Trump’s return to power: What it means for the foreign corrupt practices act and Gautam Adani

The Foreign Corrupt Practices Act (FCPA), a cornerstone of the United States’ fight against international corruption, may see a seismic shift in enforcement and focus if Donald Trump returns to the Oval Office. This landmark legislation, passed in 1977, prohibits U.S-connected entities from offering bribes to foreign officials. Yet, Trump’s complicated history with the FCPA raises questions about how aggressively it might be enforced in his administration, particularly in light of high-profile cases like the indictment of Gautam Adani, one of India’s wealthiest tycoons.

The FCPA Under Trump: Past and Future

When Trump first took office in 2017, skeptics feared he would soften FCPA enforcement. In a 2012 CNBC appearance, Trump famously called the FCPA a “horrible law,” lamenting that it placed U.S. companies at a “huge disadvantage” globally. However, his administration surprised many by ramping up anti-corruption efforts.

The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) aggressively pursued FCPA violations during Trump’s first term, bolstering resources for investigations and doubling the number of prosecutors in the anti-corruption unit. High-profile cases during that time demonstrated that fears of lax enforcement were largely unfounded.

Now, Trump’s return introduces fresh uncertainty. While his past administration adhered to international anti-corruption obligations, experts like Drago Kos, former chair of the OECD’s Working Group on Bribery, caution that this time could be different. Kos warns the FCPA could be “weaponised,” potentially used selectively to target adversaries or to achieve political ends.

The Adani Case: A Test of U.S. Anti-Corruption Resolve

The indictment of Gautam Adani by a U.S. federal court comes at a critical juncture. Arrest warrants were issued for Adani and his nephew, Sagar Adani, after a New York grand jury charged them with bribing Indian officials to secure lucrative solar energy contracts. The indictment alleges $265 million in bribes, which the DOJ claims were used to manipulate markets and defraud U.S. investors.

Lisa H. Miller, Deputy Assistant Attorney General for the DOJ’s Criminal Division, described the case as emblematic of the FCPA’s mission to root out corruption that distorts global markets and harms American stakeholders. For the Adani Group, which has dismissed the allegations as “baseless,” the case poses a direct challenge to its reputation and global operations.

With Trump’s potential return to power, the handling of this case could set the tone for how his administration addresses global corruption. If the FCPA is enforced selectively or strategically, as some fear, it might not bode well for cases involving politically sensitive actors or nations.

A Global Anti-Corruption Framework

The Adani case underscores the interconnected nature of anti-corruption enforcement. While the FCPA remains a key tool, other nations, including the UK, France, and Brazil, have introduced their own robust anti-bribery laws. The DOJ has increasingly collaborated with international counterparts to pursue cross-border corruption cases, ensuring that U.S. enforcement aligns with global standards.

Even as Trump criticised the FCPA for putting U.S. companies at a disadvantage, proponents argue that it levels the playing field by deterring corrupt practices. This perspective was echoed by Trump’s former Secretary of State Rex Tillerson, who reportedly convinced the then-president of the law’s value.

Implications for Adani and Beyond

For Gautam Adani, the stakes are higher than ever. A Trump administration that aggressively enforces the FCPA could result in severe penalties for the Adani Group and its executives if the charges are upheld. Conversely, a more lenient or strategically driven approach could allow the case to falter, potentially emboldening other global actors to engage in corrupt practices without fear of repercussions.

The outcome of this case will also have wider ramifications for India-U.S. relations. Adani’s close ties to Indian political elites, including allegations of favoritism in government contracts, could complicate diplomatic dynamics.

What Lies Ahead?

As Trump positions himself for a second term, businesses, regulators, and legal experts are bracing for the implications of his leadership on the FCPA. Will his administration continue the robust enforcement seen during his first term, or will it pivot towards selective application? For Gautam Adani and others facing FCPA scrutiny, the stakes could not be higher.

In the end, the global business community must remain vigilant. Regardless of political shifts, adherence to anti-corruption frameworks like the FCPA is not just a legal requirement but also a moral imperative to ensure fair competition and sustainable economic growth.