Application of the Federal Bribery Statute to Civilian
Aides to the Secretary of the Army
A Civilian Aide to the Secretary of the Army is a public official who is barred by 18 U.S.C. §
201(c) from receiving anything of value because of an official action taken.
July 12, 1989
M e m e o r a n d u m O p in io n for the G e n er a l C ounsel
D epartm en t of the A rmy
This letter responds to your Office’s request for an opinion on whether
the federal bribery statute, 18 U.S.C. § 201(c), applies when a Civilian
Aide to the Secretary of the Army receives an offer for reimbursement of
expenses incurred in the discharge o f Civilian Aide duties.1
We agree, based on the statement o f facts in the Army Letter, that it
was reasonable for the Army to conclude that the Civilian Aide should
not accept the offer for reimbursement from the private, non-profit foun
dation for these services. Although there may be instances in which the
conduct o f a Civilian Aide could give rise to a prosecution under section
201(c), we do not believe that it would be useful or appropriate to spec
ulate now regarding the legality o f future cases that may raise similar
issues. Our reasons for these conclusions are set forth below.
I. Background
A Civilian Aide is a private citizen appointed by the Secretary o f the
Army to represent the civilian community. Army Regulation 1-15,
Civilian Aides to the Secretary of the Arm y. Civilian Aides serve without
salary or other compensation by the federal government, although they
may receive reimbursement for certain travel expenses. A private, non
profit foundation offered to pay the expenses incurred by one o f these
Civilian Aides in the discharge o f her official duties, including the cost o f
any secretarial services needed in the future.2 Your Office advised the
Civilian Aide to decline the offer because o f your concern that the con
1Letter for Mr Douglas W Kmiec, A cting Assistant Attorney General, Office o f Legal Counsel, from
Darrell L. Peck, Acting General Counsel, Department o f the Army (July 8, 1988) ( “Army Letter”)
2Arm y Letter at 1.
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tribution might be prohibited by 18 U.S.C. § 201(c). You have sought guid
ance about what to do if this situation arises again.
II. Analysis
Section 201(c)(1)(B) o f the federal bribery statute subjects to criminal
liability “ [w]hoever — otherwise than as provided by law for the proper
discharge o f official duty — being a public official, ... directly or indirect
ly ... accepts, or agrees to receive or accept anything o f value personally
for or because o f any official act performed or to be performed by such
official or person.” The requirements for criminal liability under this pro
vision are three-fold: (1) the person must be a “public official”; (2) that
official must accept or agree to receive anything o f value; and (3) the thing
of value must be given for or because o f any official act by such official.
A. Public official
We believe that a Civilian Aide would be considered a “public official”
under the statute. Section 201(a) defines a “public official,” in relevant
part, as a “person acting for or on behalf o f the United States, or any
department ... o f Government thereof ... in any official function, under
or by authority o f any such department.” Civilian Aides act on behalf o f
and by the authority o f the Department o f the Army. The Supreme Court
has enforced a broad construction o f the “public official” provision,
“agreeing with the Government” that section 201 is a comprehensive
statute aimed at all who act on behalf o f the government. Dixson v.
United States, 465 U.S. 482, 496 (1984). The Dixson court stated:
To determine whether any particular individual falls within
this category, the proper inquiry is not simply whether the
person had signed a contract with the United States or
agreed to serve as the Government’s agent, but rather
whether the person occupies a position of public trust with
official federal responsibilities. Persons who hold such
positions are public officials within the meaning o f § 201
and liable for prosecution under the federal bribery statute.
Id. In Dixson, the Court held that the term included “officers o f a private,
nonprofit corporation administering and expending federal community
development block grants” because, as administrators of the subgrant,
they were responsible for a program that distributed federal funds
according to federal guidelines. Id. at 497.3 As the Dixson court noted,
°See also United Slates v Kirby, 587 F2d 876 (7th Cir. 1978) (grain inspector employed by private com
pany but licensed by USDA was public official); United States v Gallegos, 510 F Supp. 1112 (D N.M.
Continued
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since the original enactment o f the bribery law in 1853 Congress has
enacted successive statutes using “broad jurisdictional language,” id. at
491, and in keeping with this intent, the courts have broadly interpreted
the phrase “person acting for or on behalf o f the United States.” Id. at 492.
Although Civilian Aides are not federal employees, Army Regulation 1-
15, § 5(b), they perform numerous functions that would appear to meet
the test o f “acting for or on behalf of the United States.” See, e.g., Army
Regulation 1-15, § 4(d) (responsibility to provide “individual advice” to
the Secretary o f the Army and others about public attitudes towards the
Army, to develop programs to attain maximum understanding and coop
eration between the civilian community and the Army, and to disseminate
information to the public about the Army’s objectives); id. § 13 (travel as
Civilian Aide paid for by government as official travel); id. § 10 (detailing
Civilian Aides’ access to classified information); id. § 11 (same). This
Office previously has considered the duties and responsibilities o f the
Civilian Aides in determining whether such aides were subject to the
Emoluments Clause o f the Constitution. In that opinion, we noted that
the United States reposes great trust in the Aides, and relies
upon them to perform various duties that further the
national defense.
