Applicability of 18 U.S.C. § 207(f) to Public Relations Activities Undertaken for a Foreign Corporation Controlled by a Foreign Government

Applicability of 18 U.S.C. § 207(f) to Public Relations
Activities Undertaken for a Foreign Corporation
Controlled by a Foreign Government
A foreign corporation is a “foreign entity” under 18 U.S.C. § 207(f) if it exercises sovereign authority
or functions de jure or de facto.
A former official’s proposed activities are not prohibited by section 207(f)(1) if the former official does
not provide those services on behalf of a “foreign entity,” regardless of whether the former official’s
services incidentally benefit the foreign entity’s interests.
Where the former official does provide services on behalf of a “foreign entity,” the proposed public
relations and media activities would fall within the scope of section 207(f)(1) if the former official
acts with the requisite intent to influence a decision of an officer or employee of the United States
government.

August 13, 2008

MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF COMMERCE

Section 207(f) of title 18, United States Code, prohibits former government
officials from “represent[ing]” or “aid[ing] or advis[ing]” a “foreign entity” under
certain circumstances within one year of leaving government service. 18 U.S.C.
§ 207(f)(1) (2000). Your office has sought our opinion about the application of
this prohibition to proposed public relations and media activities of a former senior
official of the Department of Commerce on behalf of a foreign corporation that is
owned and controlled by an instrumentality of a foreign government. That request
raises three questions: (1) whether the foreign corporation is a “foreign entity” for
purposes of section 207(f); (2) if not, whether the proposed activities are neverthe-
less prohibited because the foreign government supported the foreign corpora-
tion’s efforts to influence the United States government; and (3) if the foreign
corporation is a “foreign entity,” whether the proposed activities fall within the
class of activities that section 207(f)(1) prohibits. 1
For the reasons described below, we conclude that a foreign corporation is a
“foreign entity” under section 207(f) if it exercises sovereign authority or func-
tions de jure (i.e., by formal delegation) or de facto. Based on the information
provided, however, we are unable to reach a conclusion about whether the
particular foreign corporation described in your letter is such a “foreign entity.”

1
Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from
John J. Sullivan, General Counsel, Department of Commerce (Nov. 23, 2005) (“Commerce Letter”).
We also sought and received the views of the Office of Government Ethics (“OGE”). See Letter for
Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Marilyn L.
Glynn, General Counsel, Office of Government Ethics (Dec. 12, 2005) (“OGE Letter”).

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We further conclude that the former official’s proposed activities are not
prohibited by section 207(f)(1) if the former official does not provide those
services on behalf of a “foreign entity,” regardless of whether the former official’s
services incidentally benefit the foreign entity’s interests. Where the former
official does provide services on behalf of a “foreign entity,” however, we believe
that the proposed public relations and media activities would fall within the scope
of section 207(f)(1), if the former official acts with the requisite intent to influence
a decision of an officer or employee of the United States government.

I.

Your letter states that the foreign corporation at issue is a subsidiary of compa-
ny owned and controlled by an instrumentality of a foreign government. The
foreign government originally established the parent corporation as a state-owned
company with overall responsibility for the administration and development of the
foreign government’s offshore petroleum operations. The parent company later
transferred these operational and commercial interests to the subsidiary company
at issue here.
The subsidiary made a public offer to purchase a United States oil and gas
company. The bid was to be financed partly through loans from the subsidiary’s
state-owned parent corporation and partly from a foreign bank, also owned by the
foreign government. In response to criticism of the bid from members of Congress
and others in the United States, the foreign government made public statements
demanding that the United States government refrain from interfering in the
proposed transaction. While the bid was pending, a communications and media
firm asked a former senior official of the Department of Commerce to perform
work as a consultant on behalf of the foreign corporation. The proposed work
would have included writing op-ed pieces and articles supporting the purchase in
newspapers, magazines, and trade journals, and responding to reporters who
contacted him about the matter. The former official did not plan to meet with any
U.S. government officials on behalf of the foreign corporation, nor did he plan to
act as a lawyer, agent, or other official representative for the company. Although
the one-year period in which section 207(f) would have applied has expired, your
office has advised that the questions raised in your letter are recurring ones and
that it continues to seek our opinion on the subject.

