For decades, federal prosecutors have relied on elastic statutes to pursue novel schemes that Congress never spelled out. Proponents of this elasticity contend that policy-infused interpretations honor Congress’s larger purpose of policing sophisticated schemes, while textualists warn that such broad statutes erode fair notice, invite arbitrary enforcement, and transfer the power to define crime from Congress to prosecutors. The Roberts Court has absorbed those critiques: its brand of textualism treats expansive prosecutorial theories with increasing skepticism rather than as valuable tools, showing a broader judicial preference for textual restraint over interpretive flexibility. As a result, the Supreme Court’s pivot toward textualism has forced a fresh look at federal criminal law.

Nowhere is this pivot toward textualism shown more clearly than in the Court’s recent public corruption docket: McDonnell (2016), Kelly (2020), Ciminelli and Percoco (2023), and Snyder (2024). McDonnell confined “official acts” to concrete governmental decisions; Kelly refused to treat regulatory power as property; Ciminelli discarded the “right to control” doctrine; Percoco rejected amorphous honest-services duties for private citizens; and Snyder limited § 666 to bribes, not post-hoc gratuities. The throughline is clear: criminal liability must rest on precise statutory language, lest vague standards erode fair notice, due process, and the separation of powers by letting prosecutors, not Congress, define crime.

This textualist pivot is already spilling over and now reshaping white-collar enforcement. Prosecutors in complex financial and corporate cases have long relied on expansive interpretations of fraud, false statement, and bribery statutes to capture evolving schemes, the very elasticity the Court now views with skepticism. Lower courts, taking their cue from the public corruption precedents, are paring back those elastic theories. For example, judges in the “Varsity Blues” cases questioned whether admissions slots constitute “property,” and in Thompson v. United States, the Court curtailed fraud and false statement liability. These decisions limit the elasticity that prosecutors have traditionally relied on to police white collar crimes. Commentators have already flagged a rule of lenity emerging, warning that traditional white‑collar charges built “on open-ended, vague, and unclear” fraud statutes may soon be untenable. Accordingly, creative statutory stretching can no longer be assumed safe on appeal; courts are increasingly unwilling to tolerate liability untethered from the text Congress enacted, narrowing the reach of federal white collar enforcement.

The most vulnerable statute left standing in this shift is the Foreign Corrupt Practices Act (FCPA). Similar to the fraud provisions already under strain, the FCPA rests on inherently vague terms, and thus presents the next flashpoint for the Court’s textualist pivot. Should the Court restrict the elasticity of these provisions, as it has in analogous contexts, prosecutors would lose the interpretive latitude that has long sustained cross-border bribery cases, thereby narrowing the statute’s reach and weakening the extraterritorial influence of U.S. anti-corruption policy. The Court’s move toward textualism has implications beyond a mere correction to public corruption cases; it signals a broader adjustment to the architecture of federal white collar enforcement at the very frontier, transnational bribery, where regulatory vigilance is most critical.

The Foreign Corrupt Practices Act has long been considered a cornerstone of U.S. anti-bribery enforcement. The statute prohibits U.S. companies from corruptly offering, paying, or promising money or anything of value to a foreign official to influence that official to obtain or retain business. To establish a violation, prosecutors must show that a covered person (i) offered or gave anything of value, (ii) to a foreign official or third party, (iii) corruptly to influence an official act, secure an improper advantage, or induce the official to use his influence to obtain or retain business. Notably, the statute does not explicitly require a contemporaneous quid pro quo; it criminalizes payments intended to influence, not reward.

