b"September 24, 1979\n\n79-70\n\nMEMORANDUM OPINION FOR THE LEGAL\nADVISER, DEPARTMENT OF STATE\nConflicts of Interest\xe2\x80\x9418 U.S.C. \xc2\xa7 207\xe2\x80\x94Former\nExecutive Branch Officer\n\nThis memorandum responds to your June 5, 1979 request for our opinion\non the applicability o f 18 U.S.C. \xc2\xa7 207 to Mr. A, a former Department of\nState officer who has been approached by the Government of the Republic\no f Panama to represent Panam a in connection with legislation being consid\xc2\xad\nered by Congress to implement the 1977 Panam a Canal Treaty. As ex\xc2\xad\nplained below, we conclude that, although \xc2\xa7 207(a) bars Mr. A from\nrepresenting the Government of Panam a before the other branches of Gov\xc2\xad\nernment in this matter, it does not bar him from undertaking legislative ac\xc2\xad\ntivity on Panam a\xe2\x80\x99s behalf.\nI. Facts\nThe facts, as we understand them, concerning Mr. A \xe2\x80\x99s relationship to\nthe original Panam a treaty negotiating process appear in a July 13, 1979\nmemorandum (\xe2\x80\x9c the m em orandum \xe2\x80\x9d ) submitted to us by his firm. As\nstated in the memorandum, Mr. A served from late 1974 until early 1976\nas an Assistant Secretary o f State, and thereafter, until December 31,\n1976, as an Under Secretary o f State. At that time, negotiations with\nrepresentatives o f Panam a concerning the treaty were \xe2\x80\x9c the direct and sole\nresponsibility\xe2\x80\x9d o f Ambassador Ellsworth Bunker. Mr. A played no part in\nthe negotiations. According to the memorandum, Ambassador B unker\xe2\x80\x99s\noffice was not itself under Mr. A \xe2\x80\x99s supervision, although the\nAmbassador\xe2\x80\x99s negotiating staff included personnel who were under\nMr. A \xe2\x80\x99s supervision.\nAmbassador Bunker\xe2\x80\x99s negotiating instructions from the President were\ndeveloped through a process o f interagency consultation. Mr. A partici\xc2\xad\npated with others in the development o f Department o f State policy posi\xc2\xad\ntions on the issues under consideration. According to the memorandum:\n\xe2\x80\x9c The primary issues considered in the treaty negotiations during Mr. A \xe2\x80\x99s\n373\n\n\x0ctenure in the government were procedural issues\xe2\x80\x94i.e., issues relating tc\nthe pace o f the negotiations.\xe2\x80\x9d In this connection, he accompanied other\nofficials on a visit to Panam a, and participated in discussions with General\nTorrijos on the pace o f negotiations. He also participated in conveying to\nGeneral Torrijos the support o f the Joint Chiefs o f Staff for the two\nPanam a treaties.\nMr. A, both during and since his Government service, has testified\nbefore both Houses o f Congress and has spoken publicly about the signifi\xc2\xad\ncance o f the Panam a negotiations to United States relations with Latin\nAm erica.1 He met with a num ber o f Senate and House Members when\nCongress had before it several resolutions designed to stop the negotia\xc2\xad\ntions while they were in progress. Further, during his Government service\nand for several m onths thereafter, Mr. A served as a member o f the Board\no f Directors o f the Panam a Canal Company, although, according to the\nmemorandum, neither the Com pany nor its board played any role with\nrespect to the treaties or implementing legislation.\nAccording to the m em orandum , Mr. A, while in Government service,\nobtained \xe2\x80\x9c relatively little confidential inform ation on the Panam a Canal\ntreaties.\xe2\x80\x9d The m em orandum states that he possesses no confidential infor\xc2\xad\nmation gained while he was in the Government that is relevant to the im\xc2\xad\nplementing legislation now under consideration by Congress.\nII.\n\nDiscussion\n\nW hether Mr. A may lawfully represent Panam a during Congress\xe2\x80\x99 con\xc2\xad\nsideration o f legislation implementing the Panam a Canal Treaty depends\non the applicability o f 18 U .S.C . \xc2\xa7 207 (1976).2 In pertinent part, \xc2\xa7 207\nprovides criminal sanctions for:\n(a) Whoever, having been an officer or employee o f the ex\xc2\xad\necutive branch o f the United States Government * * * after\nhis employment has ceased, knowingly acts as agent or at\xc2\xad\ntorney for anyone other than the United States in connection\nwith any judicial or other proceedings, application, request for\na ruling or other determ ination, contract, claim, controversy,\ncharge, accusation, arrest, or other particular matter involving\na specific party or parties in which the United States is a party\nor has a direct and substantial interest and in which he par\xc2\xad\nticipated personally and substantially as an officer or\n\n'In connection with Mr. A \xe2\x80\x99s public speeches in support o f the treaties since he left the\nGovernm ent, the State D epartm ent has informed us that it furnished him with material that\nwas otherwise publicly available, but that he was acting in a personal capacity in these ef\xc2\xad\nforts. We further understand that Mr. A was one o f several experts, both pro and con, con\xc2\xad\nsulted by a Senator as he developed his position on treaty ratification; again, the Departm ent\no f State furnished Mr. A with certain otherwise publicly available inform ation in connection\nwith his activities.\n\xe2\x80\x9cExcept as otherwise noted, references in this opinion to 18 U .S.C . \xc2\xa7 207 apply to that\nstatute as written before July 1, 1979. Section 207 has now been am ended, effective July 1,\n1979, by the Ethics in G overnm ent Act o f 1978, title V, Pub. L. 95-520, 92 Stat. 1864.\n\n374\n\n\x0cemployee, through decision, approval, disapproval, recommen\xc2\xad\ndation, the rendering o f advice, investigation, or otherwise,\nwhile so employed. * * *\nWhether \xc2\xa7 207(a) bars Mr. A \xe2\x80\x99s proposed efforts on behalf o f Panam a thus\ndepends on whether proceedings involving implementation o f the Treaty\nwould, in any respect, be covered by the statute and, if they would, whether\nthe statute reaches legislative activity in connection with this matter.\nA.\n\nTreaty Implementation Covered by \xc2\xa7 207(a)\n\nAlthough we have carefully considered the views o f Mr. A \xe2\x80\x99s firm on\nthese questions, we conclude, first, that the implementation o f the\nPanam a Canal Treaty, at least as it may involve judicial proceedings or\nproceedings before the executive branch o f Government, is a \xe2\x80\x9c particular\nm atter\xe2\x80\x9d involving specific parties in which the United States is a party and\nhas a direct and substantial interest and in which Mr. A participated per\xc2\xad\nsonally and substantially as an officer o f the U.S. Government.