II.

We begin with the question whether the foreign corporation at issue is a “for-
eign entity” for purposes of 18 U.S.C. § 207(f). Under that provision, former
senior officials of the federal government are subject to a temporary post-
employment restriction on activities conducted on behalf of a “foreign entity.”

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Section 207(f)(1) provides that for one year after leaving government employment,
a former senior official may not knowingly:

(A) represent[] a foreign entity before any officer or employee of any
department or agency of the United States with the intent to influ-
ence a decision of such officer or employee in carrying out his or her
official duties, or

(B) aid[] or advise[] a foreign entity with the intent to influence a de-
cision of any officer or employee of any department or agency of the
United States, in carrying out his or her official duties.

18 U.S.C. § 207(f)(1). A “foreign entity” for purposes of the restriction is “the
government of a foreign country as defined in section 1(e) of the Foreign Agents
Registration Act of 1938, as amended, or a foreign political party as defined in
section 1(f) of that Act.” Id. § 207(f)(3). A “government of a foreign country”
under the Foreign Agents Registration Act (“FARA”), in turn,

includes any person or group of persons exercising sovereign de fac-
to or de jure political jurisdiction over any country, other than the
United States, or over any part of such country, and includes any
subdivision of any such group and any group or agency to which
such sovereign de facto or de jure authority or functions are directly
or indirectly delegated.

22 U.S.C. § 611(e) (2000). 2
Under this definition, we agree with the Office of Government Ethics (“OGE”)
that ownership or control by a foreign government, standing alone, does not
necessarily make a foreign corporation a “foreign entity” for purposes of 18 U.S.C.
§ 207(f). See OGE, Summary of Post-Employment Restrictions of 18 U.S.C. § 207, at
11 (July 29, 2004) (“Summary of Post-Employment Restrictions”) (attachment to
Memorandum to Designated Agency Ethics Officials, General Counsels and
Inspectors General, from Marilyn L. Glynn, Acting Director, Office of Government
Ethics, Re: Reissuance of Post-Employment Summary, DO-04-023 (July 29, 2004))

2
We note that this statutory definition of “government of a foreign country” differs significantly
from definitions of “foreign government” or “foreign state” found elsewhere in the United States Code.
For instance, a “foreign government” for purposes of foreign gift rules is defined to mean “any unit of
foreign governmental authority,” “any international or multinational organization whose membership is
composed of any unit of foreign government,” and “any agent or representative of any such unit or
such organization, while acting as such.” 5 U.S.C. § 7342(a)(2) (2000). Similarly, the Foreign
Sovereign Immunities Act defines “foreign state” to mean any “separate legal person . . . which is an
organ of a foreign state . . . or a majority of whose shares or other ownership interest is owned by a
foreign state . . . and which is neither a citizen of a State of the United States . . . nor created under the
laws of any third country.” 28 U.S.C. § 1603 (2000).

