Applicability of 18 U.S.C. § 219 to Representative Members of
Federal Advisory Committees
Representative members of federal advisory committees — i.e., members who are chosen only to
present the views of a private interest— are not “ public officials” covered by 18 U.S.C. §219
September 15, 1999
M e m o r a n d u m O p in io n f o r t h e D e p u t y G e n e r a l C o u n s e l
D epa r tm en t o f t h e T reasury
This memorandum responds to your request for our opinion about the applica
bility of 18 U.S.C.A. §219 (West Supp. 1999) to representative members o f fed
eral advisory committees. We conclude that representative members of federal
advisory committees are not “ public officials” covered by §219. This memo
randum supersedes our 1991 memorandum addressing the same question. See
Applicability o f 18 U.S.C. § 2 1 9 to M embers o f Federal Advisory Committees,
15 Op. O.L.C. 65 (1991).
Congress enacted the Federal Advisory Committee Act (“ FACA” ), 5 U.S.C.
app. 2 (1972), to enhance the public accountability of federal advisory committees
and to reduce wasteful expenditures on them. See Public Citizen v. United States
D e p ’t o f Justice, 491 U.S. 440, 459 (1989). Towards those ends, the Act provides
that the membership of federal advisory committees should “ be fairly balanced
in terms of the points of view represented and the functions to be performed by
the advisory committee.” 5 U.S.C. app. 2, § 5(b)(2) & (c) (1994). In enacting
that provision, Congress contemplated that “ persons or groups directly affected
by the work of a particular advisory committee would have some representation
on the committee.” National Anti-Hunger Coalition v. Executive Comm., 711 F.2d
1071, 1074 n.2 (D.C. Cir. 1983) (citing S. Rep. No. 92-1098 (1972); H.R. Rep.
No. 92-1017 (1972)).1
Under 18 U.S.C.A. § 219(a), it is a criminal offense for a “ public official”
to act as an agent of a foreign principal required to register under the Foreign
Agents Registration Act of 1938 or as a lobbyist required to register under the
Lobbying Disclosure Act of 1995. Section 219(c) defines “ public official” to
include, as relevant here, ‘ ‘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 of any such department,
agency, or branch of Government.”
In our 1991 memorandum, we concluded that representative members of federal
advisory committees — defined in the memorandum as members who are “ chosen
for committee membership only to present the views of a private interest” — per-
'T h e FACA “ confers no cognizable personal nght to an advisory committee appointment,” however. N ational
Anti-Hunger Coalition, 711 F 2d at 1074 n 2
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Opinions o f the Office o f Legal Counsel in Volume 23
form their committee duties “ for” the United States and thus are “ public offi
cials” within 18 U.S.C. § 219(c). See 15 Op. O.L.C. at 66. We further concluded
the Emoluments Clause of the Constitution, U.S. Const, art. I, §9, cl. 8, independ
ently prohibits agents of foreign governments from serving on federal advisory
committees because committee members “ hold offices of profit or trust” within
the meaning of the Clause. See 15 Op. O.L.C. at 67-68.2
In later opinions, however, we receded from the position taken in the 1991
memorandum and recognized that “ not every member of an advisory committee
necessarily occupies an ‘Office o f Profit or Trust’ under the [Emoluments]
Clause.” Letter from Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, to Conrad K. Harper, Legal Adviser, Department of State (Mar.
1, 1994).3 W e ultimately concluded that representative members of federal
advisory committees do not hold offices of profit or trust because they “ owe
their loyalty to outside interests and are not ‘servants] of the Government.” ’
A pplicability o f Emoluments Clause to “R epresentative” Members o f Advisory
Com m ittees, 21 Op. O.L.C. 176, 177 (1997) ( “ Esserman Letter” ) (quoting Office
of Government Ethics Informal Opinion 82 x 22, at 330 (1989 ed.) (quoting
Memorandum of the President, “ Preventing Conflicts of Interest on the Part of
Special Government Employees” (May 2, 1963)).