\nFirst, although Mr. A did not actually participate in treaty negotiations,\nhe did participate in formulating the Department o f State\xe2\x80\x99s\xe2\x80\x94and thereby\nthe United States\xe2\x80\x99\xe2\x80\x94position with respect to the treaty. Such activities\nwould be encompassed within the terms \xe2\x80\x9c recom m endation\xe2\x80\x9d and \xe2\x80\x9c render\xc2\xad\ning o f advice,\xe2\x80\x9d which are among the enumerated methods o f participation\ncovered by the statute. It is irrelevant that many other Government offi\xc2\xad\ncials participated, or, given the overall significance o f the treaties, that the\npolicy issues during Mr. A \xe2\x80\x99s tenure were, in some sense, \xe2\x80\x9c procedural.\xe2\x80\x9d He\nheaded an office within the Department o f State that was keenly interested\nin the negotiations. The policy input o f a person in this position must be\nregarded as \xe2\x80\x9c substantial participation\xe2\x80\x9d under \xc2\xa7 207(a).\nWe further conclude that the treaties with Panam a constitute a \xe2\x80\x9c par\xc2\xad\nticular m atter involving a specific party or parties.\xe2\x80\x9d Unlike general legisla\xc2\xad\ntion or rulemaking, treaties are intended to affect specific participating\nparties, namely, their signatories. In form, treaties closely resemble con\xc2\xad\ntracts, which are expressly covered by the statute. They are signed after the\ntype o f quasi-adversarial proceedings or negotiations that precede or sur\xc2\xad\nround the other types o f \xe2\x80\x9c particular m atters\xe2\x80\x9d enumerated in \xc2\xa7 207(a). The\nphrase \xe2\x80\x9c involving a specific party or parties\xe2\x80\x9d has been read to limit the\nsection\xe2\x80\x99s concern to \xe2\x80\x9c discrete and isolatable transactions between iden\xc2\xad\ntifiable parties.\xe2\x80\x9d B. Manning, Federal Conflict o f Interest Law 204 (1964).\nSuch a characterization aptly describes the treaty negotiation process.\nFinally, we conclude that any proceeding involving the executive branch\nof Government, the branch which negotiated the treaty, or any judicial pro\xc2\xad\nceeding that concerns the implementation of the treaty would be the same\nmatter or \xe2\x80\x9c particular matter\xe2\x80\x9d as the negotiation with which Mr. A was\nassociated. From a review o f the treaty, it is evident that both parties\nunderstood the necessity o f subsequent steps by the United States to set the\nde facto terms, as well as the tone, o f the two nations\xe2\x80\x99 agreement. Articles III\n375\n\n\x0cand IV o f the Panam a Canal Treaty, \xe2\x80\x9c Canal Operation and\nM anagement\xe2\x80\x9d and \xe2\x80\x9c Protection and Defense,\xe2\x80\x9d respectively, leave the\nUnited States free to exercise its responsibilities under the treaty as it\nchooses, subject only to general principles and requirements. 77 Dept, of\nState Bull. 485-488 (1977). Any \xe2\x80\x9c judicial o r other proceeding, appli\xc2\xad\ncation, request for a ruling or other determ ination, contract, claim, con\xc2\xad\ntroversy, charge, accusation, arrest, or other particular m atter\xe2\x80\x9d specif\xc2\xad\nically involving the Governments o f Panam a and the United States as\nparties, concerning the implementation o f the treaty, must be viewed as\npart o f the last stage o f the single negotiating or diplomatic process by\nwhich the nations reach their final agreement.\nB.\n\nLegislative Activities Excluded from \xc2\xa7 207(a)\n\nThe question remains, however, whether\xe2\x80\x94notwithstanding our conclu\xc2\xad\nsion that a proceeding that concerns implementation o f the Panam a Canal\nTreaty and involves specific parties would be part o f the same particular\nm atter involving specific parties with respect to which Mr. A had personal\nand substantial responsibility while in office\xe2\x80\x94\xc2\xa7 207(a) is inapplicable\nbecause Mr. A \xe2\x80\x99s proposed activities would solely involve Congress\xe2\x80\x99 con\xc2\xad\nsideration o f proposed legislation. On this issue, we agree with Mr. A \xe2\x80\x99s\nfirm th at wholly legislative activity is not barred by \xc2\xa7 207(a).\nW hether \xc2\xa7 207(a) applies to legislative activity is not clearly settled either\nby the language or history o f the statute. None o f the kinds o f proceedings\nspecified in that statute is legislative in nature, and it is generally settled\nthat proceedings, such as general rulemaking, that do not typically involve\nspecific parties, are outside the ambit o f \xc2\xa7 207(a). See Attorney General\xe2\x80\x99s\nM em orandum Re the Conflict o f Interest Provisions o f Public Law\n87-849, 18 U .S.C . 201 note (1976). It would appear reasonable to con\xc2\xad\nclude, however, that some legislation, e.g., private bills, would appear to\nbe particular matters involving specific parties as to which application of\nthe \xc2\xa7 207(a) bar would advance the policy goals o f the Act. The question\no f the statute\xe2\x80\x99s scope is, therefore, a close one.\nWe nonetheless conclude that legislative activity is not within the scope\no f \xe2\x80\x9c particular m atters\xe2\x80\x9d covered by \xc2\xa7 207(a). Assuming that, in theory,\ncertain kinds o f legislation could justly be described as proceedings \xe2\x80\x9c in\xc2\xad\nvolving a specific party or parties,\xe2\x80\x9d most legislation cannot. To bring\nwithin the ambit o f \xc2\xa7 207(a) those legislative activities that might be\ndeemed to fall within the specified kinds o f proceedings would require the\ndrawing o f some line to separate the exceptional categories o f legislation\nfrom the typical legislative proceedings that more closely resemble general\nrulemaking. Congress has not, in \xc2\xa7 207(a), made any attem pt to draw such\na line. It would be inappropriate, in construing a criminal statute, to infer\na nonobvious distinction between permissible and proscribed activity that\nCongress has not squarely considered and that would render uncertain the\n376\n\n\x0capplicability o f the criminal sanctions involved.3 This is especially so in an\narea where the activities proscribed by statute, are not among those that led\nCongress to enact the prohibition.