A little less than a year ago, I was at a very nice party at the ABA White Collar Conference in San Diego with some friends talking about the election.

Maybe it was the margaritas, maybe it was my native pessimism, or maybe I’m merely a savant, but I predicted that Donald Trump would be elected.

Building on that, I then predicted that Trump would radically reshape white-collar prosecutions, and that the ABA White Collar Conference would dry up and blow away so that there would no longer be any margaritas at lavish parties for any of us.

To be clear, this was not a reasoned position. Trump was still locked in a serious primary fight. Other than being from Iowa and having some understanding of the kind of person who hates East Coast elites so much that he’ll set fire to a car he’s in if an elite is in there too, I didn’t believe what I was saying. It was the kind of thing one says at a certain point in the night to keep the conversation rolling.

I recall, too, specifically saying that Trump’s brand of America-first isolationism would mean he’d put a stop to FCPA work. Those millions of dollars of investigation work would slowly dwindle, I predicted, as the Orange One refocuses our government’s efforts away from what’s happening overseas and back on what’s happening in America.

I had really been enjoying those drinks.

Representing corporations under investigation for violations of the Foreign Corrupt Practices Act has been a huge moneymaker for U.S. law firms. Those investigations may be the single largest source of white-collar revenue for American firms.

Yet, there’s been reason to be skeptical of the value of FCPA enforcement for a while — it does seem odd to think that a U.S. company that does corrupt things in a foreign country should be punished here. If GE wants to bribe folks in Poland, why is that our problem and not Poland’s? Why should we care about corruption in Poland if Poland doesn’t? Indeed, if a Polish company can bribe but an American country can’t, doesn’t that put us at an unfair disadvantage? At the very least, why should U.S. taxpayers fund cleaning up Poland’s government?

This view was articulated in a paper put out by the New York Bar Association called “The FCPA and its Impact on International Business Transactions—Should Anything be Done to Minimize the Consequences of the U.S.’s Unique Position on Combating Offshore Corruption” in 2011. The paper concludes with this:

Our position is that (1) the competitive landscape of the 21st century global economy warrants the reevaluation of the United States’ strategy in fighting foreign corruption, (2) the current anti-bribery regime—which tends to place disproportionate burdens on U.S. regulated companies in international transactions and incentivizes other countries to take a “lighter touch” —is causing lasting harm to the competitiveness of U.S. regulated companies and the U.S. capital markets and (3) even putting aside the disproportionate costs borne by U.S. regulated companies, the continued unilateral and zealous enforcement of the FCPA by the United States may not be the most effective means to combat corruption globally—in fact, in some circumstances it may exacerbate the problem of overseas corruption.

The committee that issued that paper was chaired by Jay Clayton, the Sullivan & Cromwell partner who was just nominated to head the SEC by the President-Elect. The SEC is, of course, one of the two government actors that conducts FCPA investigations.

So, there’s pretty good reason to think that Clayton may not be the biggest friend to continued aggressive enforcement of the FCPA.

That said, the paper does say that “[t]he moral sense of the United States to ‘do the right thing’ is clearly and laudably a motivating factor.”

So maybe that’s the sentiment that will guide Clayton at the SEC?

Absent that, I fear the margarita train may be in danger.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com. He’d love to hear from you if you’re inclined to say something nice.

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