Application of 18 U.S.C. § 207(f) to a Former Senior Employee

Application of 18 U.S.C. § 207(f) to a
Former Senior Employee
Title 18, section 207(f) of the U.S. Code prohibits a former senior employee of an executive branch
department from representing a foreign entity before members of Congress within one year of the
termination of his employment.

June 22, 2004

MEMORANDUM OPINION FOR THE ACTING DIRECTOR
OFFICE OF GOVERNMENT ETHICS

You have requested our opinion whether 18 U.S.C. § 207(f) bars a former
senior employee of an executive branch department* from representing a foreign
entity before members of Congress within one year of the termination of his
employment.1 For the reasons stated below, we conclude that the statute does
prohibit such representation.
In the Ethics in Government Act of 1978, Congress substantially amended the
conflict of interest laws applicable to federal employees in an attempt “to preserve
and promote the integrity of public officials and institutions.” Pub. L. No. 95-521,
92 Stat. 1824. Among these conflict of interest laws are various restrictions on the
activities of government officers and employees after they leave government
service. These “post-employment” restrictions are set out in 18 U.S.C. § 207 (2000
& Supp. III 2004). Some post-employment restrictions apply solely to former
executive branch personnel, see, e.g., 18 U.S.C. § 207(a), (c), (d), while others
apply to former members of Congress and officers and employees of the Legisla-
tive Branch, see, e.g., 18 U.S.C. § 207(e). Subsection (f), added by the Ethics
Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, imposes certain re-
strictions relating to representation of foreign entities and applies to former offi-
cers and employees of both branches.
Section 207(f)(1) provides:

Restrictions.—Any person who is subject to the restrictions con-
tained in subsection (c), (d), or (e) and who knowingly, within 1 year
after leaving the position, office, or employment referred to in such
subsection—

*
Editor’s Note: We are not identifying in the published version of this opinion the executive branch
department that employed the individual who is the subject of the opinion.
1
See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from
Marilyn L. Glynn, Acting Director, Office of Government Ethics (Apr. 6, 2004). We also solicited and
obtained the views of the former employing department on this question. See Letter for Renée Lettow
Lerner, Deputy Assistant Attorney General, Office of Legal Counsel (May 12, 2004). The Criminal
Division of the Department of Justice concurs with the conclusion reached in this memorandum.

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(A) represents a foreign entity before any officer or employee of
any department or agency of the United States with the intent to
influence a decision of such officer or employee in carrying out
his or her official duties . . .

shall be punished as provided in section 216 of this title.

18 U.S.C. § 207(f)(1).2 The question we must decide, therefore, is whether mem-
bers of Congress are “officer[s] or employee[s] of any department or agency of the
United States.”
In the absence of any context indicating otherwise, we would ordinarily con-
strue the phrase “department or agency of the United States” to refer to entities
within the Executive Branch. See, e.g., Hubbard v. United States, 514 U.S. 695,
699 (1995) (noting that the term “department” is commonly used “to refer to a
component of the Executive Branch”). However, section 207(i) provides as
follows:

Definitions.—For purposes of this section—

(1) the term “officer or employee”, when used to describe the per-
son to whom a communication is made or before whom an ap-
pearance is made, with the intent to influence, shall include—

(A) in subsections (a), (c), and (d), the President and the Vice
President; and

(B) in subsection (f), the President, the Vice President, and
Members of Congress.

18 U.S.C. § 207(i) (emphasis added). Congress has thus expressly indicated its
intent to bar individuals who have recently held senior government positions from
lobbying its members on behalf of foreign entities. Unless the term “department or
agency of the United States” is read to encompass the Legislative Branch, the
inclusion of members of Congress in this provision would lack meaning or
application. See TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal
principle of statutory construction’ that ‘a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’”) (quoting Duncan v. Walker, 533 U.S. 167,
174 (2001)); United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is our