\nIn this connection, although the acts o f a subsequent Congress do not\ncontrol the interpretation o f an earlier statute, it must be noted that C on\xc2\xad\ngress, in 1978, specifically amended \xc2\xa7 207(a) in a way that expressly ex\xc2\xad\ncludes legislative activity.4 In so doing, Congress acted on the apparent\nassumption that it was clarifying, not changing, pre-existing law in this\nrespect. The assumption is evident, first, in a report o f the Senate Com \xc2\xad\nmittee on Governmental Affairs that interpreted a proposed new version\no f \xc2\xa7 207 that would not have changed the language o f \xc2\xa7 207(a) with regard\nto the inclusion or exclusion o f legislative activity. The Committee said,\nwith respect to the proposed revision:\nA former official is also allowed [under \xc2\xa7 207(a)] to appear\nbefore Congressional committees and give testimony even on\nparticular matters involving specific parties in which he par\xc2\xad\nticipated personally and substantially while in office. [S. Rept.\nNo. 170, 95th Cong., 1st sess. 152 (1977).]\nBecause Congress had not yet rewritten \xc2\xa7 207(a) to make the exclusion of\nlegislative activity express, the Senate comm ittee\xe2\x80\x99s interpretation must\nhave reflected its understanding o f the range o f proceedings covered by the\nlanguage o f the former \xc2\xa7 207(a).\n\n\xe2\x80\x99The legislation history o f \xc2\xa7 207(a) strongly supports the conclusion that Congress did not\nconsider the applicability o f the postemploym ent ban to legislative activity. The language o f\nboth the House and Senate reports emphasizes Congress\xe2\x80\x99 concern with \xe2\x80\x9c judicial as well as\nadministrative proceedings,\xe2\x80\x9d H. Rept. 748, 87th Cong., 1st sess. 11 (1961); see also S. Rept.\n2213, 87th Cong., 2d sess. 5 ( 1962), excluding, by implication, any consideration o f the\nlegislative forum.\n\xe2\x80\x98As amended, \xc2\xa7 207(a) now provides criminal sanctions for:\nW hoever, having been an officer or employee o f the executive branch o f the United\nStates G overnm ent, o f any independent agency o f the United States, or o f the District o f\nColumbia, including a special Governm ent employee, after his employment has ceased,\nknowingly acts as agent or attorney for, or otherwise represents, any other person (ex\xc2\xad\ncept the United States), in any formal or informal appearance before, or, with the intent\nto influence, makes any oral or written com m unication on behalf o f any other person\n(except the United States) to \xe2\x80\x94\n(1) any departm ent, agency, court, court-m artial, or any civil, military, or naval\ncommission o f the United States or the District o f Colum bia, or any officer or\nemployee thereof, and\n(2) in connection with any judicial or other proceeding, application, request for a\nruling or other determ ination, contract, claim, controversy, investigation, charge, ac\xc2\xad\ncusation, arrest, or other particular m atter involving a specific party or parties in\nwhich the United States or the District o f Columbia is a party or has a direct and\nsubstantial interest, and\n(3) in which he participated personally and substantially as an officer or employee\nthrough decision, approval, disapproval, recom mendation, the rendering o f advice,\ninvestigation or otherwise, while so employed; * * *\nThe Office o f Governm ent Ethics regulations interpreting the new \xc2\xa7 207(a) specifically\npermit legislative activity. 44 F.R. 19979 (1979), to be codified at 5 CFR \xc2\xa7 737.5(c).\n\n377\n\n\x0cThis conclusion is buttressed also by the premise stated throughout the\nlegislative history that, insofar as \xc2\xa7 207(a) was being revised substantively,\nthe new conflict o f interest provisions would be more stringent than the\nold. See, e.g., id. at 32. If the former version o f \xc2\xa7 207(a) included\nlegislative activities, the new version would in fact be more lenient in this\nregard.\nWe conclude that Congress\xe2\x80\x99 understanding in 1978 concerning the scope\no f \xc2\xa7 207(a) was correct. The language o f \xc2\xa7 207(a) necessarily excludes most\nlegislation from the kinds o f matters it covers, and no guidance appears\nth at suggests a line to be drawn between different kinds o f legislative ac\xc2\xad\ntivity with respect to the applicability o f the statute.\nConclusion\nFor the foregoing reasons, we conclude that Mr. A may participate in\nlegislative activities connected with implementing the Panam a Canal\nT reaty.5 It should be noted that our interpretation o f \xc2\xa7 207(a) would bar\nhis representation o f Panam a before the judicial or executive branches in\nany proceeding connected with the implementation o f the treaty.\nJohn M . H\n\narm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99This Office has not considered the effect, if any, o f the Code o f Professional Responsibil\xc2\xad\nity in the present context, either with respect to any steps that may be required o f Mr. A to\npreserve the confidences and secrets o f his form er client, the United States, see C anon 4, or\nthe effect, if any, o f his past and present relationship with that client on his ability to exercise\nfully independent professional judgm ent on behalf o f Panam a. See C anon 5.\n\n378\n\n\x0c"


b"November 26, 1979\n\n79-83\n\nMEMORANDUM OPINION FOR THE ACTING\nDIRECTOR, EXECUTIVE OFFICE FOR U.S.\nATTORNEYS\nU.S. Attorneys\xe2\x80\x94Removal of Court-Appointed\nU.S. Attorney (28 U.S.C . \xc2\xa7\xc2\xa7 541, 546)\n\nThis responds to your request concerning whether the power to remove\na U.S. Attorney appointed by a district court pursuant to 28 U.S.C. \xc2\xa7 546\nis vested in the President, the Attorney General, or the appointing court.1\nTo our knowledge, the question is one of first impression.\nPursuant to 28 U.S.C. \xc2\xa7 541(a), the President appoints U.S. Attorneys\nby and with the advice and consent of the Senate. Subsection (c) of that\nsection provides that \xe2\x80\x9c [e]ach United States Attorney is subject to removal\nby the President.\xe2\x80\x9d The question is whether the President\xe2\x80\x99s removal power\nunder subsection (c) extends to U.S. Attorneys appointed by the court pur\xc2\xad\nsuant to \xc2\xa7 546, or whether they can be removed only by the court that ap\xc2\xad\npointed them. In our view the first interpretation is the correct one.