Application of 18 U.S.C. § 207(c) to Proposed Communications Between Retired Navy Flag Officer and Marine Corps Commanders in Iraq Regarding Security Issues

Application of 18 U.S.C. § 207(c) to Proposed
Communications Between Retired Navy Flag
Officer and Marine Corps Commanders in
Iraq Regarding Security Issues
Although more detailed information is needed to make a complete determination in this fact-
sensitive area, it appears that 18 U.S.C. § 207(c) would forbid at least some of the proposed
communications between a retired Navy flag officer and Marine Corps commanders regarding the
security situation in Iraq.

September 13, 2005

MEMORANDUM OPINION FOR THE GENERAL COUNSEL OF THE NAVY

Through the General Counsel of the Department of Defense, you have asked
for our opinion whether 18 U.S.C. § 207(c) (2000) prohibits certain proposed
communications between a retired Navy flag officer, now employed by a
defense contractor under contract to provide services to the United States Air
Force and Army Corps of Engineers in Iraq, and United States Marine Corps
commanders. See Letter for Steven G. Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel, from William J. Haynes II, General Counsel,
Department of Defense (Aug. 17, 2005). These communications “would seek to
effect changes . . . in the current state of security” in parts of Iraq and to “make
recommendations” about procedures for pursuing the insurgents responsible for
attacks on United States military personnel and private contractors. Memoran-
dum for the Assistant Attorney General, Office of Legal Counsel, from Alberto
J. Mora, General Counsel of the Navy, Re: Request for Legal Opinion at 1 (Aug.
10, 2005) (“Mora Memorandum”). Although more detailed information is
needed to make a complete determination in this fact-sensitive area, it appears
that at least some of the proposed communications would be forbidden by
section 207(c).

I.

A rear admiral retired from the Navy and became employed as the President of
a company (“Company”) whose parent entity (“Parent”) is currently under contract
with the United States Air Force and United States Army Corps of Engineers to
provide construction and other services in Iraq. * As President of the Company, the
retired officer oversees construction of two bases that the firm is building for the
new Iraqi army in an area of the country under the responsibility of the United
States Multi-National Force-West (“MNF-W”). The MNF-W command, com-

*
Editor’s Note: For privacy reasons, the name and affiliation of the officer in question have been
redacted from the published version of this opinion.

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posed primarily of Marine Corps personnel, reports directly to CENTCOM, which
in turns reports to the Secretary of Defense.
In recent months, attacks by Iraqi insurgents have killed or injured a number of
the Company’s employees and subcontractors. Given the security situation, the
Company seeks to coordinate more effectively with the MNF-W commanders
responsible for securing the area in which the Company is working to fulfill its
contractual obligations. Given the retired officer’s military experience, the Parent
would like him to communicate directly with MNF-W personnel on these matters.
More specifically,

the Parent wants the retired officer to provide information related to
his observations about security and defense, areas within the retired
officer’s expertise. The Parent desires for the retired officer to ask
questions and seek information related to how the Parent’s employ-
ees can better protect themselves, including communications regard-
ing the Parent’s scope of work and its coordination of on-site activi-
ty.

Letter for Marilyn L. Glynn, Acting Director, Office of Government Ethics, from
Michael R. Rizzo, McKenna, Long & Aldridge LLP, Re: Request for Formal
Advisory Opinion Pursuant to 5 CFR 2638.301 et seq. at 3 (May 31, 2005)
(“Rizzo Letter”). The Parent believes that effective communications on these
issues between the retired officer and Marine Corps personnel is necessary to
ensure the security of the Company’s employees and will potentially save lives. Id.

II.

Section 207(c) of title 18 provides criminal penalties for a “senior [officer] of
the executive branch” who

within 1 year after the termination of his or her service or employ-
ment as such officer or employee, knowingly makes, with the intent
to influence, any communication to or appearance before any officer
or employee of the department or agency in which such person
served within 1 year before such termination, on behalf of any other
person (except the United States), in connection with any matter on
which such person seeks official action by any officer or employee
of such department or agency.

