Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of

Cases in Which the Department of Justice Represents a Party

Section 207(c) of title 18 forbids a former senior em ployee of the Department o f Justice, for one year 

after his or her service ends, from signing a brief or making an oral argum ent in a case where the 

Department represents one of the parties

August 27, 1993

M e m o r a n d u m O pin io n fo r t h e D ir e c t o r

O ffic e o f G o v e r n m e n t Et h ic s

This memorandum responds to your request for our opinion whether 18 U.S.C. 

§ 207(c) prohibits former high-level Department of Justice officials, within one 

year after their service in the Department ends, from filing briefs or making oral 

arguments on behalf of parties other than the United States in cases where the Department represents one of the parties. We conclude that the statute forbids these 

activities.

I.

Section 207(c) of title 18 prohibits a senior employee, for one year after termination of service, from knowingly making a communication to or appearance before his former department in connection with a matter on which he seeks official 

action.1 This Office construed an earlier, similar version of § 207(c) as prohibiting 

former officials from signing briefs or delivering oral arguments in cases where the 

Department of Justice represents the United States. See, e.g., Memorandum for a 

United States Attorney, from Leon Ulman, Deputy Assistant Attorney General, 

Office of Legal Counsel, Re: Former U.S. Attorneys — 18 U.S.C. 207(c) (Oct. 22, 

1980); Letter for a Former Official, from Ralph W. Tarr, Acting Assistant Attorney 

General, Office of Legal Counsel at 3 (Sept. 20, 1985) (“Tarr M emo”); Letter for 

an Independent Counsel, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel at 5-6 (Apr. 29, 1987) (“Cooper I Memo”); Letter for an 

Independent Counsel from Charles J. Cooper, Assistant Attorney General, Office 

of Legal Counsel at 6 (Aug. 28, 1987) (“Cooper II M emo”). The Office of Government Ethics (“OGE”) reached the same conclusion. See The Informal Advisor)’

Letters and Memoranda and Formal Opinions o f the United States Office o f Government Ethics, 1979-1988, at 57 (1989) (Informal Advisory Letter No. 80 x 66,

1 Section 207(d) contains an additional restriction that applies to the most senior officials in the executive branch: such officials may not contact senior officials in other departments and agencies. Our reasoning 

applies to both § 207(c) and § 207(d).

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Opinions o f the Office o f Legal Counsel

Aug. 1, 1980) (“OGE Letter No. 80”); id. at 283 (Informal Advisory Letter No. 82 

x 13, Aug. 31, 1982); Supplements to the Informal Advisory Letters and M emoranda and Formal Opinions o f the Office o f Government Ethics, 62-63 (Informal 

Advisory Letter 89 x 20, Dec. 21, 1989).

Notwithstanding these prior positions, a memorandum to our files dated January 

14, 1993 (“January 1993 Memorandum”), memorialized advice that § 207(c) does 

not preclude former senior officials from briefing and arguing cases in which the 

Department is or represents a party. Your recent letter about the January 1993 

M emorandum argued that § 207(c) prohibits such advocacy, and that the amendments to § 207, which were passed in 1989, broadened, rather than narrowed, its 

scope. Letter for Daniel L. Koffsky, Acting Assistant Attorney General, Office of 

Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics 

(June 4, 1993). The question we now face is whether we should revert to our 

original interpretation of § 207(c) or should adopt the reasoning of the January 

1993 M emorandum.

II.

As first enacted in the Ethics in Government Act of 1978, Pub. L. No. 95-521, 

92 Stat. 1824, 1865 — and before the passage of the 1989 amendments, Ethics 

Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 1717-18 — § 207(c) 

o f title 18 prohibited a senior government employee (as defined in 18 U.S.C. 

§ 207(d)) from making any oral or written communication to his former agency 

within one year of the termination o f his employment, with the intent to influence 

the agency in connection with a particular matter in which the agency was interested.2

As we interpreted this version of § 207(c), it prohibited covered former officials 

of the Department of Justice from filing briefs or making oral arguments in cases 

where the Department represented a party. For example, as we stated in a 1987 

letter:

The no-contact rule of section 207(c) prohibits persons to whom 

it applies from making any oral or written communication with their 

former agency on behalf of anyone other than the United States, in 

connection with any matter pending in their former department, or 

in which their former agency has a direct and substantial interest.