\nNormally, as a rule of construction, the power to appoint carries with it\nthe power to remove. See, Myers v. United States, 272 U.S. 52, 119 (1926),\nand the authorities there cited. Myers, indeed, stands for the proposition\nthat this rule is of a constitutional nature in the case of executive officers\nappointed by the President by and with the advice and consent of the\nSenate. On the other hand, where Congress exercises its authority under\nArticle II, section 2, clause 2, of the Constitution by vesting the power of\nappointing inferior officers in the President alone, the heads of depart\xc2\xad\nments, or the courts, it can also regulate the manner for the removal of\nthose officers appointed by department heads and the courts.2 See, United\n\n'T he section reads as follows:\nT he district court for a district in which the office o f United States A ttorney is vacant\nmay appoint a U nited States A ttorney to serve until the vacancy is filled. The order of\nappointm ent by the court shall be filed with the clerk o f the court.\n'T here is no occasion here to discuss the question whether Congress can limit the power of\nthe President to remove inferior officers where Congress has vested the appointm ent power\nin the President alone. See, Myers v. United States, 272 U .S. at 158-161.\n\n448\n\n\x0cStates v. Perkins, 116 U.S. 483, 485 (1886); Myers v. United States, 272\nU.S. at 160-163; Carter v. Forrestal, 175 F.(2d) 364, 366 (D.C. Cir. 1949).\nIn \xc2\xa7 546, Congress has vested in the district courts the power to make in\xc2\xad\nterim appointments of U.S. Attorneys who, under Myers, are character\xc2\xad\nized as inferior executive officers. 272 U.S. at 159. Hence the power to\nremove court-appointed U.S. Attorneys would rest with the appointing\ncourt, unless Congress has exercised its authority to regulate their\nremoval.\nWe believe that Congress has done so in \xc2\xa7 541(c), which, as stated above\nprovides that \xe2\x80\x9c [e]ach United States Attorney is subject to removal by the\nPresident.\xe2\x80\x9d [Emphasis added.] In United States v. Solomon, 216 F. Supp.\n835 (S.D.N.Y. 1963), the defendant contended that because 28 U.S.C.\n\xc2\xa7 506 (the predecessor of \xc2\xa7 546) vested the appointive power in the court, it\nalso possessed the power of removal and that this combination provided\n\xe2\x80\x9c a nexus too close to comport with due process.\xe2\x80\x9d The court rejected this\ncontention, stating (p. 843):\n[T]he contention rests on an unfounded premise. While the nor\xc2\xad\nmal appointive power carries with it the power of removal * * *\nthe power in this instance is in no wise equivalent * * * Presi\xc2\xad\ndent may, at any time, remove the judicially appointed United\nStates Attorney pursuant to 28 U.S.C. \xc2\xa7 504 [now \xc2\xa7 541]. The\nlanguage o f subsection (b), [e]ach United States Attorney shall\nbe subject to removal by the President * * * clearly authorizes\nthe executive to remove any United States Attorney, regardless\nof the nature of his appointment. The statutory scheme for the\ntemporary appointment by the judiciary of the United States At\xc2\xad\ntorney comports in all respects with due process of law.\nAlthough the case did not involve an executive attempt to remove an in\xc2\xad\nterim U.S. Attorney, it is, as far as we are aware, the only judicial state\xc2\xad\nment directly in point. We believe it to be correct, as we discuss below.\nSection 541(c) is part of 28 U.S.C. \xc2\xa7 541, the first subsection of which\nprovides for the appointment of U.S. Attorneys by the President by and\nwith the advice and consent of the Senate. Subsection (c), however, should\nnot be read as being limited to the U.S. Attorneys appointed by the Presi\xc2\xad\ndent pursuant to subsection (a). To begin with the word \xe2\x80\x9c each\xe2\x80\x9d would be\nunnecessary if subsection (c) were confined only to those U.S. Attorneys.\nMoreover, the subsection would be surplusage because it has been firmly\nestablished, since Parsons v. United States, 167 U.S. 324 (1897), that the\nPresident has the power to remove U.S. Attorney appointed by him with\nthe advice and consent of the Senate. Section 541(c), therefore, makes\nsense only if its application is not limited to Presidentially appointed U.S.\nAttorneys, whom the President can remove even without statutory\nauthorization, but also is to be read as extending to \xe2\x80\x9c each\xe2\x80\x9d U.S. At\xc2\xad\ntorney, including the court-appointed ones whom the President could not\nremove without congressional leave.\n449\n\n\x0cThere are two considerations that presumably prompted Congress to\ngive the President the power to remove court-appointed prosecutors. First,\nthe duties of the U.S. Attorneys are of an executive nature. Although the\nlegislative history is not illuminating, see 37 Cong. Globe 1028 (1863),\npassim, Congress may have felt at the time when the initial predecessor of\n\xc2\xa7 546 was enacted in 1863 that the expeditious filling of the office of a U.S.\nAttorney in case of a vacancy could be best accomplished by the local\ncourt. But it is also true that the President is responsible for the conduct of\na U.S. Attorney\xe2\x80\x99s Office and therefore must have the power to remove one\nhe believes is an unsuitable incumbent, regardless of who appointed him.\nIndeed, Myers v. United States points out (at 119-122) that the power of\nremoval may be even more important to the President than the power of\nappointment. Indeed, it is the power to remove, and not the power to ap\xc2\xad\npoint, which gives rise to the power to control. Second, as suggested in\nUnited States v. Solomon, due process problems could arise if a court\nthrough the exercise of its removal power were enabled to control the man\xc2\xad\nner in which a prosecutor performs his official duties. We therefore are of\nthe opinion that the power to remove a court-appointed U.S. Attorney\nrests with the President.\nYour inquiry also asks whether the Attorney General has that power.\nWe answer this questions in the negative in view of our interpretation of\n\xc2\xa7 541(c) as constituting\xe2\x80\x94at least in part\xe2\x80\x94the specific exercise of\nlegislative power under Article II, section 2, clause 2, vesting in the Presi\xc2\xad\ndent the power o f removing a court-appointed U.S. Attorney.\nWhether the President should exercise the power of removal is, of\ncourse, a question of policy.3 We note in this connection that Carey v.