18 U.S.C. § 207(c)(1). Thus, as a recently retired senior naval officer, 1 the retired
officer is barred from making certain types of communications with “any officer

1
There is no dispute that flag officers such as the retired officer qualify as “senior personnel”
within the meaning of section 207(c). See 18 U.S.C. § 207(c)(2)(iv).

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or employee” of the Department of the Navy during the statute’s one year “cooling
off” period. Cf. 5 C.F.R. § 2641, app. B (2005) (designating the Department of the
Navy as “distinct and separate” from other components of the Department of
Defense for purposes of section 207). And because the Marine Corps is part of the
Department of the Navy, see 32 C.F.R. § 700.204(a) (2004), the prohibition
extends to communications between the retired officer and Marine Corps person-
nel in Iraq.
At the same time, however, “[s]ection 207 does not by its terms forbid a former
Executive Branch official from communication with his former agency in all
circumstances.” Memorandum for Stuart M. Gerson, Assistant Attorney General,
Civil Division, from Daniel L. Koffsky, Acting Assistant Attorney General, Office
of Legal Counsel at 2 (Mar. 15, 1993) (“Gerson Memorandum”). Instead, a
communication is prohibited only if it is made (1) “with the intent to influence”;
(2) “on behalf of any other person (except the United States)”; and (3) “in
connection with any matter on which such person seeks official action.” In
addition, the statute offers a safe harbor to former senior officials who make or
provide a statement “which is based on the individual’s own special knowledge in
the particular area that is the subject of the statement, if no compensation is
thereby received.” 18 U.S.C. § 207(j)(4) (emphasis added). Based on the limited
factual information available to us, we believe that most of the communications
proposed by the retired officer fall within section 207(c)’s prohibition and are not
protected by the “special knowledge” exception. That conclusion, however, does
not apply to situations in which the retired officer would do nothing more than
request generally available factual information from MNF-W relating to security
or other matters relevant to the Company’s work.
In the first place, the role contemplated for Mr. Kubic is not that of a behind-
the-scenes operative, but rather is a direct and personal one in which Mr. Kubic
would be speaking to the Marine Corps officers with the intention that the
information or views conveyed be attributed to him. Accordingly, Mr. Kubic
would undoubtedly be making “communications” within the meaning of section
207(c). See “Communications” Under 18 U.S.C. § 207, 25 Op. O.L.C. 59, 62
(2001) (construing section 207(c) to include an attribution requirement).
Moreover, as we understand the retired officer’s proposal, the purpose of at
least some of those communications would be to persuade the commanders in
MNF-W to use their forces in ways that the retired officer believes will provide
better protection for both civilian contractors (including the Company’s employ-
ees) and military personnel. (We take it that this understanding is what the Rizzo
Letter means when it refers to “discussions regarding scope of work and coordina-
tion of on-site activity issues.” Rizzo Letter at 2. 2) Insofar as he seeks to engage in

2
In your memorandum requesting a legal opinion, you describe the retired officer’s proposal this
way: “Through personal communication with local Marine commanders, if authorized, he would seek
to effect changes in Marine Corps policy or practice regarding the current state of security around

