CFIUS: TikTok saga is putting a new spotlight on one of the Trump administration's favorite trade war tools

This summer, when the Trump administration ordered the popular social media app TikTok to sell its U.S. operations, it marked a new escalation in the U.S.-China trade war. The clash also introduced much of the general public, including lip-synching teens and their parents, to a secretive body called CFIUS—the Committee on Foreign Investment in the United States—which can block or unwind foreign acquisitions of U.S. assets in the name of national security.

CFIUS (pronounced “SIFF-ee-us”) will have final sign-off on a proposed deal to deliver partial control over TikTok to a coalition of U.S. investors and companies, including Oracle and Walmart. Once an obscure nook in Washington’s regulatory labyrinth, CFIUS has grown dramatically in power and influence in recent years, as Congress beefed up its mandate as part of a technological arms race with China and other rivals. Its widening ambit could redefine the relationship between foreign companies and the U.S. government. But the TikTok saga, which could see a prominent supporter of President Trump obtain a big stake in the app, is also stoking a backlash among critics who see CFIUS as a powerful tool for crony capitalism.

CFIUS was established in 1975 by President Gerald Ford to safeguard strategic industries like oil and munitions from foreign control. For decades it was rarely invoked: Brian Fleming, a former national security lawyer for the Justice Department who is now an attorney at Miller & Chevalier, estimates that the Obama and Trump administrations blocked fewer than one deal a year between 2009 and 2017.

The pace accelerated, however, as the Trump administration adopted a more bellicose stance on China—and as lawmakers across the political spectrum grew more worried about data, patents, and tech expertise passing out of U.S. control. In 2018, CFIUS stopped China’s Ant Financial from buying money-transfer service MoneyGram and scuttled an effort by Singapore-based Broadcom to acquire chip giant Qualcomm. That same year, Congress passed the Foreign Investment Risk Review Modernization Act (FIRRMA). That law not only expanded CFIUS’s enforcement powers but also gave it a new mandate to protect U.S. consumer data—such as that collected by TikTok and its Chinese parent company, ByteDance.

The advent of FIRRMA has triggered a stampede of CFIUS actions. The review process is highly secretive, but according to the Washington Post, the panel has launched dozens of investigations this year alone, aimed primarily at companies that received investment from China or Russia. Some probes retroactively examine deals completed years ago: The TikTok investigation, for example, rose out of ByteDance’s 2017 purchase of a Los Angeles–based company called Musical.ly.

CFIUS is composed of the chiefs of nine federal agencies, headed by the secretary of the Treasury. It can intervene in any deal involving foreign investors in which there are national security concerns—a rationale that can extend to nearly any transaction, lawyers object. While social media platforms like TikTok and Tencent’s WeChat have been the most prominent recent targets, other industries are in the panel’s crosshairs. Nevena Simidjiyska, cochair of the international trade group at Fox Rothschild LLP, which has seen an uptick in CFIUS work, says the mobile game industry—which has many ties to China—is likely the next to face scrutiny.

For decades, CFIUS was rarely invoked. But a 2018 law has triggered a stampede of new investigations.

Simidjiyska and others argue that CFIUS review is highly vulnerable to political influence. Members of Congress who wish to flaunt nationalist credentials can lean on CFIUS to block a deal or unwind it retroactively. And U.S. companies have also urged lawmakers to demand CFIUS investigations into their corporate rivals.

In this new climate, lawyers say, companies are increasingly taking steps to avoid CFIUS scrutiny. Some might structure deals in such a way that foreign investors have only a passive role, with no board seats or executive presence; others might simply decline Chinese investment altogether. And in some cases, companies quietly pull the plug on a planned deal upon learning that CFIUS intends to make a negative recommendation to the President. While firms can turn to the courts if they view CFIUS’s actions as arbitrary or heavy-handed, this may be a long shot. Only one company has gone to court over a CFIUS order, and the case settled without a ruling on the underlying issues. And U.S. judges typically give the executive branch broad deference on matters of national security.

That deference, along with CFIUS’s growing scope, has amplified complaints that the process could be used for nakedly political ends. Many China hawks shared President Trump’s stated concerns about the influence of TikTok and WeChat. But his open advocacy of an ownership bid by Oracle—whose cochairman, Larry Ellison, hosted a top-dollar fundraiser for the President earlier this year—has raised hackles in Congress and C-suites alike.

“Have we broken the fourth wall when it comes to CFIUS, and entered a bold new world where the President can intervene and meddle in a way no one envisioned?” asks Fleming, the former Justice Department lawyer. “With this President, all bets are off.” It remains to be seen whether the TikTok affair is a one-off, and whether the enmeshing of geopolitics and business would continue under a different President, of either party.