Richard Bistrong: Are politics really part of FCPA enforcement and compliance?

Much has already been written about the November election and FCPA enforcement and compliance. My perspective comes from a five-year experience cooperating with the DOJ, and which spanned two administrations, including a complete change of leadership at the Justice Department after President Obama’s first electoral victory.

In January 2010 the DOJ arrested 22 individuals in the Africa Sting takedown. Some said it was an effort by President Obama’s Justice Department to go after the weapons business, particularly small firearms dealers.

Those were very political conclusions that failed to recognize one element: The seeds of the Sting were planted in the Bush Administration. That’s when I first started cooperating.

During the five years from 2007 to 2012, I worked with Justice Department personnel. Some joined the DOJ during the Bush Administration, and others during President Obama’s tenure. It would be impossible for me to differentiate the two groups. And my sentencing judge was appointed by President George W. Bush.

I never felt any political play in the decision making. Whatever one might think of the DOJ’s decisions and the outcomes, I saw no evidence they were shaped by politics. The decisions were all a part of what I considered to be the professional leadership of the DOJ and FBI.

Similarly, the eventual collapse of the Africa Sting prosecution in early 2012 wasn’t due to any political or partisan agendas. The change of administrations, from my view as a cooperator, was seamless.

While every new President brings changes in leadership at different levels across various governmental agencies, the DOJ included, how that plays out isn’t so simple. The way companies and individuals are investigated, charged or credited is entrusted to prosecutors and investigators who were hired and trained to make those decisions. And as to how final assessments are made, well, it might not be as much of a direct line from the White House to the Bond Building (where the Fraud Section is housed) as some people might think.

What about the current debate? How will the FCPA be impacted by the new administration? I think the hyper-transparent world Alison Taylor and James Cohen wrote about for the FCPA Blog is far more important to enforcement and compliance than the recent election.

Partly because of that hyper transparency, the idea that bribery and corruption harm and erode security, governance, commerce, and human rights is now spreading across the globe. And the companies and individuals behind the corruption are now more likely than ever to be exposed and punnished. No one can put that toothpaste back in the tube.

But here’s a final “author’s note” about this year’s Presidential election. I voted. That’s right, I had my voting rights restored. It took losing them after my FCPA conspiracy guilty plea to realize how much I appreciate the importance and value of civil liberties. That’s what I’ll remember most about November 2016.

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Richard Bistrong is a contributing editor of the FCPA Blog and CEO of Front-Line Anti-Bribery LLC. In 2010 he pleaded guilty to a conspiracy to violate the FCPA and served fourteen-and-a-half months at a U.S. federal prison camp. He now consults, writes and speaks about compliance issues. In 2015 he was named one of Ethisphere’s 100 Most Influential in Business Ethics. He can be contacted by email here and on twitter @richardbistrong.