The Department of Justice has historically construed the section to 

preclude covered former Department of Justice officials from sign2 The main elements of this version of § 207(c) were that a senior employee was prohibited from, (I) 

within one year of the termination of his employment, (2) “with the intent to influence,” (3) *‘mak[ing] any 

oral or written communication” (4) to his former department or agency (5) “in connection with any judicial, 

rulemaking, or other proceeding . or other particular matter” (6) “which is pending before such department 

or agency or in which such department or agency has a direct and substantial interest.” 18 U.S C § 207(c) 

(1988),

38
Application o f 18 U.S.C § 207(c)

ing briefs or delivering oral argument in court cases where the Department of Justice is representing the United States. We have not 

construed it to preclude aiding and assisting in a “behind the 

scenes” fashion in such cases.

Cooper II Memo at 6; accord Cooper I Memo at 5-6 (containing identical language).

OGE also adopted this position. In a letter dated August 1, 1980, it squarely 

addressed whether 18 U.S.C. § 207(c) prohibited a former official from representing a private client in a suit against his former department within one year after he 

left that department. OGE concluded that such representation would have the 

“unavoidable intent of attempting to influence and to persuade the defendant in the 

lawsuit,” and thus concluded that it would violate § 207(c). OGE Letter No. 80 at 

57-58; see also 5 C.F.R. § 2637 (1993) (OGE guidelines prohibiting such representation).3 Thus, this interpretation of § 207(c) was both longstanding and uniform in this Office and in OGE.4

III.

The January 1993 Memorandum points to three possible reasons for reading the 

present version of § 207(c) as not prohibiting a former official of this Department 

from filing a brief or making an oral argument in a case where the Department represents a party. First, § 207(a), which forbids communications or appearances as 

to certain matters on which former officials worked or which were under their official responsibility, specifically mentions communications to or appearances before 

courts, but § 207(c) refers only to contacts with agencies. Therefore, according to 

the January 1993 Memorandum, Congress did not intend § 207(c) to reach the filing of briefs or the making of oral arguments in court cases, even if the former of3 Moreover, in the only judicial opinion that addressed this issue, the court noted that § 207(c) “prevents 

the plaintiff [a former United States Attorney] . . from involving [himself] in any matters opposed by the 

Department of Justice for a period of one year.” Sullivan v Director, Office o f Personnel Management, No. 

81 C 3810 (N.D 111. Jan. 7, 1982), vacated as moot sub nom Devine v. Sullivan, 456 U.S. 986 (1982)

4 The January 1993 Memorandum suggests that two letters from this Office modified our interpretation 

of § 207(c), id at 4 n.8, but neither letter bears that construction In the first, we concluded that a former 

official was prohibited from representing a client by 18 U S C § 207(b)(i) which applied to matters that had 

been pending under the former official's responsibility. Letter for a Former Official, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel at 2 (Apr. 17, 1981) We reserved comment on 

whether § 207(c) would have forbidden such an official from appearing in court if he avoided contact with 

Department personnel Id. at 2 n.*. Because this statement was irrelevant to our conclusion and simply 

reserved the question, it does not constitute a modification of this Office's interpretation of § 207(c) The 

second letter cited in the January 1993 Memorandum is inapposite because it involved a former official’s 

representation in a case in which the Department was not a party but could potentially have participated as 

an amicus cunae Letter for a Former Official, from J Michael Lutng, Assistant Attorney General, Office of 

Legal Counsel (Oct. 24, 1990). We concluded that such representation would be permissible, but our reasoning included the crucial distinction that amici do not participate as parties and, under the rules of the 

court involved, the parties’ bnefs were not served on amici. Id at 2.

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Opinions o f the O ffice o f Legal Counsel

ficial’s agency was served with the brief or was present for the argument. Id. at 9-

10. Second, the amendments to § 207(c) in 1989 removed a previous reference to 

communications to agencies in connection with judicial proceedings. From this 

change, the January 1993 Memorandum inferred that the scope of the section had 

been narrowed. Id. at 11. Third, the January 1993 Memorandum argued that an 

attorney who files a brief or delivers an oral argument makes a communication to 

the court, not to any agency that is or represents a party to the case, id. at 3-7, and 

seeks the official action of the court but not of such an agency. Id. at 7-8.

A.

As the January 1993 Memorandum points out, § 207(a) specifically mentions 

communications to or appearances before courts and § 207(c) does not. But the 

argument that § 207(c) therefore does not reach a former official’s filing briefs or 

making oral arguments in a court case where his former agency represents a party, 

if valid, would have applied equally to the version of § 207 enacted in 1978. Like 

the version of § 207 now in effect, the law enacted in 1978 mentioned communications to courts in § 207(a) but not in § 207(c). Nevertheless, the settled interpretation of the 1978 version of § 207(c) was that it barred filing briefs or making oral 

arguments in court cases where the form er official’s agency was involved.

