U.S. rule package seeks to expand DOJ anti-corruption powers

Deputy Assistant Attorney General Kevin Driscoll of the DOJ’s Criminal Division announced the proposals as part of a Dec. 12 speech. He said the rules would “strengthen anti-corruption law enforcement authorities” to better support their roles in combating instances of cross-border corruption.

“We know that international cooperation is essential to the work we do to expose cross-border grand corruption and bring cases to recover corruption proceeds and bring corrupt actors to justice,” Driscoll said. “Our collective ability to hold corrupt actors responsible, taking the profit out of these crimes, and returning stolen assets depends on sincere and dedicated cooperation formally and informally at every level of law enforcement.”

The proposals seek to:

• Make foreign crime a predicate for money laundering, if the same conduct is already a domestic predicate for money laundering;
• Preserve proceeds of foreign kleptocracy in support of foreign investigations;
• Authorize the United States to use forfeited property to remediate the harms of kleptocracy, human rights violations and abuses, war crimes, and armed aggression;
• Clarify authority for seizure warrants for property located abroad in criminal cases;
• Add certain criminal offenses involving corruption, human rights violations and abuses, war crimes, sanctions and export control violations, and illicit foreign election contributions as “racketeering activities” under the Racketeer Influenced and Corrupt Organizations Act;
• Leverage foreign partners’ ability to recover proceeds of kleptocracy; and
• Add enablers of corruption as a category for visa ineligibility.

Several of the proposals are amendments to strengthen the language of legislation previously introduced for consideration by Congress in 2022.

“The fight against corruption is a top priority for the United States,” said Driscoll, who cited President Joe Biden’s 2021 strategy on countering corruption. “… Countering cross-border corruption is a key focus of dedicated prosecutors in the [DOJ’s] Criminal Division, including corruption specialists in the Money Laundering and Asset Recovery Section’s International Unit and the Fraud Section’s Foreign Corrupt Practices Act (FCPA) Unit.”

Driscoll highlighted the United States’s recent recovery of funds on behalf of Malaysia related to 1MDB, Honduras from a case involving the brother of the former director of the Honduran Institute for Social Security, and Nigeria in the form of kickbacks and misappropriated government funds laundered into the United States.

“It is only through our collective efforts that we can truly root out corruption worldwide, hold corrupt actors accountable, recover the proceeds of these schemes, and provide recovery for impacted victims and countries,” he said.

In addition to the DOJ’s efforts, Congress has taken action to crack down on cross-border corruption. As part of the most recent U.S. defense spending bill, lawmakers this month passed the Foreign Extortion Prevention Act (FEPA). The act aims to hold those seeking bribes from American individuals or companies accountable, rather than just disciplining the individual or company paying the bribe for violations of the FCPA.

“Current U.S. law makes it a crime for an American or American company to offer a bribe to a foreign official, yet does nothing to punish a foreign official who demands or accepts such a bribe,” said Scott Greytak, director of advocacy for anti-corruption organization Transparency International U.S., in a statement. “… FEPA would create a powerful new tool for fighting foreign corruption at its source and for protecting Americans and American businesses working abroad.”