Applicability of 18 U.S.C. § 207(c) to President-Elect's Transition Team

Applicability of 18 U.S.C. § 207(c) to President-Elect’s Transition
Team
The one-yeai bar in 18 U.S.C. § 207(c), which prohibits certain former government employees from
contacting the agencies where they worked, applies to persons who serve on a presidential tran­
sition team while receiving a salary from a private employer.
The bar in 18 U.S.C. § 207(c) does not apply to members of a presidential transition team who sup­
port themselves from their own resources or are compensated solely from appropriated funds.
November 18, 1988
L etter fo r t h e D irec to r
O ffice o f G o v e r n m e n t E th ics
This responds to your oral request of November 17, 1988, for our views on
whether the one year bar prohibiting certain former government employees from
contacting their former agency, contained in 18 U.S.C. § 207(c), applies to for­
mer government employees who are working for the President-elect’s transition
team. Presidential Transition Act (“Act”), 3 U.S.C. § 102 note, as amended by
Pub. L. No. 100-398, 102 Stat. 985 (1988).
As you indicated, this is a novel and difficult question given the sui generis
nature of a presidential transition. It is readily apparent that presidential transi­
tions serve an important public function. Congress has endorsed their signifi­
cance, stating, when it set forth the purposes of the Act:
The national interest requires that such transitions in the office of
the President be accomplished so as to assure continuity in the
faithful execution of the laws and in the conduct of the affairs of
the Federal Government, both domestic and foreign.
Id. § 2. We have no doubt that promoting the “orderly transfer of the executive
power,” id., is one of the most important public objectives in a democratic society.
It does not follow from this that the restrictions of 18 U.S.C. § 207(c) do not
apply at all to the transition. The conflict of interest laws also advance extremely
important goals, including promoting public confidence in the integrity of the
federal government and ensuring that corruption—and opportunities for corrup­
tion—are minimized. Thus, in evaluating the applicability of section 207(c), we
believe that it is best to examine the actual status of a transition staff member in
conjunction with the evils that the ethics laws were intended to combat.
At one end of the spectrum is the federal employee who is detailed by his
agency to assist the transition team. He is clearly a federal employee, covered by
all applicable portions of 18 U.S.C. §§ 201-209, and obviously his status raises
no question under section 207(c). The Act specifically refers to such employees
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and emphasizes that their status vis-a-vis the United States does not change while
they are working with the transition team. Act, § 3(a)(2). Based upon this statu­
tory recognition, we also agree with you that the prohibitions in section 203 and
205 do not apply to such detailed employees by virtue of the “official duties” ex­
ception to those provisions.
At the other end of the spectrum is an individual who recently occupied a high,
policy making position in the executive branch and who is now employed by a
company or law firm in the private sector. If such an individual, while still re­
ceiving his private sector salary, works for the transition team, he typifies the po­
tential for abuse that we believe that section 207(c) was intended to guard against.
He is not compensated by the federal government,1 may not make decisions or
participate in matters on behalf of the United States,2 and his loyalties are not un­
divided.3 Because the central purpose of section 207(c) was to preclude for one
year a limited class of high-level government employees from contacting their
former agencies unless the contact was clearly on behalf of the United States, we
believe such individuals who receive compensation from the private sector for,
or during, their work for the transition team are not exempt from the fairly ab­
solute “no contact” rule, merely by virtue of their association with the transition.
We therefore believe that such individuals are, notwithstanding their employ­
ment by the transition team, covered by 18 U.S.C. § 207(c), and barred from con­
tacting their former department or agency for the statutory period.
It is less clear that section 207(c) should apply to those former high-level gov­
ernment officials who have been separated from their agencies less than one year
who are either volunteers for the transition team and are supporting themselves
from their own resources or who have severed their ties with private sector em­
ployment and are being compensated solely from funds appropriated under the
Act. It is much more likely that those former officials who are supporting them­
selves and are acting solely in the interests of the President-elect4 will not face
the divided loyalties at which section 207(c) was aimed.
The same argument is true with respect to those whose salaries are paid out of
appropriated funds: Congress has decided that it is in the interest of the United
States (even if the actions of the transition team cannot be precisely said to be on
behalf of the United States) that these individuals be paid with federal funds be­
cause they are advancing a federal interest. Our hesitation to apply section 207(c)
to transition team members compensated with appropriated funds is bolstered by
the fact that the Act was recently amended to provide significant amounts of fund­
1 The Act also makes clear that such staff members are not federal employees except for limited provisions not
relevant here. Act, § 3(a)(2)
2 We understand that the proposed Standards of Conduct for a transition worker make it clear that he cannot and
should not attempt to interfere with the decision making functions of the agencies.
3 A clear example would be a former Department of Defense officer who is now working for a defense con­
tractor or a former Department of Justice official who is now representing companies whose interests would be af­
fected by decisions of the Department
4 This would seem to apply with special force to a former government official who had no pnvate sector affili­
ation since leaving government, such as former government employees participating in the political campaign which
led to the election of the President-elect
5 Presidential Transitions Effectiveness Act, Pub. L No. 100-398, 102 Stat. 985 (1988).
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ing for some transition staff members.5 In return for the funding, the President­
elect must undertake certain steps to minimize the potential for conflicts of in­
terest with respect to all transition personnel. Act, § 5(b), as amended. As the
House Report on the recent bill notes:
Once again, the unique circumstances of a Presidential transition
require balancing the ability of a new President to conduct tran­
sition activities as completely and effectively as possible, and in
a manner he desires, with the necessity of maintaining public con­
fidence . . . .
H.R. Rep. No. 532, 100th Cong., 2d Sess. 6-7 (1988), reprinted in 1988
U.S.C.C.A.N. 1372, 1376. Thus, Congress, notwithstanding the fact that these
compensated staff members are not generally treated as federal employees, has
made it clear that they occupy a unique position and one that is worthy of fed­
eral funding.
Second, with respect to both self-supporting and transition team members com­
pensated solely with public funds, we are influenced by the fact that the Crimi­
nal Division has informally advised us that they would not prosecute such indi­
viduals under section 207(c) so long as their contacts with their former federal
departments or agencies was only for transition purposes. If those who are charged
with the direct enforcement of the objectives that section 207(c) was intended to
achieve do not believe that those who are self-supporting volunteers or who are
compensated solely out of appropriated funds fall outside the scope of section
207(c), we do not feel compelled to disagree.
We would note, in concluding, that former government employees within the
scope of section 207(c), regardless of their funding source for the transition, may
utilize the exception in 18 U.S.C. § 207(i) which permits former employees oth­
erwise barred by section 207(c) from contacting their former agencies for one
year to make or provide a statement to those agencies based on the employees’
prior special knowledge, provided that no compensation is received. Thus, any
former employee could assist the transition by supplying to the transition or his
former department or agency for the transition an analysis based on his prior ex­
perience with and knowledge of his former department or agency, even if the
considerations above preclude that individual’s current contact with his former
department or agency. Finally, it is of course apparent that section 207(c) does
not prevent any covered former employee from contacting departments or agen­
cies other than the one by which he was formerly employed.
D o u g l a s W . K m ie c
Assistant Attorney General
Office of Legal Counsel

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