2
Section 216 provides both civil and criminal penalties for conduct violating section 207. 18 U.S.C.
§ 216 (2000).

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duty ‘to give effect, if possible, to every clause and word of a statute.’”) (quoting
Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)).3
In addition, Congress has provided a statutory definition of the term “depart-
ment,” applicable generally to title 18, that explicitly permits a broad interpreta-
tion that would extend to the Legislative Branch. “As used in this title: The term
‘department’ means one of the executive departments enumerated in section 1 of
Title 5, unless the context shows that such term was intended to describe the
executive, legislative, or judicial branches of the government.” 18 U.S.C. § 6
(2000) (emphasis added). Here, the inclusion of “Members of Congress” within
the term “officer or employee of any department . . . of the United States” supports
the conclusion that “department,” at least in the context of section 207(f), must
include the Legislative Branch. In Hubbard, by contrast, the Supreme Court found
“nothing in the text of [18 U.S.C. § 1001, prohibiting the making of false state-
ments “in any matter within the jurisdiction of any department or agency of the
United States”] . . . that even suggests . . . that the normal definition of ‘depart-
ment’ was not intended.” 514 U.S. at 701 (overruling United States v. Bramblett,
348 U.S. 503 (1955), in which the Court had held that the term “department” in
section 1001 included the Legislative Branch).
Our conclusion derives further support from the structure of section 207. The
scope of section 207(f), limiting representation of foreign entities, is broader than
that of certain other subsections respecting both those who may not lobby and
those who may not be lobbied. The broader scope of section 207(f) suggests
Congress had particular concern about representation of foreign entities. As noted
above, section 207(f) applies to individuals subject to the restrictions in subsec-
tions (c), (d), and (e), and therefore covers former officers and employees of both
the Executive and Legislative Branches. Section 207’s definitional provision
likewise defines the prohibited “targets” of lobbying activity more broadly with
respect to subsection (f) than it does with respect to subsections (a), (c), and (d),
which apply only to former executive branch personnel. For purposes of subsec-
tions (a), (c), and (d), “the term ‘officer or employee,’ when used to describe the
person to whom a communication is made or before whom an appearance is made,
with the intent to influence,” includes “the President and the Vice President.” 18
U.S.C. § 207(i)(1). For purposes of subsection (f), as explained above, the term
also includes “Members of Congress.” Id. § 207(i)(1)(B). There can be little doubt,
therefore, that section 207(f) prohibits representation of foreign entities before
Congress as well as before executive branch agencies.4

3
Limiting application of the phrase “Members of Congress” to members serving on commissions
that constitute “agencies,” as your letter suggests, would not eliminate this problem but would rather
merely render the phrase redundant.
4
There is legislative history that could be read to suggest that Congress intended to proscribe
representation of foreign entities only before the branch of government in which a particular individual
formerly served. We do not find the legislative history persuasive on this point. Congress added the

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Your letter suggests that the term “department” in section 207(f) should be
interpreted in a manner consistent with the interpretation of that term in other parts
of section 207 and other conflict of interest laws.5 See, e.g., Comm’r of Internal
Revenue v. Keystone Consol. Indus., 508 U.S. 152, 159 (1993) (“It is a ‘normal
rule of statutory construction’ . . . that ‘identical words used in different parts of
the same act are intended to have the same meaning.’”) (citations and quotations
omitted). But “the presumption is not rigid,” and yields to “the cardinal rule that
‘[s]tatutory language must be read in context.’” Gen. Dynamics Land Sys. v. Cline,
540 U.S. 581, 596 (2004) (citations and quotations omitted) (finding that the term
“age” in the Age Discrimination in Employment Act varies in meaning according
to context). As discussed above, section 207(i) expressly differentiates between

