97 

Application of 18 U.S.C. § 207(f) to a 

Former Senior Employee

Title 18, section 207(f) of the U.S. Code prohibits a former senior employee of an executive branch 

department from representing a foreign entity before members of Congress within one year of the 

termination of his employment. 

June 22, 2004 

MEMORANDUM OPINION FOR THE ACTING DIRECTOR

OFFICE OF GOVERNMENT ETHICS

You have requested our opinion whether 18 U.S.C. § 207(f) bars a former 

senior employee of an executive branch department*

 from representing a foreign 

entity before members of Congress within one year of the termination of his 

employment.1

 For the reasons stated below, we conclude that the statute does 

prohibit such representation. 

In the Ethics in Government Act of 1978, Congress substantially amended the 

conflict of interest laws applicable to federal employees in an attempt “to preserve 

and promote the integrity of public officials and institutions.” Pub. L. No. 95-521, 

92 Stat. 1824. Among these conflict of interest laws are various restrictions on the 

activities of government officers and employees after they leave government 

service. These “post-employment” restrictions are set out in 18 U.S.C. § 207 (2000 

& Supp. III 2004). Some post-employment restrictions apply solely to former 

executive branch personnel, see, e.g., 18 U.S.C. § 207(a), (c), (d), while others 

apply to former members of Congress and officers and employees of the Legislative Branch, see, e.g., 18 U.S.C. § 207(e). Subsection (f), added by the Ethics 

Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, imposes certain restrictions relating to representation of foreign entities and applies to former officers and employees of both branches. 

Section 207(f)(1) provides: 

Restrictions.—Any person who is subject to the restrictions contained in subsection (c), (d), or (e) and who knowingly, within 1 year 

after leaving the position, office, or employment referred to in such 

subsection— 

 *

 Editor’s Note: We are not identifying in the published version of this opinion the executive branch 

department that employed the individual who is the subject of the opinion. 1 See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from 

Marilyn L. Glynn, Acting Director, Office of Government Ethics (Apr. 6, 2004). We also solicited and 

obtained the views of the former employing department on this question. See Letter for Renée Lettow 

Lerner, Deputy Assistant Attorney General, Office of Legal Counsel (May 12, 2004). The Criminal 

Division of the Department of Justice concurs with the conclusion reached in this memorandum. 
Opinions of the Office of Legal Counsel in Volume 28 

98 

(A) represents a foreign entity before any officer or employee of 

any department or agency of the United States with the intent to 

influence a decision of such officer or employee in carrying out 

his or her official duties . . . 

shall be punished as provided in section 216 of this title. 

18 U.S.C. § 207(f)(1).2

 The question we must decide, therefore, is whether members of Congress are “officer[s] or employee[s] of any department or agency of the 

United States.” 

In the absence of any context indicating otherwise, we would ordinarily construe the phrase “department or agency of the United States” to refer to entities 

within the Executive Branch. See, e.g., Hubbard v. United States, 514 U.S. 695, 

699 (1995) (noting that the term “department” is commonly used “to refer to a 

component of the Executive Branch”). However, section 207(i) provides as 

follows: 

Definitions.—For purposes of this section— 

(1) the term “officer or employee”, when used to describe the person to whom a communication is made or before whom an appearance is made, with the intent to influence, shall include— 

(A) in subsections (a), (c), and (d), the President and the Vice 

President; and 

(B) in subsection (f), the President, the Vice President, and 

Members of Congress. 

18 U.S.C. § 207(i) (emphasis added). Congress has thus expressly indicated its 

intent to bar individuals who have recently held senior government positions from 

lobbying its members on behalf of foreign entities. Unless the term “department or 

agency of the United States” is read to encompass the Legislative Branch, the 

inclusion of members of Congress in this provision would lack meaning or 

application. See TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal 

principle of statutory construction’ that ‘a statute ought, upon the whole, to be so 

construed that, if it can be prevented, no clause, sentence, or word shall be 

superfluous, void, or insignificant.’”) (quoting Duncan v. Walker, 533 U.S. 167, 

174 (2001)); United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is our 

 2

 Section 216 provides both civil and criminal penalties for conduct violating section 207. 18 U.S.C. 