These same attributes — the reposing of trust, the necessi
ty o f undivided loyalty to the United States, the importance
o f the task performed by those who hold the office, per
sonalized selection and access to classified information —
characterize the “office o f trust” for purposes o f the
Emoluments Clause .... We have no difficulty concluding,
therefore, that the position o f Civilian Aide to the Secretary
o f the Army is an “Office o f Trust” under the United States
for purpose o f the Emoluments Clause.4
In keeping with this view and consistent with the Dixson decision, we
believe that Civilian Aides should be considered “public officials” for pur
poses o f 18 U.S.C. § 201.
3(. continued)
1981) (em p loyee o f state government w h o worked under direct supervision o f federal official in admin
istration o f federal program was public officia l), United States v. G riffin, 401 F. Supp 1222 (S D. Ind
1975), a ffd without opinion sub nom United States v Metro Management Corp., 541 F2d 284 (7th Cir
1976) (em p loyee o f a private company w h o acted as independent contractor for HUD was public o ffi
cial); S. Rep N o 2213, 87th Cong., 2d Sess. 8 (1962) (term “include[s] officers and em ployees o f the three
branches o f government, jurors, and other persons carrying on activities fo r or on behalf o f the
Governm ent”).
4 Memorandum fo r James H. Thessin, Assistant Legal Adviser for Management, Department o f State,
from John O. McGinnis, Deputy Assistant Attorney General, Office o f Legal Counsel, Re. Application of
the Emoluments Clause to a Civilian A ide to the Secretary o f the A rm y (Aug. 29, 1988) (citations and
footnotes om itted).
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B. Thing of value
The second requirement o f criminal liability is that the Civilian Aide
receive “anything o f value.” This requirement appears not to have been
frequently litigated. Based on existing case law, however, we believe that
items such as the reimbursement expenses you describe for prior expens
es incurred by the Civilian Aide and future secretarial services probably
would meet the statute’s test. See, e.g., United States v. Biaggi, 853 F.2d
89 (2d Cir. 1988) (finding vacation expenses provided to Congressman to
be a thing “o f value”), cert, denied, 489 U.S. 1052 (1989); United States v.
Gorman, 807 F.2d 1299 (6th Cir. 1986) (finding future employment
promised by a third party to be a thing “o f value”), cert, denied, 484 U.S.
815 (1987).
C. Received fo r an official act
The legislative history o f the 1962 formulation o f this provision, which
has remained substantially unchanged, states that “ [t]he term ‘official act’
is defined to include any decision or action taken by a public official in
his capacity as such.” S. Rep. No. 2213, 87th Cong., 2d Sess. 8 (1962). One
court has held that the mere use by a public official o f the status o f his
office is sufficient to warrant liability under the statute. See, e.g., United
States v. Biaggi, 853 F.2d at 98 (noting that congressman’s “invocation o f
his position and o f congressional interest in his intercession with others
on behalf o f a constituent” is to be considered an official act). Absent par
ticular facts, it is difficult to postulate the circumstances under which
something o f value would be deemed to be given because o f an official
act by a Civilian Aide.5However, given the apparent breadth o f the Biaggi
court’s holding and our conclusion that Civilian Aides are public officials,
we recommend that you caution the Civilian Aides to discuss with your
Department any offer o f funds or other assistance that they receive from
a third party.
III. Conclusion
We believe that a Civilian Aide is a public official who is barred by 18
U.S.C. § 201(c) from receiving anything o f value because o f an official
action taken. Whether this Department would prosecute a case o f this
type would depend upon the particular facts and circumstances.
We reiterate that we believe your advice to the Civilian Aide in the cir
cumstances you described was appropriate and consistent with the Army
5 For example, unless w e w ere to interview officials at the private foundation that made the offer to the
Civilian Aide in your example, w e would not be able to judge whether the offer was made because o f
longstanding fnendship with the particular Civilian Aide, because o f disinterested community spirit and
pride in her success, or because o f a corrupt motive
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Regulation’s direction that Civilian Aides “avoid any situation producing
an actual or apparent conflict” o f interest between their private lives and
their roles as Civilian Aides.6 Should this problem arise again, we invite
you to consult with us or with the Public Integrity Section o f the Criminal
Division.
WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
“ Arm y Regulation 1-15, § 6(a)
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