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(available at http://www.oge.gov/OGE-Advisories/Legal-Advisories/Attachment-to-
DO-04-023--Summary-of-Post-Employment-Restrictions-of-18-U-S-C--§-207/, last
visited Aug. 15, 2014). The touchstone of the statute’s definition is instead whether
an entity “exercis[es] sovereign de facto or de jure political jurisdiction over [all or
part of a foreign] country,” or exercises “such sovereign de facto or de jure authority
or functions” by delegation. 22 U.S.C. § 611(e). Because foreign corporations
generally do not themselves have “sovereign . . . political jurisdiction over [a]
country” but rather exercise any sovereign powers they may possess by delegation,
we focus on the latter portion of 22 U.S.C. § 611(e), which states that the term
“foreign entity” includes an entity that exercises “sovereign de facto or de jure
authority or functions” by “direct[] or indirect[]” delegation from a foreign govern-
ment. Id. Under this portion of the statutory definition, as OGE has advised, “[a]
foreign commercial corporation will not generally be considered a ‘foreign entity’
for purposes of section 207(f) unless it exercises the functions of a sovereign” as
specified in section 611(e), i.e., the exercise of “political jurisdiction over . . . any
part of [a foreign] country.” Summary of Post-Employment Restrictions at 11;
accord OGE, Letter to a Private Attorney, Informal Advisory Ltr. 03x1, 2003 WL
23675077 (Jan. 2) (“OGE Advisory Letter”).
Whatever the precise limits of “sovereign political jurisdiction,” however, it is
plain that not every governmental action involves the exercise of a “sovereign
authority or function”: some governmental actions are merely “proprietary” or
“commercial” in nature, see Officers of the United States Within the Meaning of
the Appointments Clause, 31 Op. O.L.C. 74, 90 (2007) (citing Opinion of the
Justices, 3 Greenl. (Me.) 481, 483 (1822)), a distinction that OGE has recognized
in assessing whether a foreign corporation is a “foreign entity” under section 207,
see OGE Advisory Letter, 2003 WL 23675077, at *2 (advising that a foreign
government-owned corporation that performed “strictly commercial” tasks was
not a “foreign entity” under section 207(f)). A government does not exercise
sovereign authority, for example, when it elects to act as a “market participant” or
perform “strictly commercial” functions. See New Energy Co. v. Limbach, 486
U.S. 269, 277 (1988) (distinguishing a state’s activities in its “distinctive govern-
mental capacity” from activities in its “more general capacity of a market partici-
pant,” such as when it “manufacture[s] and sell[s] cement”); OGE Advisory
Letter, 2003 WL 23675077, at *2. Even in circumstances where a government has
reserved a monopoly for itself or a government-owned corporation in the relevant
market, it may perform proprietary or commercial functions that are not uniquely
“sovereign” but rather are common to public and private entities alike. When
performing them, a government does not exercise regulatory authority, execute or
enforce the law, or, more generally, take actions that are associated with the
exercise of “sovereign political jurisdiction” over a country within the meaning of
22 U.S.C. § 611(e). Thus, we agree with OGE that a foreign government owned
corporation that performs “strictly commercial” functions is not a “foreign entity”

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for purposes of section 207(f). See OGE Advisory Letter, 2003 WL 23675077, at
*2.
In sum, the determination whether a foreign commercial corporation is a “for-
eign entity” for purposes of section 207(f) depends on whether the corporation
possesses delegated authority or performs functions that involve the exercise of
“sovereign . . . political jurisdiction,” which, at a minimum, excludes foreign
corporations that perform only proprietary or commercial functions that may be
performed by a private entity without any governmental delegation. Applying this
inquiry to a corporation owned or controlled by a foreign government requires
close attention to the authority the company exercises and the functions it per-
forms, both by formal delegation from a foreign government and in practice. See
22 U.S.C. § 611(e) (“government of a foreign country . . . includes . . . any group
or agency to which such sovereign de facto or de jure authority or functions
are . . . delegated”) (emphasis added); see also OGE Advisory Letter, 2003 WL
23675077, at *2 (examining the authority and functions exercised by a foreign
corporation in practice).
We lack sufficient information to reach a conclusion about whether the foreign
corporation at issue is a “foreign entity” for purposes of 18 U.S.C. § 207(f). Many
of the functions it performs (“petroleum exploration, development, production,
and sales activities,” Commerce Letter at 6) could be proprietary or commercial,
rather than sovereign, in nature. Your letter, however, describes other authority or
functions (“administration and development of offshore petroleum operations with
foreign oil and gas companies,” Commerce Letter at 5) that may be sovereign,
depending on the manner in which they are conducted. As part of the “administra-
tion and development of offshore petroleum operations with foreign oil and gas
companies,” for example, the foreign corporation might have political authority to
exclude others from access to the foreign country’s offshore oil and gas reserves
by setting policy governing oil and gas offshore operations, or by granting licenses
for oil and gas extraction. On the other hand, the “administration and development
of offshore petroleum operations” might only involve purely commercial activities
in the offshore oil and gas industries that can be performed without any delegation
of “sovereign” authority. Without more information about the details of the
particular authorities and functions of the foreign corporation, however, we cannot
determine whether it performs any sovereign functions or whether its functions are
instead “strictly commercial.” Therefore, we are unable to determine whether the
foreign corporation in question is a “foreign entity” under 18 U.S.C. § 207(f).

