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OFAC Asks Non-U.S. Persons to Advance U.S. Foreign Policy
In recent years, U.S. prosecutors and regulators have shown increasing interest in prosecuting people and entities with little or no connection to the United States. This trend has been especially pronounced in the context of the Foreign Corrupt Practices Act (FCPA). See, Harry Sandick & Devon Hercher, "New FCPA Decision Limits DOJ's International Reach," Business Crimes Bulletin (May 2020) (stating that a majority of firms charged with FCPA violations are non-U.S. firms). This trend extends beyond the FCPA to the prosecution of white-collar crime more generally. See, Harry Sandick & Jeff Kinkle, "The Global Reach of U.S. Law Enforcement," N.Y. Law Journal (Dec. 10, 2018).
Of late, we have seen this "mission creep" carry over into the arena of trade sanctions, which are enforced by the Treasury Department's Office of Foreign Assets Control (OFAC). According to OFAC, these programs are meant to advance "U.S. foreign policy and national security goals." One might find it surprising that OFAC regards it as the responsibility of individuals outside of the United States to work to advance the nation's foreign policy and national security goals. And yet that seems to be the case. Indeed, 23 of the 67 settlements and enforcement actions OFAC has brought since May of 2017 — more than one-third of OFAC's announced cases — have targeted non-U.S. companies.
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