Congress’s decision in 1989 to reenact § 207 with this same structure buttressed 

the previous interpretations of § 207(c). In fact, an earlier proposal to amend 

§ 207 assumed that it extended to litigation. The proposal contained a specific 

exemption to allow former officials to represent clients in litigation against their 

agencies before the courts. S. 237, the “Integrity in Post Employment Act,” would 

have retained in its essentials the structure of § 207(c) (before the 1989 amendments), except that it would have excluded from its prohibitions “an attorney appearing in a judicial proceeding before a court of the United States.” S. Rep. No. 

100-101, at 20 (1987). The Senate Report on the section containing the exemption 

tated that

[t]his section permits an attorney, who would otherwise be forbidden by section 207(c) from making advocacy contacts in the Federal 

Government, to represent a client in a judicial proceeding before a 

court of the United States. In the absence of this provision, attorneys who take a high level Government position . . . could forfeit 

their only livelihood for the proscribed period after leaving Government service .... This section ensures that individuals in this 

position would not be able to make any advocacy contacts to any 

executive or legislative body, but could return to the courtroom on 

judicial business on behalf o f a client.

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Application o f 18 U.S C. § 207(c)

Id. at 29. As these materials reveal, § 207(c) prohibited lawyers from representing 

clients in judicial proceedings, which would encompass filing briefs and making 

oral arguments. Congress did not pass the proposed exemption but instead eventually reenacted § 207 with the same structure (in relevant respects) as before. Congress thus left in place the existing prohibition against filing briefs and making oral 

arguments in court cases.

Furthermore, when Congress amended and reenacted § 207, the administrative 

interpretation that § 207(c) covered filing briefs or making arguments in court 

cases was a matter of public knowledge. OGE’s 1980 opinion so holding had been 

published in 1987 in the Ethics in Government Reporter. We had set out our identical position in letters supplied to the Special Division of the District of Columbia 

Circuit that appoints Independent Counsel. By reenacting § 207 with a structure 

that was, in the relevant respect, identical to that of the earlier version, Congress 

can reasonably be seen as adopting this administrative construction. Cf. Cottage

Savings A ss’n v. Commissioner, 499 U.S. 554, 561 (1991) (“ “Treasury regulations 

and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.’” ”) (quoting United States v. Correll,

389 U.S. 299, 305-06 (1967) (quoting Helvering v. Winmill, 305 U.S. 79, 83 

(1938))).

B.

As a result of the 1989 amendments, the present version of § 207(c) prohibits a 

senior employee from, (1) within one year of the termination of his employment, 

(2) “with the intent to influence,” (3) “knowingly mak[ing] . . . any communication 

to or appearance before” (4) his former department or agency (5) “in connection 

with any matter” (6) “on which such person seeks official action by any officer or 

employee of such department or agency.” 18 U.S.C. § 207(c)(1).

According to the January 1993 Memorandum’s second argument for its new 

interpretation of § 207(c), the provision does not cover appearances before a court 

in which a former official’s agency is litigating because the 1989 amendments removed language under which § 207(c) covered communications to an agency “in 

connection with any judicial, rulemaking, or other proceeding, application, request 

for a ruling or other determination, contract, claim, controversy, investigation, 

charge, accusation, arrest, or other particular matter” and replaced it with the 

phrase “in connection with any matter.” Id. at 11. The removal of the language 

modifying the word “matter,” however, shows that the coverage of the provision 

was broadened, not narrowed. Congress made the section applicable to “any matter,” not just those matters specifically listed “or other particular matter[s].” The 

term “particular matter” had been construed as narrower than the word “matter.”

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Opinions o f th e Office o f L egal Counsel

In regulations issued in 1980, OGE had interpreted the “particular matter” language o f § 207(c) as excluding certain kinds of matters:

[Section 207(c)] does not encompass every kind of matter, but only 

a particular one similar to those cited in the statutory language, i.e.,

any judicial or other proceeding, application, request for a ruling or 

determination, contract, claim, controversy, investigation, charge, 

accusation, or arrest. . . . N ot included are broad technical areas 

and policy issues and conceptual work done before a program has 

become particularized into one or more specific projects.