III.

Your office also has asked whether, even if the foreign corporation is not a
“foreign entity,” and even though the former Commerce official did not propose to
work on behalf of the foreign government, the prohibition in section 207(f)(1)
would nonetheless bar the proposed consulting engagement “if the [foreign

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government] is actively supporting the company’s efforts to influence the United
States Government” and has a financial interest in the matter to which the former
official’s activities would be addressed. Commerce Letter at 6. As we understand
the facts, the foreign government made public statements supporting the foreign
corporation’s offer to buy the U.S. company and urging Congress not to interfere
with the transaction. See id. at 7. The foreign government also had a financial
interest in the proposed transaction, because it would have partially financed the
deal. Id. Thus, the foreign government apparently had a common interest with the
foreign corporation in persuading U.S. government officials not to block the deal.
We understand your question to be whether, in light of the foreign govern-
ment’s financial interest and activities supporting the proposed deal, the former
official’s activities on behalf of the foreign corporation in connection with its bid
for the U.S. company would have been considered to “represent[]” or “aid[] or
advise[]” the foreign government itself, which is clearly a “foreign entity” under
section 207(f)(3). We answer this question in the negative. For the reasons given
below, we conclude that section 207(f) does not prohibit former government
officials from taking actions that are not undertaken on a foreign entity’s behalf,
regardless of whether the official’s actions benefit the foreign entity in some way.
Section 207(f)(1)’s one-year post-employment restriction applies where a for-
mer government official “represents a foreign entity” or “aids or advises a foreign
entity.” 18 U.S.C. § 207(f)(1). Two of the three actions prohibited by section
207(f)—representing and advising—necessarily require a relationship between the
former government official and a foreign entity. As OGE has said, a former
official “‘represents’ a foreign entity when he acts as an agent or attorney for or
otherwise communicates or makes an appearance on behalf of that entity to or
before any employee of a department or agency.” Summary of Post-Employment
Restrictions at 11. Similarly, a former official “advise[s] a foreign entity” when he
provides his counsel and expertise to the entity directly; he does not “advise” an
entity, as that word is normally used, by making unsolicited observations to the
public at large that prove helpful to the entity. See Webster’s Third New Interna-
tional Dictionary 32 (1993) (defining “advise” to mean “to give advice to,” and
providing as an example, “among those advising the president”); The Compact
Oxford English Dictionary 22 (1992) (“To offer counsel, as one of a consulting
body; to give advice . . . . To give counsel to, to counsel, caution, warn.”) (giving
several examples involving the direct provision of advice). Thus, with respect to
“represent[ing]” and “advis[ing],” section 207(f)(1) does not bar former govern-
ment officials from taking actions that incidentally benefit the foreign entity unless
they act on behalf of a foreign entity.
Conceivably, a person might “aid[] . . . a foreign entity” by taking actions that
benefit the entity without providing services on its behalf. But such an expansive
interpretation of “aids . . . a foreign entity” does not comport with the most natural
reading of the statute. In its statutory context, “aids” is a part of the phrase “aids or

