A New Weapon for the US Department of Justice to Fight Foreign Corruption

In December 2023, President Biden signed into law the Foreign Extortion Prevention Act (“FEPA”), which makes it a federal crime for any foreign government official to “demand, seek, receive, accept or agree to receive or accept, directly or indirectly” a bribe from a US company or individual.  US prosecutors, who had been limited by the Foreign Corrupt Practices Act (“FCPA”) to prosecuting bribe payers, have been a handed a potent new law; one they can apply to bribe solicitors.

Until passage of this new law, the DOJ was largely forced to rely on anti- money laundering laws in order to pursue foreign officials receiving bribes.  The FEPA expands the domestic bribery statute, found at 18 U.S.C. § 201, by incorporating “foreign officials.”  This expansion, which aligns with the FCPA definition, includes individuals acting in both official and unofficial capacities for or on behalf of a government, agency, or instrumentality or a public international organization.  Notably, the FEPA’s coverage, which encompasses “senior foreign political figures,” such as senior officials of major foreign political parties, does not extend to candidates for foreign political office.  

The FEPA is a potentially powerful tool, as the FCPA, standing alone, did little to dissuade or punish foreign officials who sought or received bribes. In fact, foreign officials who demanded bribes were never criminally sanctioned by their home governments in 80% of the demand-side bribery cases studied in 2018 by the Organisation for Economic Co-operation and Development. 

While there will be challenges to prosecuting foreign officials, the FEPA offers promise that US prosecutors can wage the fight against foreign corruption by attacking the demand side.