\nUnited States, 132 Ct. Cl. 397 (1955), stands for the proposition that the\nPresident need not actually sign removal papers, but that he may leave to\nthe Attorney General the implementation of an oral Presidential decision\nto remove a U.S. Attorney appointed with the advice and consent of the\nSenate; indeed, that the President may authorize the Attorney General to\ndo what he feels is warranted and then orally approve the action taken by\nthe Attorney General. Carey at 401-403.4 But we do not recommend this\ncourse of action in the situation at hand, since the incumbent U.S. At\xc2\xad\ntorney apparently has the backing of the district court. That court might\nreact unfavorably to any action that does not carefully comport with the\nletter of the statute.\nJohn M . H\n\narmon\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98We note that in your view this m atter has a serious potential effect upon the A ttorney\nGeneral\xe2\x80\x99s ability to manage the D epartm ent\xe2\x80\x99s business.\n4See also, Newman v. United States, 382 F. (2d) 979, 982 (D .C . Cir. 1967), suggesting that\nthe President can delegate certain o f his supervisory and disciplinary powers\xe2\x80\x94including the\npower o f summary dismissal\xe2\x80\x94to deal with m isconduct o f his subordinates.\n\n450\n\n\x0c"


b'Authority of Chief Financial Officer Under\nFY 2003 HUD Appropriations\nProvisions of the Department of Housing and Urban Development Appropriations Act for FY 2003 did\nnot assign all responsibility for appropriations law matters to HUD\xe2\x80\x99s Chief Financial Officer to the\nexclusion of the General Counsel.\n\nAugust 12, 2003\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF MANAGEMENT AND BUDGET\nThis memorandum responds to your request for our opinion concerning the\nproper interpretation of certain appropriations provisions for the Department of\nHousing and Urban Development (\xe2\x80\x9cHUD\xe2\x80\x9d) contained in the Consolidated\nAppropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11 (\xe2\x80\x9c2003 Act\xe2\x80\x9d).\nTitle II of division K of that Act contained the salaries and administration\nprovisions of the fiscal year 2003 appropriations for HUD. Those provisions\nincluded certain appropriations earmarked for HUD\xe2\x80\x99s Office of the Chief Financial Officer (\xe2\x80\x9cOCFO\xe2\x80\x9d).\nYou have asked whether these appropriations provisions exclusively assigned\nall responsibility for appropriations law matters at HUD to HUD\xe2\x80\x99s Chief Financial\nOfficer (\xe2\x80\x9cCFO\xe2\x80\x9d), effectively barring HUD\xe2\x80\x99s General Counsel from exercising any\nresponsibilities with respect to appropriations matters. We conclude that the\nprovisions in question do not have that effect. They provide the CFO with (or at\nleast condition funding on the CFO\xe2\x80\x99s being provided (1)) exclusive authority to\ninvestigate potential or actual violations of federal appropriations law by HUD\nofficials or components, but they do not provide exclusive authority or responsibility with respect to all other matters or issues concerning federal appropriations\nstatutes that may arise at HUD.1\nI.\nUnder the general salary and administrative expenses appropriation for HUD,\nthe 2003 Act provided that $21,000,000 was to be made available to the CFO\n\xe2\x80\x9cexclusively for activities to implement appropriate funds control systems,\nincluding . . . establishment of a division of appropriations law within the Office\nof the Chief Financial Officer.\xe2\x80\x9d 2003 Act, 117 Stat. at 499. After listing several\nadditional provisions respecting the OCFO, and providing for the transfer of \xe2\x80\x9cno\n1\nYou have not asked us, and we therefore do not address, whether the provisions addressed in this\nmemorandum are permanent substantive obligations imposed on HUD or are merely conditions to the\nfiscal year 2003 appropriations. Our discussion assumes arguendo the former, and we therefore do not\nreiterate the alternative language of conditions where it would otherwise be appropriate to do so.\n\n144\n\n\x0cAuthority of Chief Financial Officer Under FY 2003 HUD Appropriations\n\nfewer than four appropriations law attorneys from the Legislative Division of the\nOffice of Legislation and Regulations, Office of General Counsel to the OCFO,\xe2\x80\x9d\nthe 2003 Act then stated:\nProvided further, That, notwithstanding any other provision of law,\nhereafter, the Chief Financial Officer of the Department of Housing\nand Urban Development shall, in consultation with the Budget Officer, have sole authority to investigate potential or actual violations\nunder the Anti-Deficiency Act (31 U.S.C. 1341 et seq.) and all other\nstatutes and regulations related to the obligation and expenditure of\nfunds made available in this, or any other Act; shall determine\nwhether violations exist; and shall submit final reports on violations\nto the Secretary, the President, the Office of Management and Budget and the Congress in accordance with applicable statutes and Office of Management and Budget circulars: Provided further, That the\nChief Financial Officer shall establish positive control of and maintain adequate systems of accounting for appropriations and other\navailable funds as required by 31 U.S.C. 1514: Provided further,\nThat for the purpose of determining whether a violation exists under\nthe Anti-Deficiency Act (31 U.S.C. 1341 et seq.), the point of obligation shall be the executed agreement or contract.\nId. at 499\xe2\x80\x93500 (emphasis added). The 2003 Act also made the funding subject to\nthe conditions that the CFO appoint qualified personnel to conduct investigations;\nestablish minimum qualifications for personnel that may be appointed to conduct\ninvestigations; and establish guidelines, timeframes, policies, and procedures for\nthe conduct of investigations of \xe2\x80\x9cpotential and actual violations of the AntiDeficiency Act and all other statutes and regulations governing the obligation and\nexpenditure of funds made available in this or any other Act.\xe2\x80\x9d Id. at 500.\nII.\nApparently responding to certain communications from the staff of the House\nAppropriations Committee, HUD\xe2\x80\x99s Deputy Assistant Secretary for Congressional\nRelations recently set forth HUD\xe2\x80\x99s construction of the above-quoted provisions of\nthe 2003 Act in a letter to Senator Christopher Bond:\nThe initial reaction of the Department to both the statutory and\nconference report language was that the OCFO now has sole authority over all potential or actual violations of all appropriations laws.