Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees

Applicability of 18 U.S.C. § 219 to
Members of Federal Advisory Committees

S ection 219(a) o f Title 18 o f the United S tates C ode applies to m em bers o f federal advisory
com m ittees, including the Advisory C om m ittee for T rade Policy and N egotiations, that are
governed by th e Federal Advisory C om m ittee Act.

Section 219(b) m ay be used to exem pt advisory com m ittee m em bers w ho are “special g o v ern ­
m ent em ployees,” but may not be used to exempt “representative” m em bers, w ho are generally
not co n sid ered governm ent em ployees.

T he E m olum ents C lause prohibits an individual w ho is an agent o f a foreign governm ent from
serving on an advisory com m ittee, unless C ongress has consented to such service.

April 29, 1991

M em orandum O p in io n f o r t h e Deputy Co u n sel to the P r e s id e n t

This responds to your request for our opinion whether 18 U.S.C. § 219
applies to members of federal advisory committees generally, and in particu­
lar to the Advisory Committee for Trade Policy and Negotiations (“ACTPN”)
Section 219(a) makes it a criminal offense for a “public official” to be or to
act as an agent of a foreign principal required to register under the Foreign
Agents Registration Act of 1938 (“FARA”). We conclude that section 219(a)
applies to members of federal advisory committees including ACTPN, that
are governed by the Federal Advisory Committee Act.
You have also asked whether the certification procedure in section 219(b)
may be used to exempt members of federal advisory committees from the
criminal prohibition in section 219(a). Section 219(b) may be used to ex­
em pt a d v iso ry com m ittee m em bers who are “ sp ecial G o v ern m en t
employee[s],” but may not be used to exempt “representative” members,
who are generally not considered Government employees. Moreover, absent
congressional consent, the Emoluments Clause of the Constitution indepen­
dently bars any agent of a foreign government — as opposed to an agent of
a private foreign entity — from being a member of a federal advisory com ­
mittee. Granting an advisory committee appointee an exemption under section
219(b) would not satisfy the requirement of congressional consent.
Section 219(a) provides criminal penalties for any “public official, [who]

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is or acts as an agent of a foreign principal required to register under the
Foreign Agents Registration Act of 1938, as amended.” Section 219(c) de­
fines “public official” as a Member of Congress “or an officer or employee
or person acting for or on behalf of the United States, or any department,
agency, or branch of Government thereof, . . . in any official function, under
or by authority o f any such department, agency, or branch of Government.”
M embers o f advisory committees governed by the Federal Advisory Com­
m ittee Act (“FACA”) fall within this definition. FACA provides that advisory
committees are established or utilized “in the interest of obtaining advice or
recommendations for the President or one or more agencies or officers of
the Federal Government.” 5 U.S.C. app. § 3(2). Pursuant to FACA, a
designated federal official calls all meetings of an advisory committee, ap­
proves the agenda, chairs o r attends all meetings, and may adjourn any
meeting of the committee whenever he determines it to be in the public
interest. Id. § 10(e), (f).1 Members of advisory committees subject to FACA
thus perform their official advisory duties “for” the Government and “un­
d e r” a g o v ern m e n t agency, w ithin the m eaning o f sectio n 2 1 9 .2
“Representative” members o f FACA committees — described in your re­
quest as members who appear before an agency, at the agency’s request, to
present the views of a private organization or interest — are also “public
official[s]” within the meaning of section 219: even assuming that “repre­
sentative” members are chosen for committee membership only to present
the views of a private interest, they nevertheless perform their official com­
m ittee duties “for” the United States.3
ACTPN, like most advisory committees, is subject to FACA, 19 U.S.C. §
2155(f), and on that basis we conclude that members of ACTPN are subject
to section 219. ACTPN’s specific functions reinforce that conclusion. ACTPN
was established to give “overall policy advice” on United States negotiating
objectives and bargaining positions in international trade negotiations. Id. §
2155(b)(1). ACTPN functions under the authority of the United States Trade
Representative, an officer o f the United State Government. Id. § 2155(b).
Accordingly, it is clear that members of ACTPN perform “official function[s]”
for the United States “under” a federal agency, and that they are therefore
“public o ffic ia ls]” within the meaning of section 219.4
1See also id. § 9(c)(D ),(E), (F) (advisory committee charter must state “the agency or official to whom
the com m ittee reports,” “the agency responsible for providing the necessary support for the com m ittee,”
and “a description o f the duties for which the committee is responsible”); id. § 12(b) (agency is respon­
sible for providing support services for advisory committees “reporting to it”).
2 T his conclusion is consistent with the judicial construction of the similar definition of “public offi­
cial” in the federal bribery statute, 18 U.S C. § 201(a), on which section 219 was modeled. See 130
Cong. Rec. 1295 (1984) (remarks of Sen. Demon). “[P]ublic official” in section 201(a) has been broadly
interpreted to include persons holding “a position of public trust with official federal responsibilities.”
Dixson v. U nited States, 465 U.S. 482, 496 (1984).
3 Individuals who appear before agencies in a "representative” capacity who are not advisory com m it­
tee m em bers are more properly viewed simply as witnesses. Such witnesses have no federal “official
function" and are not “public officials]” within the meaning of section 219
4 The same general principles govern the application o f section 219 to employees, and to partners, of