§ 216 (2000). 
Application of 18 U.S.C. § 207(f) to a Former Senior Employee 

99 

duty ‘to give effect, if possible, to every clause and word of a statute.’”) (quoting 

Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)).3

In addition, Congress has provided a statutory definition of the term “department,” applicable generally to title 18, that explicitly permits a broad interpretation that would extend to the Legislative Branch. “As used in this title: The term 

‘department’ means one of the executive departments enumerated in section 1 of 

Title 5, unless the context shows that such term was intended to describe the 

executive, legislative, or judicial branches of the government.” 18 U.S.C. § 6 

(2000) (emphasis added). Here, the inclusion of “Members of Congress” within 

the term “officer or employee of any department . . . of the United States” supports 

the conclusion that “department,” at least in the context of section 207(f), must 

include the Legislative Branch. In Hubbard, by contrast, the Supreme Court found 

“nothing in the text of [18 U.S.C. § 1001, prohibiting the making of false statements “in any matter within the jurisdiction of any department or agency of the 

United States”] . . . that even suggests . . . that the normal definition of ‘department’ was not intended.” 514 U.S. at 701 (overruling United States v. Bramblett, 

348 U.S. 503 (1955), in which the Court had held that the term “department” in 

section 1001 included the Legislative Branch). 

Our conclusion derives further support from the structure of section 207. The 

scope of section 207(f), limiting representation of foreign entities, is broader than 

that of certain other subsections respecting both those who may not lobby and 

those who may not be lobbied. The broader scope of section 207(f) suggests 

Congress had particular concern about representation of foreign entities. As noted 

above, section 207(f) applies to individuals subject to the restrictions in subsections (c), (d), and (e), and therefore covers former officers and employees of both 

the Executive and Legislative Branches. Section 207’s definitional provision 

likewise defines the prohibited “targets” of lobbying activity more broadly with 

respect to subsection (f) than it does with respect to subsections (a), (c), and (d), 

which apply only to former executive branch personnel. For purposes of subsections (a), (c), and (d), “the term ‘officer or employee,’ when used to describe the 

person to whom a communication is made or before whom an appearance is made, 

with the intent to influence,” includes “the President and the Vice President.” 18 

U.S.C. § 207(i)(1). For purposes of subsection (f), as explained above, the term 

also includes “Members of Congress.” Id. § 207(i)(1)(B). There can be little doubt, 

therefore, that section 207(f) prohibits representation of foreign entities before 

Congress as well as before executive branch agencies.4

 3

 Limiting application of the phrase “Members of Congress” to members serving on commissions 

that constitute “agencies,” as your letter suggests, would not eliminate this problem but would rather 

merely render the phrase redundant. 4

 There is legislative history that could be read to suggest that Congress intended to proscribe 

representation of foreign entities only before the branch of government in which a particular individual 

formerly served. We do not find the legislative history persuasive on this point. Congress added the 
Opinions of the Office of Legal Counsel in Volume 28 

100 

Your letter suggests that the term “department” in section 207(f) should be 

interpreted in a manner consistent with the interpretation of that term in other parts 

of section 207 and other conflict of interest laws.5 See, e.g., Comm’r of Internal 

Revenue v. Keystone Consol. Indus., 508 U.S. 152, 159 (1993) (“It is a ‘normal 

rule of statutory construction’ . . . that ‘identical words used in different parts of 

the same act are intended to have the same meaning.’”) (citations and quotations 

omitted). But “the presumption is not rigid,” and yields to “the cardinal rule that 

‘[s]tatutory language must be read in context.’” Gen. Dynamics Land Sys. v. Cline, 

540 U.S. 581, 596 (2004) (citations and quotations omitted) (finding that the term 

“age” in the Age Discrimination in Employment Act varies in meaning according 

to context). As discussed above, section 207(i) expressly differentiates between 

 

definitional sections 207(i)(1)(A) and (B), quoted in the text, in the Ethics Reform Act of 1989: 

Technical Amendments, Pub. L. No. 101-280, 104 Stat. 149 (1990). The explanation for the technical 

amendments states: “Definitions—The amendment specifies that the term ‘officer or employee’, when 

used to describe the person to whom a communication is made, includes the President and Vice 

President with respect to restrictions on former executive branch officials, and includes members of 

Congress with respect to restrictions on the Legislative Branch.” Public Law No. 101-280, Ethics 

Reform Act of 1989: Technical Amendments, Detailed Explanation Prepared by House and Senate 

Legislative Counsel, 1990 U.S.C.C.A.N. 169. This language in the explanation does not alter our 

analysis. The term “includes” in this sentence of the explanation is clearly not meant to be exclusive. 