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advises” in section 207(f)(1)(B) and is parallel to “represents” in section
207(f)(1)(A). Under the interpretive canon noscitur a sociis, “aids” should thus be
read in the context of its statutory neighbors “to avoid ascribing to [it] a meaning
so broad that it is inconsistent with its accompanying words, thus giving ‘unin-
tended breadth to the Acts of Congress.’” Gustafson v. Alloyd Co., 513 U.S. 561,
575 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).
Rather, as the Court has explained, where “several items in a list share an attrib-
ute,” the canon of noscitur a sociis “counsels in favor of interpreting the other
items as possessing that attribute as well.” Beecham v. United States, 511 U.S.
368, 371 (1994); see also James v. United States, 550 U.S. 192, 222 (2007)
(Scalia, J., dissenting) (under the canon of noscitur a sociis, “which of various
possible meanings a word should be given must be determined in a manner that
makes it ‘fit’ with the words with which it is closely associated”). Applying this
interpretive canon here, the term “aids,” like the terms “represents” and “advises,”
is best construed to encompass a category of services a person provides on behalf
of a foreign entity, not any activity that incidentally benefits the foreign entity.
The statutory history of 18 U.S.C. § 207(f) confirms our view that a former
senior official does not violate the restriction unless he or she provides services on
behalf of a foreign entity. As originally enacted in the Ethics Reform Act of 1989,
section 207(f)(1)(A) applied to any former senior official who “represents the
interests of a foreign entity before any officer or employee of any department or
agency.” Pub. L. No. 101-194, § 101(a), 103 Stat. 1716, 1722 (1989) (emphasis
added). In technical amendments to the act several months later, Congress struck
“interests of,” clarifying that the restriction applies only to a former official who
“represents a foreign entity.” Pub. L. No. 101-280, § 2(a)(8)(A)(i), 104 Stat. 149,
150 (1990). Although the 1990 Act amended only section 207(f)(1)(A) (the
“represents” prong) and not section 207(f)(1)(B) (the “aids or advises” prong)—
which did not contain the “interests of” language in the first instance—its deletion
of this language confirms that Congress did not intend section 207(f)(1) generally
to apply when a former official takes actions that benefit the interests of a foreign
entity but does not work on behalf of the foreign entity itself. 3 See Summary of
H.J. Res. 553, Technical Corrections to the Ethics Reform Act of 1989, 136 Cong.
Rec. 7933, 7937 (1990) (“The amendment clarifies that the restrictions in section
207(f) apply to the representation of a foreign entity and not to representation of
other parties on an issue in which the foreign entity may be interested.”); OGE
Letter at 4–5.

3
Our interpretation is consistent with OGE’s guidance on the similar restriction in 18 U.S.C.
§ 207(b) (2000), which prohibits certain former officials from “aid[ing] or advis[ing] any other person”
on certain matters for one year following government service. OGE has advised that this restriction
prohibits “[o]nly activities that are undertaken on behalf of ‘any other person,’” not any activity that
provides a benefit to any other person. Summary of Post-Employment Restrictions at 7.

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Under the interpretation of “aids or advises” we adopt, it is ultimately immate-
rial that the foreign government shared a common interest with the foreign
corporation in the proposed transaction or that it took action to promote that
interest. The relevant question under section 207(f)(1) is whether the proposed
activities would have been undertaken on behalf of a “foreign entity.” 4 Assuming
that the foreign corporation was not itself a “foreign entity,” and that the former
Commerce official’s proposed activities would not have been performed on behalf
of a foreign government, those activities would not have been prohibited by
section 207(f)(1).

IV.