5 C.F.R. § 2637.204(d) (1993); see also id. § 2635.402(b)(3) (stating that 

“particular matter” excludes certain kinds o f matters). Thus, the regulation indicated that “particular matter” has a narrower meaning than “matter.” In light of the 

natural meaning of the words and the published OGE interpretation of “particular 

matter,” the elimination of the reference to “judicial . . . proceeding^]” and “other 

particular matter[s]” does not support the new, narrower interpretation of § 207(c).

C.

The January 1993 Memorandum also relied on two other phrases in § 207(c). 

The “communications” covered by § 207(c) must be “fo . . . any officer or employee o f the department or agency” in which the former official served. Id.

(emphasis added). The January 1993 Memorandum argues that a brief is not directed “to” the Department but to the court. As with the structure of § 207, however, this language does not reflect any change from the 1978 version of the 

statute. The version of § 207(c) in effect before 1989 also required a communication “to” an officer or employee of the department or agency (or the department or 

agency itself). The settled interpretation of that language was that it covered briefs 

and arguments in a court case.

M oreover, the January 1993 M emorandum’s interpretation of “communication 

to” does not comport with the realities of litigation. Briefs and oral arguments are 

directed not only to the court but also to the opponent, as part of a dialogue between the parties. The January 1993 Memorandum acknowledges that § 207(c) 

probably prohibits some forms of this dialogue — for example, “[a] colloquy between counsel in the courtroom.” Id. at 13. But such statements are, like briefs 

and oral arguments, technically addressed to the court. The January 1993 Memorandum thus concedes that statements technically addressed to the court are also 

statements to opposing counsel, and this concession undercuts the conclusion of 

the January 1993 Memorandum. Written briefs and oral arguments, while more 

formal than some oral statements in court, are still elements of an exchange between counsel.

42
Application o f 18 U S C. § 207(c)

The 1989 amendments did add, as an element of the offense under § 207(c), that 

the former official must “seek official action” from his former department or 

agency. Whatever the effect of this change in other contexts, however, we do not 

believe that the new language alters the result here.

The reasoning of the prior opinions of this Office and OGE answers the question whether a former official who files a brief or makes an oral argument “seeks 

official action” from an agency that is or represents a party to the case. The prior 

opinions conclude that an attorney who takes such action is trying to influence the 

activities of the agency involved. As OGE stated in its 1980 letter, briefs and oral 

argument “have the additional unavoidable intent of attempting to influence and to 

persuade the defendant in the lawsuit. The role of the plaintiffs lawyer is in large 

part to have the defendant [Department] change its position as a result of what 

plaintiff argues in court.” OGE Letter No. 80 at 57-58;5 see Tarr Memo at 3 

(noting OGE’s reasoning in concluding that a former official cannot brief or argue 

cases within one year of termination). Under this reasoning, an attorney filing a 

brief or making an oral argument “seeks official action” from the officers and employees of an agency or department that is or represents a party to-the case.6

The representation of the United States in litigation is an official act of the attorney who works on the case. An essential part of this official act is the presentation of the government’s arguments, both orally and in written briefs. Although a 

former official’s briefs and arguments are formally addressed to the court, rules of 

procedure provide each party with an opportunity to rebut the other’s arguments 

and require that briefs be served on counsel for each party. See, e.g., Sup. Ct. R. 

25 (time for filing briefs); id. 29 (service of briefs); id. 28 (structure of oral argument); Fed. R. App. P. 31 (time for filing briefs and service of briefs); id. 34 (oral 

argument). The provision of a period during which an adverse party can formulate 

arguments constitutes a recognition — and expectation — that the parties respond 

to their opponents’ arguments. A litigator’s briefs and arguments seek to persuade 

the opponent that his view of the case is erroneous or, at the least, seek to frame the 

dispute and win concessions about the issues and principles that should lead to a

5 OGE's informal Advisory Opinion 80 x 6 gave two different grounds for concluding that a former 

official could not undertake the representation there1 first, that a communication directed to the court was 

also necessarily an attempt to persuade the adverse party (the official’s former agency), i d , and second, that 

on the facts of the case the former official would be likely to interact with officials of his former agency Id.

