Principal Deputy Assistant Attorney General David Burns highlighted aspects of the DOJ Counterintelligence and Export Control Section's ("CES's") new Export Controls and Sanctions Enforcement Policy for Business Organizations.
In his remarks, Mr. Burns explained that the new policy, which builds off CES's 2016 guidelines, is intended to provide, among other things, additional clarity regarding the benefits to corporations of voluntarily self-disclosing potential criminal conduct. In particular, the policy provides for a presumption of a non-prosecution agreement and the imposition of no fine when a company (1) voluntarily self-discloses export control or sanctions violations to CES, (2) fully cooperates with the DOJ, and (3) timely and appropriately remediates misconduct.
The new CES voluntary self-disclosure policy is only the latest in a series of DOJ policies aimed at incentivizing corporate cooperation with criminal investigations. The Department is clearly aiming for consistency across these policies, where possible. Principal Deputy Assistant Attorney General Burns specifically noted that the CES policy's definitions of "voluntariness," "full cooperation," and "timely and appropriate remediation" were conformed to the extent possible with language used in other Department policies, and in particular the Criminal Division's FCPA Corporate Enforcement Policy. Not surprisingly, however, differences remain. Perhaps most importantly, the CES policy - unlike the FCPA Corporate Enforcement Policy - offers no prospect of a declination. Instead, qualifying companies can at best expect a non-prosecution agreement. According to Burns, this reflects "the threats to national security posed by violations of our export control and sanctions laws."
Similarly, while both the CES and FCPA policies refer to "aggravating" factors or circumstances that may weigh in favor of criminal charges, the CES policy includes factors that are particular to its unique subject matter. For example, the policy notes that a "more stringent" resolution could be required in cases that involve the export "of items that are particularly sensitive [e.g., items controlled for nuclear nonproliferation or missile technology] or to end users that are of heightened concern." The development of a common lexicon and enforcement principles across the DOJ's divisions and sections is a worthy goal, but the breadth of conduct within the Department's purview ensures that corporate cooperation will never be one-size-fits-all.