DOJ’s Anticipated Guidance on Foreign Officials and Instrumentality

Last November, the Department of Justice stated that it would issue guidance this year regarding the Foreign Corrupt Practices Act (“FCPA”).  Since that time, a number of commentators have advocated for certain items to be included in the forthcoming guidance.  Most notably, some have insisted on a detailed explanation regarding the DOJ’s interpretation of the terms “foreign official” and “instrumentality” in the FCPA.  It is highly unlikely that the DOJ’s guidance will do anything of the sort.

Simply put, it is not in the DOJ’s interest to attempt to more precisely define the terms “foreign official” or “instrumentality” in the forthcoming guidance.  This is because there are an infinite number of business/government and corresponding official/employee variations that could, at any given time, exist in the political, governmental, and business environments across the globe. Any time the FCPA may be implicated, the Department needs to look at the specific circumstances of the case, including the individuals and entities involved, to determine whether in its judgment the FCPA has been violated.

Some guidance in interpreting these terms can already be found in the opinions issued by the Department and in its deferred prosecution, non-prosecution, and plea agreements.  The DOJ is likely to point to these for guidance. These agreements contain factual bases that, although often lacking in a great deal of detail, describe the recipients of the unlawful payments with sufficient detail to inform the reader of why the entity is an “instrumentality” and/or why the individual is a “foreign official” for purposes of the FCPA.

In short, there is no reason for the government to tie its own hands by attempting, in the abstract, to define these terms with any specificity. Indeed, the Department’s response to demands for greater clarity in defining “instrumentality” and “foreign official” is likely to be, to paraphrase Justice Potter Stewart:  We shall not today attempt further to define the kinds of entities and individuals to be embraced within those shorthand descriptions, and perhaps we could never succeed in intelligibly doing so.  But we know it when we see it.