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such communications, the retired officer would clearly be “trying to influence the
activities of the agency involved,” and thus would satisfy the scienter and “official
action” requirements of section 207(c). Applicability of 18 U.S.C. § 207(c) to the
Briefing and Arguing of Cases in Which the Department of Justice Represents a
Party, 17 Op. O.L.C. 37, 43 (1993); see also 5 C.F.R. § 2637.204(e) (2005)
(section 207(c)’s prohibition on attempting to influence “applies to situations in
which there is an appreciable element of actual or potential dispute or an applica-
tion or submission to obtain Government rulings, benefits or approvals”). 3 After
all, decisions about how to deploy troops, and about how best to provide protec-
tion to military and civilian personnel in a war zone, are “official actions” of a
branch of the Armed Forces. Direct communications with members of that branch
by a former senior officer made with the goal of influencing those decisions come
within the scope of section 207(c).
A different result follows, however, where the retired officer would merely be
requesting generally available factual information from MNF-W commanders.
OGE has long taken the position, and we have agreed, that a communication
aimed solely at eliciting generally available information from a government
agency is not made with the requisite “intent to influence” official agency action,
and thus is not prohibited by section 207(c). See 5 C.F.R. § 2637.204(e); Memo-
randum for Component Heads, from Timothy E. Flanigan, Assistant Attorney
General, Office of Legal Counsel at 8 (Nov. 18, 1992) (noting that section 207(c)
“does not apply to requests for factual information”); Memorandum for Tony
Schall, Assistant to the Attorney General, from Timothy Flanigan, Principal
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Post Employ-
ment Restrictions at 1 (Aug. 15, 1991) (“Schall Memorandum”) (same). The
retired officer thus remains free under section 207(c) to seek information or advice
from the Marines regarding such matters as the security situation or the steps being
taken by the military (or that the Company should take) to protect civilian
contractors in Iraq. Although the sparse factual record before us makes it impossi-
ble to determine the extent to which the retired officer’s proposed communications
would actually fall into this category, it seems that at least some may do so. See,
e.g., Rizzo Letter at 3 (“the Parent desires for the retired officer to ask questions
and seek information related to how the Parent’s employees can better protect
themselves.”). We caution the retired officer, however, that especially where he
contemplates communicating with Marine Corps officers himself, the line between

Camp India and make recommendations about procedures for pursuing the AIF [Anti-Iraqi Forces]
responsible for the mortar attacks.” Mora Memorandum at 1.
3
The Office of Government Ethics (“OGE”) regulations contained in 5 C.F.R. pt. 2637 were
written with respect to section 207 as it existed prior to its amendment in 1989, but both OGE and this
Office have continued to rely on them when interpreting those portions of the statute that were
unchanged by the amendments. See “Communications” Under 18 U.S.C. § 207, 25 Op. O.L.C. at 60
n.3.

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seeking information and providing advice or otherwise attempting to influence
decisions or actions may not always be clear, and that it is impermissible to use
factual inquiries in an effort to influence the agency to take particular official acts.
See Schall Memorandum at 2.
Next, we must consider whether the proposed communications—at least the
ones that are intended to influence—will be made “on behalf of” someone other
than the retired officer (or the United States). “By the express terms of the statute,
a former officer or employee is free to communicate information or advice . . . as
long as he does not do so ‘on behalf of any other person.’” Gerson Memorandum
at 2. We have previously opined that this language limits the reach of section 207
to those “communications that are made by one who is acting as an agent or
attorney, or in some other representational capacity for another.” Memorandum for
Michael Boudin, Deputy Assistant Attorney General, Antitrust Division, from
J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, Re:
Application of 18 U.S.C. § 207(a) to Pardon Recommendation Made by Former
Prosecutor at 6 (Oct. 17, 1990) (“Boudin Opinion”). 4 The “representational
relationship” required by the statute “entails at least some degree of control by the
principal over the agent who acts on his or her behalf.” Id.
Here, because it seems that the retired officer would be speaking not on his own
behalf, but rather at the behest and for the benefit of the Company, the statements
he proposes to make would clearly satisfy this test. As we understand the situation,
the retired officer’s communications with MNF-W would be made in his capacity
as President of ECCI and would be designed to help improve security in the parts
of Iraq where the Company’s personnel are working. In that context, it is difficult
to deny that the retired officer would be acting “subject to the control or direction”
of the firm, and thereby as the firm’s agent or representative. Boudin Opinion at 6.
Simply put, in this situation the retired officer would not “speak[] for himself
alone.” Gerson Memorandum at 3. Instead, he would speak for the Company and
his efforts to use direct communications with his former department to influence
agency action would fall squarely within the prohibitory terms of section 207(c).
Finally, we address the “special knowledge” safe harbor contained in section
207(j)(4). That exception allows a former official to make statements based on the
individual’s “own special knowledge,” but only if “no compensation is thereby
received.” Even assuming that the security issues that would be the subject of the
retired officer’s statements would come within his own special knowledge, we
agree with OGE that “the receipt of a salary, or other compensation for doing
one’s job generally, is sufficient, if the statement at issue is made as part of the