Finally, your office has asked whether the proposed public relations and media
activities of the former Commerce official would constitute “represent[ing]” or
“aid[ing] or advis[ing]” the foreign corporation within the meaning of 18 U.S.C.
§ 207(f)(1). The proposed activities include “writing op-ed pieces and articles
about the proposed purchase of [the U.S. company] in major newspapers, maga-
zines, and trade journals; responding to reporters’ questions; and otherwise
disseminating information through the media in support of the purchase,” but
would not involve “communicating directly to Members of Congress or officials in
the Executive Branch or targeting . . . communications to those persons.” Com-
merce Letter at 7. Although these activities would not constitute representing or
advising a foreign entity under section 207(f)(1), we conclude that, if undertaken
by a former official with “the intent to influence a decision of any officer or
employee of any department or agency of the United States, in carrying out his or
her official duties,” 5 18 U.S.C. § 207(f)(1)(B), they would fall within the prohibi-
tion on “aid[ing]” a foreign entity.

4
We note that this rule may encompass a situation in which a former government official knows (or
is willfully blind to the fact) that the foreign corporation procuring his services is acting, not in its own
interests, but as an agent of the foreign government that owns or controls it. In that situation, although
the former official nominally works for the foreign corporation, it would seem that his work would
nevertheless be undertaken on behalf of the foreign government. See OGE Letter at 4. In such a case,
assuming that other elements of the statutory prohibition are present, the engagement may fall within
the scope of section 207(f)(1). Because we do not understand the situation your office has described to
raise this concern, we do not discuss it further.
5
Intent may be inferred from circumstantial evidence. See generally 1 Wayne R. LaFave, Sub-
stantive Criminal Law § 5.2, at 357 (2d ed. 2003) (explaining that a defendant’s state of mind “at [a]
particular earlier moment . . . must be gathered from his words (if any) and actions in the light of all the
surrounding circumstances. Naturally, what he does and what foreseeably results from his deeds have a
bearing on what he may have had in his mind”). Hence, publications and articles that are addressed to
members of Congress or Executive Branch officials or, more generally, that urge or discourage
government action in some way may be evidence of an intent “to influence a decision” of a government
official. See 18 U.S.C. § 207(f)(1)(B). Conversely, where a former official’s assistance is unrelated to

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An official does not “represent[]” an entity “before” any officer or entity of the
United States government, under the ordinary meaning of that phrase, by writing
and securing publication of op-ed pieces and articles. 18 U.S.C. § 207(f)(1)(A). As
OGE has explained, under section 207(f)(1)(A), a former employee “‘represents’ a
foreign entity when he acts as an agent or attorney for or otherwise communicates
or makes an appearance on behalf of that entity to or before any employee of a
department or agency.” Summary of Post-Employment Restrictions at 11 (empha-
sis added). As we have explained with respect to another statutory subsection of
section 207, a former official does not communicate or make an appearance before
an employee of a department or agency when that person publishes an editorial in
a newspaper that a government employee reads. See 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 n.6 (1993) (distinguishing the publica-
tion of an editorial in a newspaper from filing a brief in court on the ground that
the former is not “to a specific Department attorney”) (emphasis added). Thus, the
first prong of section 207(f)(1) does not prohibit the indirect communication that
occurs when a government official reads an editorial or article written by a former
official.
If undertaken with “the intent to influence a decision of any officer or employee
of any department or agency of the United States, in carrying out his or her official
duties,” however, the proposed activities would fall within the second prong of
section 207(f)(1), in our view, because they involve “aid[ing] . . . a foreign entity.”
18 U.S.C. § 207(f)(1)(B). Although, as explained above, we construe this prohibi-
tion to apply only to services performed on behalf of a foreign entity, the plain
meaning of “aid[]” (even with this limitation) is expansive: it means “to give help
or support to” someone. Webster’s Third New International Dictionary 44 (1993).
Consistent with this definition, OGE’s guidance states that a former employee
“aids or advises” a foreign entity “when he assists the entity other than by mak-
ing . . . a communication or appearance” on behalf of that entity to or before a
government body. Summary of Post-Employment Restrictions at 11. In other
words, a covered former official “aids or advises” a foreign entity under section
207(f)(1)(B) when he engages in any activity that would “give help or support to”
a foreign entity with the “intent to influence a decision of” a U.S. government
official, other than by providing the kind of assistance covered by section
207(f)(1)(A). Assuming that the requisite statutory intent is present, see supra
note 5, the public relations and media activities described in the Commerce Letter
would have fallen within the scope of this prohibition, because those activities
would have plainly “given help or support to” the foreign corporation in its efforts

potential government action, as it may be in editorials addressed to shareholders of a public company,
his conduct may be evidence that he lacked the requisite statutory intent.

