, were “designed to be enforcement policy to ensure that American companies will not be focused, but rather the focus will be on those who might undercut American’s competition for strategic objectives, including strategic minerals.”
Extradition requests complicated by “questionable” US prosecutions
Swartz also explained how the US’s fractious domestic politics could impact the country’s efforts to extradite defendants in white-collar crime cases to stand trial in US courtrooms.
He said that certain actions by the second Trump administration have harmed “the presumption of regularity”, which is a US judicial doctrine that instructs courts to assume, barring evidence to the contrary, that government officials and agencies have “properly discharged their official duties”.
“We are in a different world,” he said.
Swartz cited a New York University study, published in September, cataloguing all of the cases in which judges have questioned the regularity of the government’s proceedings during the second Trump administration. The development gives foreign defence lawyers trying to block their clients’ extradition to the US the grounds to argue that “the prosecutions themselves are questionable and therefore the regularity should not be accorded to the extradition request itself,” he said.
But the former DOJ official also conceded that prosecutors could counter that “the fact that the [US] judges are questioning that means that the individual will get a fair trial in the United States.”
Countries face “quite a difficult conversation” around assisting the US
The question of political motivation also extends to the DOJ’s overseas requests for information sharing and mutual legal assistance, Swartz said. “There are a number of actions that have raised questions about what can or should be shared with respect to law enforcement information and intelligence information,” he said, citing the US’s targeting of alleged drug traffickers in the Caribbean Pacific as “the most prominent example”.
Panel moderator Nick Vamos, the Crown Prosecution Service’s former head of extradition, pointed to the UK’s Overseas Security and Justice Assistance Guidance, which requires the UK government to consider the security and human rights implications of any assistance it provides to other jurisdictions.
“When this policy was drafted, I do not think they had the United States in mind, but I can tell you now that it would engage that policy,” said Vamos, who is now at Peters & Peters, adding that if the UK rejected a request for mutual legal assistance from the US, it could lead to “quite a difficult conversation” with President Trump.
“I would suggest you have the King deliver that message,” joked Swartz.
“Exactly. We’ll have a tea party in Buckingham Palace,” Vamos replied.