4
Although the Boudin Opinion addressed only 18 U.S.C. § 207(a), the language it construed—“on
behalf of any other person”—also appears in section 207(c), where it is used in the same way. Relying
on the interpretive canon that a phrase that appears in multiple places in the same statute should be
given the same meaning in each, we have previously applied the Boudin Opinion’s analysis to section
207(c). See Gerson Memorandum at 3 & n.3.

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individual’s duties for his non-federal employer.” Letter for Michael R. Rizzo,
McKenna, Long & Aldridge LLP, from Marilyn L. Glynn, Acting Director, Office
of Government Ethics at 5 (June 8, 2005). We think the best reading of the phrase
“no compensation is thereby received” is that it excludes statements made in the
ordinary course of an agency relationship for which the speaker receives compen-
sation. In other words, if a former official is paid to represent the interests of a
particular person or company, and makes statements aimed at advancing that end,
he receives compensation “thereby,” even if he is not paid on a statement-by-
statement basis. Thus, as a salaried employee of the Company who would be
communicating with the Marine commanders in the course of his employment, the
retired officer may not take shelter in section 207(j)(4). A contrary conclusion—
that a statement may be protected by section 207(j)(4) so long as the speaker is not
paid specifically for making it—would impermissibly convert the exception into a
mere accounting rule. It would suggest, for instance, that a lawyer could represent
a client before the same agency where the lawyer was previously a senior official
so long as he received a flat fee rather than an hourly rate. We do not think
Congress intended to allow the statutory ban on such communications to be
capable of evasion merely by clever bookkeeping.
We certainly understand, and are sympathetic to, the retired officer’s pleas that
he and his firm face a conflict between the federal ethics laws and the need to take
steps to protect his employees from further danger. As described above, however,
at least some of the communications proposed by Mr. Kubic would be covered by
the language of section 207(c). And, although it contains a number of express
exceptions for particular types of communications, see, e.g., 18 U.S.C. § 207(j),
the statute makes no exception for emergency situations. Nor is there an exception
for communications made in war zones involving issues of safety and security.
Given that Congress has not seen fit to legislate such exceptions, we are not at
liberty to interpret such provisions into existence merely to bring about a desirable
result.
This conclusion about the scope of section 207 does not leave the Company
unable to communicate with military personnel in Iraq in order to help protect its
personnel. Any Company employee not covered by section 207(c) remains free to
discuss security matters (or any other issue) with MNF-W, and certainly may seek
to persuade the military commanders to take whatever protective actions are
thought necessary. Indeed, so long as he does not act with the intention that the
views or information conveyed to Marine officers be attributed to him, the retired
officer may play a “behind the scenes” role in such communications. “Communi-
cations” Under 18 U.S.C. § 207, 25 Op. O.L.C. at 63 (observing that under section
207(c), “former officials can sell their expertise to interested clients, and their
clients can present all substantive information or views they wish to federal
agencies”). In addition, as described above, the retired officer himself may seek
generally available factual information from any military officer or department.
And, because the Navy is separate from the Department of Defense for purpose of

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the federal ethics laws, see 5 C.F.R. § 2641, app. B, the retired officer may always
contact and attempt to influence officers and employees of military departments
other than the Department of the Navy.

STEVEN G. BRADBURY
Acting Assistant Attorney General
Office of Legal Counsel

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