At the beginning of 2017, speculation about the impact that the nascent Trump administration would have on white-collar criminal enforcement was widespread. Queries focused on the Trump administration’s likely prosecution priorities, the impact of Trump appointees, and how Wall Street and corporate entities would be treated given Trump’s business background. With the resolution of many of the Obama-era cases, the white-collar enforcement agenda of the Trump administration likely will become more evident in the coming year. A number of practitioners already have commented that they perceive a marked slowdown in Justice Department investigations of corporate America. One explanation may be a potential recalibration of the Justice Department’s approach to the prosecution of business organizations, as alluded to in Attorney General Jeff Sessions’ remarks that good corporations should not be penalized for isolated employee wrongdoing. Other factors cited are an articulated shift in the federal government’s law enforcement priorities, and the loss of aggressive, seasoned prosecutors from the Justice Department.

The perception of a decline in the number of corporate investigations may or may not be borne out by statistics in the coming months and years. After one year in office, however, what is apparent is that the new administration is emphasizing individual rather than corporate liability in white-collar investigations and has shifted the focus of criminal law enforcement toward some non-white-collar priorities. The move away from corporate criminal liability has been manifest in policy decisions by the Justice Department, such as its November 2017 endorsement of a presumption that the government will decline to prosecute a company for FCPA misconduct if the entity disclosed misconduct and cooperated in a timely manner.

DOJ’s Approach to Corporate Fraud

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