at 58. The first ground is sufficient to decide the issue here. As is noted above, however, a brief or oral 

argument also involves an interaction between counsel

6 The January 1993 Memorandum suggests that, with respect to the “official action’* requirement, there 

is no basis for distinguishing briefs from advocacy pieces in newspapers or correspondence to the Department on firm letterhead, if the former official’s name appears on that letterhead. Id at 6 & n 11 Briefs can 

be distinguished from these other forms of communication, however, because the latter are not nearly so 

focused and directed as communications in a court case. Bnefs are sent from the litigating counsel to named 

attorneys in the Department and thus constitute a communication between litigating attorneys, whereas the 

other forms of communication either are not from a specific attorney (e.g , inclusion of a name on letterhead) 

or are not to a specific Department attorney (e g , advocacy pieces in newspapers). Furthermore, most advocacy pieces are written on behalf of the author, and § 207(c)(1) penalizes only communications ”lon behalf of 

any other person ”

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Opinions o f th e Office o f L egal Counsel

decision by the court. Moreover, in multi-party cases in which the Department 

appears, a party’s briefs or arguments may be aimed, in part, at enlisting the United 

States’ support for at least some of that party’s positions, as against the other parties. Thus, briefing and oral argument, by their nature, not only request action by 

the court but also “seek official action” by the Department, in the form of modifications to or abandonment of arguments or claims. The 1989 amendments’ 

reference to such “official action,” therefore, does not affect the applicability of 

§ 207(c) to briefing and oral argument.

Finally, the legislative history of the 1989 amendments does not indicate any 

intent to narrow the application of § 207(c), by the addition of the “seeks official 

action” language or otherwise, in situations where a former official submits a brief 

or makes an argument to a court. In fact, the only intent expressed — and the apparent impetus for the amendments to § 207(c) — was Congress’s rejection of the 

conclusion reached by the United States Court of Appeals for the District of Columbia Circuit in United States v. Nofziger, 878 F.2d 442, cert, denied, 493 U.S. 

1003 (1989), that an element of the offense was that the defendant knew of all the 

facts making his conduct illegal.7 There is no suggestion in the legislative history 

that Congress intended to narrow the scope of § 207(c).8

IV.

Thus, before this year, this Office interpreted § 207(c) to prohibit former senior 

officials from briefing and arguing cases in which the Department is or represents a 

party. OGE, too, consistently held this view. There is no persuasive evidence that 

Congress intended that the amendments to § 207(c) would produce a different result. Moreover, application of § 207(c) to the briefing and arguing of cases comports with the language and history o f the statute.9

7 Senator Levin emphasized this concern, stating that

[i]n the recently decided case involving former Presidential aide Lyn Nofziger, the court of appeals held that under the current law, the word ‘‘knowing ' modified all the elements of the offense including the provision that the particular matter was pending before the subject 

department or agency or that the agency had a direct and substantial interest m the particular 

matter That judicial interpretation does not reflect congressional intent We correct that misinterpretation in this bill by including a knowing standard only for the act of making the communication with the intent to influence and state that the offense is committed if the former employee 

seeks official action by an agency or department employee There is no requirement, here, that 

the former employee know that the particular matter on which he or she is lobbying was a matter 

of interest or was pending before (he subject agency or department Thus, we are able to set the 

record straight on this matter.

135 Cong. Rec 29,668 (1989).

8 See id (Section-by-section analysis describing new version of § 207(c) as “similar to current law” and 

failing to indicate any changes in scope of § 207(c).)

9 The January 1993 Memorandum suggested that the rule of lenity is relevant because § 207 is a penal 

statute. Id. at 12. Even assuming that the rule would otherwise be pertinent, it applies only if “after a court 

has ‘'‘seize[d] every thing from which aid can be derived’*' it is still ‘left with an ambiguous statute.”' 

Chapman v. United States, 500 U S 453, 463 (1991) (quoting United Slates v. Bass, 404 U.S. 336, 347 

(1971) (quoting United States v. Fisher, 6 U S (2 Cranch) 358, 386 (1805))); see Moskal v. United States,

44
Application o f 18 U.S.C. § 207(c)

All of these factors militate against the new interpretation set forth in the January 1993 Memorandum. Accordingly, we conclude that the January 1993 M emorandum was in error and instead return to the interpretation of § 207(c) that this 

Office took before that memorandum was written.

DANIEL L. KOFFSKY 

Acting Deputy Assistant Attorney General

Office o f Legal Counsel

498 U S 103, 108 (1990) (,l[W]e have always reserved lenity for those situations in which a reasonable 

doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative 

history, and motivating policies' of the statute") (quoting B ijuhu v United Slates, 447 U S 381, 387 

(1980)) The rule of lenity could not apply here because the language and history of § 207(c) show that it 

prohibits former officials from briefing and arguing cases against the United States, and no ambiguity remains.

45