Initially, the FCPA appears distinct from the public corruption statutes the Court has recently narrowed, as it is aimed at corporate bribery. However, key terms in the statute’s anti-bribery provisions grant prosecutors sweeping discretion to pursue a wide range of conduct, often leaving business actors with little meaningful guidance as to what conduct crosses the legal line.  Key terms like “Foreign official” could refer to a doctor at a public hospital, a toll collector, or even a janitor at a state-owned utility. “Corruptly” and “thing of value” raise similar concerns—does a customary gift or event ticket suffice? The statute’s reference to an “improper advantage” is equally unclear: is faster customs clearance or a lower regulatory fee improper if widely practiced? Even the grease payment exception hinges on ambiguous language like “routine governmental action,” leaving businesses uncertain whether common facilitative payments to restore electricity quickly or speed up a visa constitute a legal grease payment or a bribe. 

The FCPA’s broad language lets prosecutors press liability theories that neither potential defendants nor Congress could have anticipated. The same flaws of vagueness and fair notice that affected the expansive theories in the public corruption cases permeate the FCPA’s anti-bribery provisions. Snyder is especially telling: by requiring a contemporaneous quid pro quo and denying liability for post-hoc actions under 18 U.S.C. § 666, the Court demonstrated a deep skepticism towards statutory theories based on inferred or delayed corrupt intent. This reasoning casts doubt on the FCPA, which criminalizes payments made with the purpose to “influence” foreign officials but makes no stated requirement that such payments be related to contemporaneous or particular official conduct. Many FCPA cases have involved generalized efforts to “influence,” such as funding travel, offering gifts, or making charitable donations, that fall well short of the quid pro quo requirement.

If the Court applies Snyder’s logic to the FCPA, it would likely narrow the statute to require explicit, synchronized quid pro quo exchanges between payment and official action, dramatically shrinking the universe of actionable conduct. This narrowing would not just change the DOJ’s enforcement approach; it would undermine the statutory flexibility that has underpinned decades of cross-border bribery cases, possibly placing numerous types of conduct beyond the reach of the FCPA, even when intended to win favor. The result would be a foundational shift in anti-bribery enforcement, undermining the deterrent reach of the United States’ most prominent transnational anti-corruption statute.

This growing doctrinal change in white collar cases, especially those involving the FCPA, poses a strategic dilemma for prosecutors: either limit themselves to cases that fit neatly within the Court’s increasingly rigid framework or risk having high-profile indictments unraveled on appeal, as they did in the public corruption cases. In the short term, this dilemma may have a chilling impact on enforcement, particularly in complicated white collar and international bribery cases where direct contemporaneous proof of a corrupt agreement is challenging to collect. The necessity for specific statutory hooks, quid pro quos, tangible property interests, or clearly established relationships places a substantial burden on investigative techniques and charging decisions. As a result, enforcement agencies may increasingly turn to alternative charges, such as accounting violations or conspiracy, or seek to settle rather than prosecute. Nonetheless, this strategic retreat, however prudent, cannot alleviate the underlying tension: as the Supreme Court continues to insist on textual clarity and constitutional restraint, the legal foundations of much of modern white collar enforcement, developed primarily through prosecutorial interpretation, are beginning to erode.

The Court’s recent textualist turn should not be mistaken for hostility toward anti-corruption or white collar enforcement. Instead, it maintains a constitutional baseline: statutes must speak clearly before liberty is limited, and prosecutorial charging determinations must be based on text. Reliance on vague or elastic wording violates both due process and separation of powers principles, yet prosecutors have routinely relied on such interpretations since Congress has not updated key statutes to reflect modern financial crimes. As the Court has established brighter constitutional lines, prosecutorial creativity should be limited; the responsibility must now turn to Congress to provide clearer, more current legislation. Without such action, the same vagueness and separation of powers concerns that dismantled expansive political corruption theories will, indeed should, limit aggressive white collar charging strategies, eroding the government’s capacity to police complex, transnational corruption and weakening enforcement regimes both domestically and internationally.

Yuvraj Tuli is a recent graduate of Cornell University, where he received his B.A. in Government. He was also a visiting student at the London School of Economics and Political Science. Mohamed Arafa is a Professor of Law at Alexandria University Faculty of Law, and an Adjunct Professor of Law and the Clarke Initiative Visiting Scholar at Cornell Law School.