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to influence the opinion of the shareholders of the U.S. target company, the public
at large, and government officials with regard to its bid for the company.
OGE’s written guidance does not take a position on whether section 207(f)(1)
covers public relations activities, although it indicates that section 207(f)(1)(B)
targets “‘behind the scenes’ assistance,” such as “drafting a proposed communica-
tion to an agency, advising on an appearance before a department, or consulting on
other strategies designed to persuade departmental or agency decisionmakers to
take certain action.” Summary of Post-Employment Restrictions at 11–12. Were
section 207(f)(1)(B)’s prohibition limited to such assistance, at least some portion
of the public relations and media activities proposed by the former Commerce
official would have fallen outside of section 207(f)(1)(B). Such a limitation
cannot, in our judgment, be reconciled with the breadth of the statutory language.
A former official acting with the intent to influence a decision of a U.S. govern-
ment official “aids” a foreign entity by undertaking the public relations and media
activities at issue here just as much as he “aids” that foreign entity by providing
“behind the scenes” assistance. The statutory language provides no basis for
distinguishing between these two activities.
The other post-employment restrictions in section 207, which predate section
207(f)(1) and expressly cover a narrower range of conduct, do not cast doubt on
our interpretation of section 207(f)(1). When Congress added section 207(f) to the
statute in 1989, it did not use the language of these pre-existing restrictions but,
instead, used the broader phrase “aids or advises” to describe the restricted
activities. As we have observed before, this difference in language “suggests
Congress had particular concern about representation of foreign entities,” and
correspondingly drafted section 207(f)(1)(B) to impose more expansive re-
strictions on such representation. Application of 18 U.S.C. § 207(f) to a Former
Senior Employee, 28 Op. O.L.C. 97, 99 (2004); see also Russello v. United States,
464 U.S. 16, 23 (1983) (“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion.’”) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th
Cir. 1972). Accordingly, the narrower scope of other post-employment bars in
section 207 provides no justification for reading limitations into section 207(f)(1);
rather, section 207(f)(1) must be construed according to its plain terms, which
encompass the sort of media-related activities described in your letter, if they are
undertaken with the requisite statutory intent.
Lastly, we do not believe that this conclusion raises serious constitutional ques-
tions. As an initial matter, we note that section 207(f)(1) prohibits media-related
activities on behalf of a foreign entity only incidentally, as part of its broader
prohibition on “aiding or advising” foreign entities with the intent to influence a
decision of an official or employee of the United States government. That is, the
purpose of section 207(f)(1) is not to restrict speech, but to prohibit former senior