\nPursuant to conversations with staff from the House Committee on\nAppropriations the congressional intent of the statutory and conference report language was clarified to mean that the CFO now also\nhas sole authority in all matters of appropriations law, whether or not\n\n145\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nthe issues involve potential or actual violations. The Department will\nmeet both the letter and spirit of the conference report by transferring\nall appropriations law responsibilities, beyond just potential or actual\nappropriations law violations, from the OGC to the OCFO.\nLetter for Christopher S. Bond, Committee on Appropriations, U.S. Senate, from\nWilliam M. Himpler, Deputy Assistant Secretary for Congressional Relations,\nDepartment of Housing and Urban Development, at 2 (Mar. 13, 2003).\nIn a subsequent letter to the Office of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d),\nhowever, Senator Bond strongly disagreed with HUD\xe2\x80\x99s interpretation of the\nOCFO appropriations provisions. Senator Bond stated in relevant part:\nThis interpretation of the \xe2\x80\x9cSalaries and Expenses\xe2\x80\x9d account language is contrary to the House and Senate agreement on the Conference, the understanding of the Senate, the initial understanding of\nHUD (see HUD Letter dated March 13th) and the plain reading of\nthe statutory language and the reports (see attachments) of the\nAct. . . . This interpretation and subsequent implementation will substantially undermine and erode the authority of the General Counsel\nto ensure HUD can meet its legal requirements in a consistent and\neffective manner.\nLetter for Philip Perry, General Counsel, Office of Management and Budget, from\nChristopher S. Bond, Committee on Appropriations, U.S. Senate, at 1 (May 9,\n2003).\nA memorandum on this issue prepared by HUD\xe2\x80\x99s General Counsel expresses\nessentially the same view contained in Senator Bond\xe2\x80\x99s letter. See Memorandum\nfor William M. Himpler, Deputy Assistant Secretary for Congressional Relations,\nfrom Richard A. Hauser, General Counsel, Department of Housing and Urban\nDevelopment, Re: Final Report to Appropriation Committees on Appropriation\nLaw Functions (Mar. 13, 2003). The General Counsel\xe2\x80\x99s memorandum states: \xe2\x80\x9cWe\nstrongly disagree with the interpretation that the [2003 Act] and accompanying\nConference Report provide for all appropriations law functions and responsibilities to be under the jurisdiction of the CFO. The Act and the Conference Report do\nnot support that interpretation.\xe2\x80\x9d Id. Although the General Counsel stated that the\n2003 Act gives the CFO \xe2\x80\x9csole authority to investigate and determine potential or\nactual violations of the Antideficiency Act and other fiscal statutes,\xe2\x80\x9d he asserted\nthat \xe2\x80\x9c[t]his is the extent of the authority conferred on the CFO.\xe2\x80\x9d Id.\nIn response to these conflicting interpretations of the OCFO appropriations\nprovisions in the 2003 Act, you have asked this Office to determine the correct\ninterpretation of those provisions.\n\n146\n\n\x0cAuthority of Chief Financial Officer Under FY 2003 HUD Appropriations\n\nIII.\nIt is clear that the foregoing provisions of the 2003 Act give the CFO extensive\nand exclusive authority (subject to obligatory consultation with the Budget\nOfficer) to conduct and control investigations of potential and actual violations of\nthe Anti-Deficiency Act (\xe2\x80\x9cADA\xe2\x80\x9d) and other appropriations laws and regulations\nwithin HUD. In that respect, the most pertinent language in the statute provides\nthat the CFO \xe2\x80\x9cshall, in consultation with the Budget Officer, have sole authority to\ninvestigate potential or actual violations under the Anti-Deficiency Act (31 U.S.C.\n1341 et seq.) and all other statutes and regulations related to the obligation and\nexpenditure of funds made available in this or any other Act.\xe2\x80\x9d 2003 Act, 117 Stat.\nat 499 (emphasis added).\nWe find no basis in the text of these provisions, however, to support the broader contention that the CFO was given sole authority, exclusive of the HUD\nGeneral Counsel and his Office, to provide advice, counsel, or analysis for the\nSecretary or other HUD components on all matters and issues of appropriations\nlaw. The extensive investigative authority respecting actual or potential violations\nof law that was indisputably granted to the CFO simply cannot be equated with the\nexclusive authority to interpret, analyze, and provide advice respecting the federal\nappropriations laws for HUD and its components. Many matters concerning the\nfederal appropriations laws at a department like HUD (e.g., determining the effect\non HUD or its components of a binding judicial or administrative decision\ninterpreting the federal appropriations laws) may arise without regard to the\noccurrence, or even the suspicion, of a violation of such laws. Moreover, none of\nthe other detailed provisions of the 2003 Act concerning the appropriations and\nauthorities of the CFO states or establishes that the CFO is to exercise the same\nexclusive authority over all other appropriations law matters that he exercises over\nthe investigation of violations of such laws. Although the language of these\nprovisions is somewhat cumbersome and wordy, we do not find it ambiguous in\nthis respect.\nBecause the text of these statutory provisions is clear on this question, we need\nnot resort to legislative history to ascertain their meaning. See, e.g., Ratzlaf v.\nUnited States, 510 U.S. 135, 147\xe2\x80\x9348 (1994) (\xe2\x80\x9cwe do not resort to legislative\nhistory to cloud a statutory text that is clear\xe2\x80\x9d). In any event, our conclusion is\nconsistent with pertinent legislative history concerning this provision. See H.R.\nConf. Rep. No. 108-10, at 1427 (2003); H.R. Rep. No. 107-740, at 79 (2002)\n(House Appropriations Committee). These reports reinforce, rather than contradict, the import of the CFO provision\xe2\x80\x99s text: the CFO was given sole authority to\ninvestigate violations of the ADA and other appropriations laws. They do not state\nor indicate that Congress intended, contrary to the statute\xe2\x80\x99s text, to give the CFO\nexclusive authority at HUD with regard to all other matters or issues concerning\nfederal appropriations law.\n\n147\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nFinally, there is some suggestion in the documents provided us that the postenactment statements of congressional staff, purporting to clarify the intent and\nmeaning of the statutory provisions in issue, were given considerable weight by\nsome officials in implementing those provisions. It is clear that such postenactment statements are entitled to no weight in determining the meaning of a\nstatute. See, e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 132\n(1974) (post-passage statements of legislators not entitled to any weight).\nM. EDWARD WHELAN III\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n148\n\n\x0c'