Many other people besides those specifically listed in the explanation may not be contacted, see, e.g., 

18 U.S.C. § 207(d)(2)(A). In the case of subsection (f), these people include employees of branches 

other than the one the restricted person formerly served in. We therefore do not read the explanation to 

suggest that Congress intended to proscribe representation of foreign entities only before the branch of 

government in which a restricted person formerly served. Even if it does, the text of the statute, which 

is controlling, provides no basis for drawing such a distinction. Both those who are restricted from 

lobbying and those who may not be lobbied are clearly specified for each subsection. Even if one 

construes the term “department” narrowly, section 207(f) would bar former legislative employees from 

lobbying executive branch agencies, and thus precludes a “same branch” interpretation. If the term 

“officer or employee” includes members of Congress for purposes of section 207(f), it must do so for 

all individuals covered by that section. Cf. Hubbard, 514 U.S. at 701 (18 U.S.C. § 6 requires courts to 

examine the text of a statute, not its legislative history); id. at 708 (“Courts should not rely on 

inconclusive statutory history as a basis for refusing to give effect to the plain language of an Act of 

Congress, particularly when the Legislature has specifically defined the controverted term.”). 5

 You cite, for example, two previous opinions of this Office interpreting other conflict of interest 

provisions. See Conflicts of Interest—18 U.S.C. § 207—Former Executive Branch Officer, 3 Op. 

O.L.C. 373 (1979); Applicability of 18 U.S.C. § 205 to Union Organizing Activities of Department of 

Justice Employee, 5 Op. O.L.C. 194 (1981). Neither of these opinions, however, provides guidance on 

the interpretation of the term “department” in section 207(f). In the 1979 opinion, we interpreted 18 

U.S.C. § 207(a) not to bar legislative lobbying by a former Executive Branch official after concluding 

that legislation would not generally fall into the proscribed category of “particular matters involving 

specific parties.” 3 Op. O.L.C. at 376. In the 1981 opinion, we interpreted 18 U.S.C. § 205 (which prohibits certain representational activities by current employees before “any department, agency, [or] 

court”) as barring representation before the Office of the Architect of the Capitol, which we concluded 

fell within the “expansive” definition of “agency” in title 18. 5 Op. O.L.C. at 194–95. We acknowledged that the legislative history of the conflict of interest laws (which at that time did not include 

section 207(f)) suggested that Congress did not intend for section 205 to prohibit representational 

activities before Congress itself, but determined that “Congress did not intend to limit the term 

‘agency’ to entities within the executive branch.” Id. at 195. 
Application of 18 U.S.C. § 207(f) to a Former Senior Employee 

101 

section 207(f) and other provisions of section 207, and thus provides a plain 

textual basis for giving “department” a broader meaning in section 207(f) than it 

might have in other conflict of interest provisions.6

We therefore conclude that 18 U.S.C. § 207(f) bars a former senior executive 

branch employee from representing a foreign entity before Congress within one 

year of leaving his position. 

 RENÉE LETTOW LERNER 

 Deputy Assistant Attorney General 

 Office of Legal Counsel 

 6

 Nor do we believe that the “rule of lenity” requires a different conclusion. Cf. Jones v. United 

States, 529 U.S. 848, 858 (2000) (“We have instructed that ‘ambiguity concerning the ambit of 

criminal statutes should be resolved in favor of lenity’”) (quoting Rewis v. United States, 401 U.S. 808, 

812 (1971)). Resort to that rule is unnecessary in this instance, since we do not find the statute 

ambiguous. The rule of lenity applies only where, “after seizing everything from which aid can be 

derived, . . . we can make no more than a guess as to what Congress intended.” Holloway v. United 

States, 526 U.S. 1, 12 n.14 (1999) (internal quotations and citations omitted); see also Muscarello v. 

United States, 524 U.S. 125, 138–39 (1998) (“The simple existence of some statutory ambiguity . . . is 

not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.”); 

Chapman v. United States, 500 U.S. 453, 463 (1991) (“rule of lenity . . . is not applicable unless there 

is a ‘grievous ambiguity or uncertainty in the language and structure of the Act’”). The statute at issue 

here does not present any “grievous ambiguity” that cannot be resolved using ordinary tools of 

statutory construction.