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government officials from engaging in a range of conduct at the behest of foreign
entities in their first year after leaving the government. The statute bars speech
only insofar as it forms part of the conduct at which the statute is aimed. Although
this distinction does not remove a former government official’s speech from the
protection of the First Amendment, it may serve to distinguish section 207(f)(1)
from prohibitions that aim to suppress speech because of its content. See Rumsfeld
v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 62, 67–68 (2006)
(stating that “it has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language, either spoken, written, or
printed”). 6 As the Supreme Court has explained, “when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S.
367, 376 (1968). As explained below, section 207(f)(1)’s prohibition is clearly
justified by such an interest.
Even applying heightened constitutional scrutiny, section 207(f)(1)’s applica-
tion to the media-related activities at issue here would pass muster because the
prohibition furthers important government interests unrelated to the suppression of
speech, and any incidental restriction on speech is no greater than is necessary to
further those interests. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994).
Congress’s stated purpose in adding subsection (f)(1) to section 207 was “to
restore public confidence in the integrity of government officials.” Report of the
Bipartisan Task Force on Ethics on H.R. 3660, Government Ethics Reform Act of
1989, 135 Cong. Rec. 30,740, 30,740 (1989). The post-employment restriction on
working for foreign entities serves this interest in two ways. First, it diminishes the
possibility or perception that senior government officials may be influenced in the
performance of their duties by the prospect of future employment by foreign
entities. Second, it reduces the chance or the perception that senior government
officials may benefit improperly from public service by sharing information
learned during their time in government with foreign entities in return for remu-
neration. Taken together, these interests provide a sufficient justification for
section 207(f)(1). As courts have recognized, the government has an “undeniably
powerful” interest in ensuring that its employees do not “misuse or appear to
misuse” the power and influence they gain through government employment,
United States v. Nat’l Treas. Emps. Union, 513 U.S. 454, 472 (1995), and in

6
See also Wirzburger v. Galvin, 412 F.3d 271, 278 (1st Cir. 2005) (“Government actions that are
aimed at some goal other than restricting the conveyance of ideas are generally permissible, even if
they incidentally inhibit free speech.”); Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of N.Y.,
Inc., 968 F.2d 286, 295 (2d Cir. 1992) (“States can constitutionally regulate conduct even if such
regulation entails an incidental limitation on speech.”).

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certain circumstances, have held that interest to justify prophylactic limitations
that burden even core First Amendment rights. See Broadrick v. Oklahoma, 413
U.S. 601 (1973) (upholding prohibition on political activity by state government
employees); Civil Serv. Comm’n v. Letter Carriers, 413 U.S. 548 (1973) (uphold-
ing prohibition on political activity by federal government employees); United
Pub. Workers (C.I.O.) v. Mitchell, 330 U.S. 75, 102–03 (1947) (same).
Furthermore, the scope and duration of section 207(f)(1)’s prohibition is nar-
rowly targeted to serve the government’s interests: It applies only to senior former
government officials, and it lasts only for one year following government service.
Even during that period, moreover, to fall within section 207(f)(1)’s restriction, the
former official must act on behalf of a “foreign entity” and speak with the intent to
influence a decision of an official or employee of the United States government.
So long as a former official is not acting on behalf a foreign entity, section
207(f)(1) does not preclude him from speaking publicly about actions the federal
government should take in matters of interest to foreign entities. Accordingly,
even subjecting section 207(f)(1) to strict constitutional scrutiny, we think its
relatively narrow prohibition is adequately justified by the strong government
interest supporting it. We thus conclude that it may be applied to the media
activities described above consistent with the Constitution. 7

JOHN P. ELWOOD
Deputy Assistant Attorney General
Office of Legal Counsel

7
We note that section 207(f)(2) creates a “[s]pecial rule” that applies the substantive prohibitions of
section 207(f)(1) to a lifetime prohibition applicable to former U.S. Trade Representatives and Deputy
U.S. Trade Representatives. 18 U.S.C. § 207(f)(2). Whether the longer duration of section 207(f)(2)’s
prohibition on “aiding or advising” a foreign entity would raise constitutional questions, or warrant a
narrowing construction, when applied to the media-related activities at issue here is beyond the scope
of this opinion. Cf. Constitutionality of Statute Governing Appointment of United States Trade
Representative, 20 Op. O.L.C. 279, 280 (1996) (concluding that 19 U.S.C. § 2171(b)(3), which
provides that anyone “who has directly represented, aided or advised a foreign entity . . . in any trade
negotiation, or trade dispute, with the United States may not be appointed as United States Trade
Representative” is unconstitutional because, among other things, it establishes a qualification that is
“‘unattainable by a sufficient number to afford [the President] ample room for choice’” in nominations)
(quoting Civil-Service Commission, 13 Op. Att’y Gen. 516, 525 (1871)).

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