b"December 7, 1979\n\n79-84\n\nMEMORANDUM OPINION FOR THE SPECIAL\nCOUNSEL, MERIT SYSTEMS PROTECTION\nBOARD\nMerit Systems Protection Board\xe2\x80\x94Special Counsel\xe2\x80\x94\nEmployment of Temporary or Intermittent\nAttorneys and Investigators (31 U.S.C. \xc2\xa7 686)\n\nAssistant Attorney General Harmon has asked me to respond to your\nrequest for our view whether your desire to employ temporary or intermit\xc2\xad\ntent investigators and attorneys to investigate and assist in the processing\nof your cases is consistent with relevant law and ethical considerations.1\nIt is our understanding that you want to appoint both employees de\xc2\xad\ntailed from other Federal agencies and individuals from the private sector.\nThey will serve under your supervision on a part-time basis not to exceed\n6 months. These employees will be appointed when you have a backlog of\nwork and will perform the same functions as permanent employees of\nyour Office; in particular, they will screen cases and interview witnesses.\nI.\nTemporary or intermittent experts and consultants may be regained by\nagencies when authorized by an appropriation or other statute. 5 U.S.C.\n\xc2\xa7 3109. Although your recent appropriation act authorizes you to employ\nexperts and consultants, Act of Sept. 29, 1979, Pub. L. No. 96-74, 93\nStat. 572, in our view this appropriation may not be used to hire\nemployees to perform the same functions as are performed by regular\nemployees in your Office. Subchapter 1-2 of The Federal Personnel\nManual, Chapter 304, provides a definition of \xe2\x80\x9c consultant\xe2\x80\x9d and\n\xe2\x80\x9c expert.\xe2\x80\x9d A consultant who is excepted from the competitive service is \xe2\x80\x9c a\n\n'W e understand from your staff that you are no longer interested in employing such per\xc2\xad\nsons to train your perm anent staff o r to assist in the development o f a com puter-based infor\xc2\xad\nmation retrieval system.\n\n451\n\n\x0cperson who serves as an advisor to an officer or instrumentality of the\nGovernment, as distinguished from an officer or employee who carries out\nthe agency\xe2\x80\x99s duties and responsibilities.\xe2\x80\x9d A consultant position is defined\nas \xe2\x80\x9c a position requiring the performance of purely advisory or consultant\nservices, not including performance of operating functions.\xe2\x80\x9d The defini\xc2\xad\ntion of expert is somewhat broader but, in our view, does not provide a\nbasis for the plan you contemplate. The Federal Personnel Manual\ndescribes an expert as \xe2\x80\x9c a person with excellent qualifications and a high\ndegree of attainment in a professional * * * field. His knowledge and\nmastery of the principles, practices, problems, methods, and techniques of\nhis field of activity, or of a specialized area in a field, are clearly superior\nto those usually possessed by ordinarily competent persons in that\nactivity.\xe2\x80\x9d An expert position is one that \xe2\x80\x9c for satisfactory performance,\nrequires the services of an expert in the particular field * * * and with\nduties that cannot be performed satisfactorily by someone not an expert in\nthat field.\xe2\x80\x9d This, although your appropriation for temporary experts\ncould most likely be used to hire particularly qualified attorneys or in\xc2\xad\nvestigators to work on unusually difficult matters, we do not understand\nthis to be your current plan, and we do not believe that short-term\nemployees hired to perform work exactly like that of your regular staff can\nproperly be considered experts.\nII.\n\nBecause we believe that the temporary agency and private-sector\nemployees you want to appoint cannot be considered experts or con\xc2\xad\nsultants, the question arises whether there is any other statutory authoriza\xc2\xad\ntion for hiring them.\nEmployees from Other Federal Agencies\nSection 686(a) of title 31, United States Code, authorizes purchase of\nservices by one Federal Government entity from another Federal Govern\xc2\xad\nment entity. This statute states:\nAny executive department or independent establishment of the\nGovernment, or any bureau or office thereof, if funds are avail\xc2\xad\nable therefore and if it is determined by the head of such executive\ndepartment, establishment, bureau, or office to be in the interest\nof the Government so to do, may place orders with any other such\ndepartment, establishment, bureau, or office for * * * services,\nof any kind that such requisitioned Federal agency may be in a\nposition to supply or equipped to render, and shall pay promptly\nby check to such Federal agency as may be requisitioned, * * *\nall or part of the estimated or actual cost thereof * * * .\nWe read \xc2\xa7 686(a) as allowing you to request the services of attorneys and\ninvestigators employed in another Federal Government entity that has\nauthority to conduct activities similar to those the employees will be pur\xc2\xad\nsuing for you. Two prerequisites to your use of funds to reimburse the\n452\n\n\x0ctransferor agency are that the funds were appropriated for the type of\nwork you will have the detailed attorneys and investigators perform,2 and\nthat you provide an adequate rationale why the work cannot be satisfac\xc2\xad\ntorily performed by your own staff or by using the funds to increase your\nagency\xe2\x80\x99s staff. This second requirement would be met if you can make a\nshowing that Government efficiency is best served by bringing into your\nagency on a temporary basis employees who have gained experience in the\nkind of work to be performed while working for other agencies rather than\nhiring new employees and having to train them for a job that will last at\nmost 6 months.