How will the new Trump administration pursue corruption?

When business lawyer Alexandra Wrage was invited onto CNBC's Squawk Box in 2012 to make an on-air anti-corruption pitch, she was surprised. I remember laughing at that point and saying, “Well, have you found anyone who's going to make the argument for corruption?”

The one they recruited was the president of the Trump Organization, four years before he won the country's presidency for the first time. Donald Trump called the United States' Foreign Corrupt Practices Act, known as the FCPA, a horrible law.

Passed in 1977, the FCPA made it a crime for companies with ties to the United States to pay or even offer to pay bribes to government officials in other countries. This law was the first of its kind in the world and was a landmark. Most countries have followed suit by passing similar laws, although experts say many are not as aggressive in fighting corruption as the U.S. law.

Every other country in the world does it. Were not allowed to do so. “It puts us at a huge disadvantage,” Trump said in that 2012 CNBC appearance.

Trump then hung up and Wrage, founder of the anti-corruption organization TRACE International, responded to the host.

Well, the answer is certainly not to encourage a climate of anarchy. American businesses never benefit from anarchy.

When Trump entered the Oval Office in 2017, this memorable appearance resonated through the halls of the Department of Justice, which is responsible for enforcing the FCPA.

We all wondered what was going to happen? said Fry Wernick, supervisor of the Justice Department's FCPA unit at the time. As a result, he said, several corruption cases pending during the final months of the Obama administration were quickly settled before Trump took office.

A month into the first Trump administration, the president called on his new secretary of state, Rex Tillerson, and reportedly raised concerns about the FCPA, saying it was unfair that American businesses couldn't not pay bribes to conclude deals abroad.

News of this meeting spread quickly in Washington, and Wernick was pleased to learn that the Secretary of State had put the President in order. Tillerson, who had previously been CEO of ExxonMobil, explained that actually, no, the FCPA is not good law, Wernick said, recalling what he had heard about that private meeting. It's a law that helps level the playing field for American companies operating abroad. And you know, it can actually be a very useful tool.

The Trump administration's record on corruption prosecutions

Whether it was this discussion with Tillerson or other factors, the Trump years turned out to be probably the strongest four years of FCPA enforcement ever, according to Wernick. More and more resources ended up being allocated to the FCPA unit. Fears of leniency from the first Trump administration on corruption were exaggerated.

According to Wernick, the number of prosecutors in the DOJ's anti-corruption unit nearly doubled during Trump's first term, and the FBI's international corruption unit established offices across the country and at missions abroad. 'stranger.

But Drago Kos, former chairman of the Corruption Working Group at the Organization for Economic Cooperation and Development, said that while the first Trump administration met its international obligations to prosecute corruption, he fears that this time here, things are different.

I'm not so worried about cases in which the United States won't launch an investigation, Kos said, since allies could bring charges against corrupt companies under the U.N. Convention Against Corruption. Much worse are cases where the United States will open an investigation without having reasonable grounds, because it is pursuing other objectives.

Under the United Nations convention, each country's leaders have discretion over how to enforce anti-corruption laws, and Kos warned that this means the FCPA can be weaponized.

In Russia, for example, accusations of corruption have been used to target enemies of President Vladimir Putin. In 2003, Putin had Mikhail Khodorkovsky, then considered the country's richest man, arrested on fraud charges and sent to prison for a decade, a move widely seen as retaliation for his opposition to Putin. Several other opposition leaders have been jailed on corruption charges and last week one of Putin's top military officials, Major General Mirza Mirzaev, was arrested on corruption allegations, making him the sixth military leader accused of corruption this year.

When Russian anti-corruption activist Sergei Magnitsky was arrested for tax evasion and died in prison, his associate Bill Browder, chairman of Hermitage Capital, took action by passing a US law in his honor. In 2016, Congress passed the Global Magnitsky Human Rights Accountability Act, which allows the government to sanction foreigners for human rights violations, freeze their assets, and bar them from entering the United States.

When Trump first took office, just months after the passage of the Global Magnitsky Act, Browder worried that the new administration would not use this powerful new law. But he was pleasantly surprised.

One of the positive aspects of the previous Trump administration was that it was very neutral, Browder said. He had hired people who were all very honest and had the attitude to do what they thought was right.

Browder fears that without these advisers around him, Trump could take a different direction in his second term. I think they're going to be very political about it. They will choose their targets, he said.

What [Trump] What matters is protecting friends like Mohammed bin Salman from Magnitsky sanctions when Jamal Khashoggi was killed, Browder said, referring to the journalist's killing that led to calls for sanctions against the Saudi crown prince. The fear is that this measure will be applied inconsistently.

Wernick, the former DOJ prosecutor, says he sees this executive discretion as an opportunity. The world today is different from what it was before. I think there is an axis of antagonistic nations right now, he said, pointing to countries like China, Russia and Iran that exert their influence around the world.

All these countries I'm mentioning have huge corruption problems, Wernick said. The dictators and other leaders of these countries do not care about stealing from their own people. So, Wernick suggested, the United States could target its adversaries by accusing them of corruption, to supplement sanctions.

It was never envisioned that way, Wernick said, but there is an opportunity to thoughtfully use the FCPA in a way that could actually be a useful complement to foreign policy efforts. This is a sort of America First approach that I think the Trump administration might be quite receptive to.

Much will depend on who Trump puts in key leadership roles.

This week, the president-elect announced that Sen. Marco Rubio would be his choice for secretary of state. A co-sponsor of the Global Magnitsky Act, Rubio could be in a strong position to implement the law against corrupt foreign officials.

For attorney general, Trump chose Matt Gaetz. Trump announced his choice on the Truth Social network and said Gaetz would root out systemic corruption within the DOJ and return the department to its true crime-fighting mission.

Trump's transition team did not respond to questions about what types of crimes the new administration will pursue and whether corruption prosecutions will be a priority.

Personnel is policy, Wernick said. Who he has around him is going to matter.

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