Continued

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 The certification procedure in section 219(b), by its terms, allows an
exemption from section 219(a) only for individuals who are employed by
the Government as “special Government employee[s].”5 Persons who serve
on advisory committees as “representative” of private organizations gener­
ally are not considered “employees” of the United States. See Memorandum
for C. Boyden Gray, Counsel to the President, from William P. Barr, Assis­
tant Attorney General, Office of Legal Counsel at 2 n.5 (May 15, 1989).
Accordingly, the certification procedure in section 219(b) is not available to
exempt “representative” members of federal advisory committees from the
prohibition in section 219(a).6 Any other member of ACTPN could, how­
ever, be co n sid ered an “em ployee” o f the U nited S tates, s e e B arr
Memorandum at 1-2 & n.5, and if the member serves no more than 130 days
in any 365-day period, could be a “special Government employee” eligible
for exemption under section 219(b).
The Emoluments Clause of the Constitution, however, may constitute a
bar to an individual’s appointment to a federal advisory committee ab initio.
The Emoluments Clause provides that absent congressional consent, a per­
son holding an “Office of Profit or Trust” under the United States may not
hold any position in, or receive any payment from, a foreign government.
U.S. Const, art. I, § 9, cl. 8.7

4(....continued)
advisory committee members. We believe that an employee who assists a member only in matters that
are not part of the m em ber's advisory committee duties is not subject to section 219. We cannot cat­
egorically conclude, however, that employees of advisory committee members may not be subject to
section 219 when they assist members in performing committee functions or duties. Cf. Dixson, 465
U.S. at 490-96 (officers o f local social service corporation administering HUD program may be “public
officials" within meaning of bribery statute). Whether such persons are or are not subject to section 219
will depend upon the specific facts of each case.
A partner of an advisory committee member is subject to section 219 only if the partner personally
performs official functions “for" the United States. Conversely, section 219 does not im plicitly dis­
qualify an individual from serving as an advisory committee member simply because a partner or a firm
of which he is a m ember is required by FARA to register as the agent of a foreign principal. Rule 202
of the FARA regulations provides that, where a firm or partnership has registered as an entity, a person
within the firm or partnership who “does not engage directly in activity in furtherance o f the interests o f
the foreign principal is not required to file a short form registration statement." 28 C.F.R. § 5.202(b).
5 The term “special Governm ent employee” is not defined in section 219, but is defined in 18 U.S.C.
§ 202(a) to include “an officer or employee o f the executive . . . branch of the United States Govern­
ment, . . . who is retained, designated, appointed or employed to perform, with or without com pensa­
tion, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five
consecutive days, tem porary duties either on a full-time or intermittent basis.” Although section 202(a)
provides that this definition applies “[f]or the purpose of sections 203, 205, 207, 208, and 209,” we
believe that the term “special Government employee" as used in section 219(b) must be understood to
have the same meaning.
6 It would arguably be possible to bring "representative” members of advisory committees within the
scope o f section 219(b), by formally designating them as special Government employees. Any such
designation, however, might subject the designees to provisions of the criminal conflict-of-interest laws
that would otherwise not be applicable. See Barr Memorandum at 2-3.
7 This restriction is in many respects narrower than the prohibition in section 219(a) Section 219(a)
applies to all “public official[s],” a category defined to include some persons who do not hold a federal
position, whereas the Emoluments Clause applies only to persons who do hold such a position. M ore­
over, section 219(a), in addition to prohibiting a public official from serving as the ageiit o f a foreign
government, also prohibits such service for certain nongovernmental foreign corporations, persons, and
partnerships Thus, persons not in violation of the Emoluments Clause might nonetheless violate the
prohibition in section 219(a).

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 Federal advisory committee members hold offices of profit or trust within
the meaning of the Emoluments Clause. They hold positions that are ex­
p re ssly created by federal authority, they are charged w ith federal
responsibilities, and they are often entrusted with access to government in­
formation not available to the public. Therefore, the Emoluments Clause
effectively prohibits an individual who is an agent of a foreign government
from serving on an advisory committee, unless Congress has consented to
such service. We are not aware of any provision of law that provides con­
gressional consent to the service of foreign government agents on advisory
committees. In particular, the certification procedure in section 219(b) does
not provide the required congressional consent because it is only a means of
exemption from the criminal prohibition in section 219(a), and therefore
cannot be read to satisfy the Emoluments Clause.

DOUGLAS R. COX
Deputy Assistant Attorney General
Office o f Legal Counsel

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