For similar reasons, we now conclude that representative members of federal
advisory committees are not “ public officials” covered by 18 U.S.C. §219. The
definition of “ public official” in §219 is modeled on the definition of “ public
official” in the federal bribery statute, 18 U.S.C. §201 (1994), and is identical
in relevant respects. See 130 Cong. Rec. 1295 (1984) (remarks of Sen. Denton);
H.R. Rep. No. 99—797, at 22 (1986).4 In Dixson v. United States, 465 U.S. 482,
496 (1984), the Supreme Court held that a person is a “ public official” under
the bribery statute if “ the person occupies a position of public trust with official
federal responsibilities.” The Court explained that “ [t]o be a public official under
§ 201(a), an individual must possess some degree of official responsibility for car
rying out a federal program or policy.” Id. at 499.5
Representative members of advisory committees do not fit that definition. Such
representatives “ are chosen to present the views of private organizations and
interests.” Esserman Letter, 21 Op. O.L.C. at 176. Under well established prece
2 The Em oluments Clause provides that “ no Person holding any Office of Profit or Trust under [the United States],
shall, without the Consent o f the Congress, accept o f any present. Emolument, Office or Title, of any kind whatever,
from any King, Pnnce or foreign State ” U.S. C onst art. I, §9, cl.8.
3 We specifically determined that members o f the State Department’s Advisory Committee on International Eco
nomic Policy did not hold offices of profit o r trust under the Emoluments Clause See The Advisory Committee
on International Economic Policy, 20 Op. O L.C 123 (1996).
4 The term “ public official” in the bribery statute includes “ an officer o r employee or person acting for or on
behalf o f the United States, or any department, agency or branch o f Government thereof,. . in any official function,
under o r by authority o f any such department, agency or branch of Government.” 18 U S.C. § 2 0 l(a )(l) (1994).
5 A pplying that standard, the Court held that officers of a private, nonprofit corporation responsible for distributing
federal com m unity development block grants were public officials under the bnbery statute. See Dixson, 465 U.S
at 497
214
Applicability o f 18 U.S.C. §219 to Representative Members o f Federal Advisory Committees
dents, “ ‘[o]ne who is requested to appear before a Government department or
agency to present the views of a non-governmental organization or group which
he represents, or for which he is in a position to speak, does not act as a servant
of the Government.’ ” Id. (quoting Office of Government Ethics Informal Opinion
82 x 22, at 330 (1989 ed.) (quoting Memorandum of the President, “ Preventing
Conflicts of Interest on the Part of Special Government Employees” (May 2,
1963)). Indeed, “ [t]o characterize an industry representative or the like as a Fed
eral functionary is a contradiction in terms.” Office of Government Ethics
Informal Opinion 82 x 22, at 333-34.
The structure o f 18 U.S.C. §219 confirms that representative members of
advisory committees are not “ public officials” within the statute. Although
§ 219(a) makes it a criminal offense for a public official to act as an agent or
lobbyist for a foreign government, § 219(b) provides that an agent of a foreign
principal may serve “ as a special Government employee in any case in which
the head of the employing agency certifies that such employment is required in
the national interest.” As our 1991 memorandum recognizes, § 219(b) could not
be used to exempt representative members of advisory committees from the
prohibitions in § 219(a), because representatives are not considered federal
employees, special or otherwise. See 15 Op. O.L.C. at 67; see also, e.g., Office
of Government Ethics Informal Opinion 93 x 14, at 49 (June 24, 1993) (a rep
resentative member of an advisory committee “ is not considered an employee
or special Government employee for purposes of the conflict of interest statutes” ).
It would be quite anomalous, however, if an agent or lobbyist for a foreign prin
cipal could serve as a special Government employee but not as a representative,
because special Government employees are generally subject to more restrictive
standards than are non-employees. The natural conclusion is that there is no need
for a statutory mechanism to exempt representatives from the prohibitions in
§ 219(a) because those prohibitions simply do not apply.
We therefore conclude that representative members of federal advisory commit
tees are not “ public officials” subject to the prohibitions in 18 U.S.C. §219,
and reject the contrary view expressed in the 1991 OLC memorandum.
DANIEL KOFFSKY
Acting Deputy Assistant Attorney General
Office o f Legal Counsel
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