definitional sections 207(i)(1)(A) and (B), quoted in the text, in the Ethics Reform Act of 1989:
Technical Amendments, Pub. L. No. 101-280, 104 Stat. 149 (1990). The explanation for the technical
amendments states: “Definitions—The amendment specifies that the term ‘officer or employee’, when
used to describe the person to whom a communication is made, includes the President and Vice
President with respect to restrictions on former executive branch officials, and includes members of
Congress with respect to restrictions on the Legislative Branch.” Public Law No. 101-280, Ethics
Reform Act of 1989: Technical Amendments, Detailed Explanation Prepared by House and Senate
Legislative Counsel, 1990 U.S.C.C.A.N. 169. This language in the explanation does not alter our
analysis. The term “includes” in this sentence of the explanation is clearly not meant to be exclusive.
Many other people besides those specifically listed in the explanation may not be contacted, see, e.g.,
18 U.S.C. § 207(d)(2)(A). In the case of subsection (f), these people include employees of branches
other than the one the restricted person formerly served in. We therefore do not read the explanation to
suggest that Congress intended to proscribe representation of foreign entities only before the branch of
government in which a restricted person formerly served. Even if it does, the text of the statute, which
is controlling, provides no basis for drawing such a distinction. Both those who are restricted from
lobbying and those who may not be lobbied are clearly specified for each subsection. Even if one
construes the term “department” narrowly, section 207(f) would bar former legislative employees from
lobbying executive branch agencies, and thus precludes a “same branch” interpretation. If the term
“officer or employee” includes members of Congress for purposes of section 207(f), it must do so for
all individuals covered by that section. Cf. Hubbard, 514 U.S. at 701 (18 U.S.C. § 6 requires courts to
examine the text of a statute, not its legislative history); id. at 708 (“Courts should not rely on
inconclusive statutory history as a basis for refusing to give effect to the plain language of an Act of
Congress, particularly when the Legislature has specifically defined the controverted term.”).
5
You cite, for example, two previous opinions of this Office interpreting other conflict of interest
provisions. See Conflicts of Interest—18 U.S.C. § 207—Former Executive Branch Officer, 3 Op.
O.L.C. 373 (1979); Applicability of 18 U.S.C. § 205 to Union Organizing Activities of Department of
Justice Employee, 5 Op. O.L.C. 194 (1981). Neither of these opinions, however, provides guidance on
the interpretation of the term “department” in section 207(f). In the 1979 opinion, we interpreted 18
U.S.C. § 207(a) not to bar legislative lobbying by a former Executive Branch official after concluding
that legislation would not generally fall into the proscribed category of “particular matters involving
specific parties.” 3 Op. O.L.C. at 376. In the 1981 opinion, we interpreted 18 U.S.C. § 205 (which pro-
hibits certain representational activities by current employees before “any department, agency, [or]
court”) as barring representation before the Office of the Architect of the Capitol, which we concluded
fell within the “expansive” definition of “agency” in title 18. 5 Op. O.L.C. at 194–95. We acknowl-
edged that the legislative history of the conflict of interest laws (which at that time did not include
section 207(f)) suggested that Congress did not intend for section 205 to prohibit representational
activities before Congress itself, but determined that “Congress did not intend to limit the term
‘agency’ to entities within the executive branch.” Id. at 195.

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section 207(f) and other provisions of section 207, and thus provides a plain
textual basis for giving “department” a broader meaning in section 207(f) than it
might have in other conflict of interest provisions.6
We therefore conclude that 18 U.S.C. § 207(f) bars a former senior executive
branch employee from representing a foreign entity before Congress within one
year of leaving his position.

RENÉE LETTOW LERNER
Deputy Assistant Attorney General
Office of Legal Counsel

6
Nor do we believe that the “rule of lenity” requires a different conclusion. Cf. Jones v. United
States, 529 U.S. 848, 858 (2000) (“We have instructed that ‘ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity’”) (quoting Rewis v. United States, 401 U.S. 808,
812 (1971)). Resort to that rule is unnecessary in this instance, since we do not find the statute
ambiguous. The rule of lenity applies only where, “after seizing everything from which aid can be
derived, . . . we can make no more than a guess as to what Congress intended.” Holloway v. United
States, 526 U.S. 1, 12 n.14 (1999) (internal quotations and citations omitted); see also Muscarello v.
United States, 524 U.S. 125, 138–39 (1998) (“The simple existence of some statutory ambiguity . . . is
not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.”);
Chapman v. United States, 500 U.S. 453, 463 (1991) (“rule of lenity . . . is not applicable unless there
is a ‘grievous ambiguity or uncertainty in the language and structure of the Act’”). The statute at issue
here does not present any “grievous ambiguity” that cannot be resolved using ordinary tools of
statutory construction.

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