\nEmployees from the Private Sector\nYou also propose to accept the gratuitous services of attorneys and in\xc2\xad\nvestigators from the private sector.3 The acceptance of voluntary services\nis prohibited by 31 U.S.C. 665(b), which states that:\nNo officer or employee of the United States shall accept volun\xc2\xad\ntary service for the United States or employ personal service in\nexcess of that authorized by law * * * .\nThis has been interpreted by the Attorney General to prohibit a contract\nfor services for which no payment is required, but the prohibition on ac\xc2\xad\nceptance of voluntary services was not intended to cover services rendered\ngratuitously in an official capacity under a regular appointment to a posi\xc2\xad\ntion otherwise permitted by law to be nonsalaried.'30 Op. A tt\xe2\x80\x99y. Gen. 51\n(1913). See also subchapter l-4.d of The Federal Personnel Manual,\nChapter 311.\nSubchapter 1-4 of Chapter 311 defines gratuitous service as that offered\nand accepted without pay under an appointment to perform duties the pay\nfor which has not been established by law. If Congress has fixed a\nminimum salary for a position, an individual cannot waive that salary.\nGlavey v. United States, 182 U.S. 595 (1901). Cf., MacMath v. United\nStates, 248 U.S. 151 (1918). You are in a better position than we to deter\xc2\xad\nmine as a factual matter whether the attorneys and investigators you hope\nto hire from the private sector will be filling jobs for which a minimum\nsalary has been fixed by law. Even if there is such a minimum salary set,\nthis element of the definition of gratuitous service could be interpreted to\nmean that if the Government is to pay anything more than a nominal sum,\nthe minimum salary established by law must be paid, but that \xe2\x80\x9c a position\nfor which no minimum salary is set by law\xe2\x80\x9d includes all those positions for\nwhich no salary or a nominal salary is paid. Section 5102(c)(13) of title 5,\n\n'Funds appropriated for the hiring o f attorneys and investigators to perform the tasks you\nintend to have the detailed employees perform may be used only for the purposes for which\nthey are appropriated, 31 U .S.C . 628, but they are available to pay either employees o f your\nown or those detailed from another agency.\n\xe2\x80\x99We leave aside for the m oment the question o f whether you can pay each private sector\nemployee a nominal sum, not to exceed $100, for all services rendered by the participant dur\xc2\xad\ning the 6 m onths o f the program .\n\n453\n\n\x0cU.S. Code, states that chapter 51 of title 5 providing for the classification\no f pay and allowances does not apply to employees who serve without pay\nor at nominal rates of pay.\nWe conclude, therefore, that you can appoint attorneys and in\xc2\xad\nvestigators from the private sector and that you can pay a nominal sum\nsuch as you propose to those providing the gratuitous service. We do not\nthink, as stated above, that your appropriation for hiring temporary con\xc2\xad\nsultants or experts can be used to provide these funds and thus you will\nhave to be able to justify the appointment and expenditure under 5 U.S.C.\n12060), authorizing you to appoint the legal, administrative and support\npersonnel necessary to perform the functions of your Office, and as an ex\xc2\xad\npense necessary thereto under your recent appropriation act.\nIII.\n\nFinally, we consider whether the plan you propose is consistent with\nrelevant conflict of interest laws. This advice is necessarily general and\ndoes not preclude the need for careful consideration of particular factual\ncircumstances.\nThe employees whose services you obtain from other Federal agencies\nwill continue to be subject to the conflict of interest restrictions for regular\nGovernment employees. Your proposed plan raises no unusual questions\nas to those employees and therefore we see no need to discuss the require\xc2\xad\nments in detail.\nThose appointed from the private sector will be subject to the same re\xc2\xad\nquirements as regular Government employees, but they may be made sub\xc2\xad\nject to the less stringent conflict of interest requirements for special\nGovernment employees if you decide in advance to appoint them to serve\nless than 130 days in any 365-day period. 18 U.S.C. 202(a) defines \xe2\x80\x9c special\ngovernment employee\xe2\x80\x9d as \xe2\x80\x9c an officer or employee of the executive or\nlegislative branch of the United States Government, of any independent\nagency of the United States * * * who is retained, designated, ap\xc2\xad\npointed, or employed to perform, with or without compensation, for not\nto exceed one hundred and thirty days during any period of three hundred\nand sixty-five consecutive days, temporary duties either on a full-time or\nintermittent basis * * * .\xe2\x80\x9d In estimating in advance of appointment the\nnumber of days an employee may serve, an agency must in good faith find\nthat the special Government employee will serve no more than 130 days; a\npart of a day must be counted as a full day, and a Saturday, Sunday, or\nholiday on which duties are to be performed must be counted equally with\na regular work day. Federal Personnel Manual, Chapter 735, Appendix C.\nIf an employee does, however, serve for more than the 130 days, he or she\nwill nevertheless continue to be regarded as a special Government\nemployee so long as the original estimate was made in good faith. Id. Once\nan employee is appointed as a special Government employee, the restric\xc2\xad\ntions imposed by the conflict of interest laws apply even on days the\nemployee does not serve the Government. Id.\n454\n\n\x0cCompensation\n\nSections 203 and 209 of title 18 limit the compensation employees may\nreceive in addition to their Government salary. The restrictions of \xc2\xa7 209\non the receipt of \xe2\x80\x9c salary, or any contribution to or supplementation of\nsalary\xe2\x80\x9d as compensation for services as an employee of the United States\nfrom any source other than the Government of the United States is ex\xc2\xad\npressly not applicable to special Government employees. \xc2\xa7 209(c). The re\xc2\xad\nstrictions found in \xc2\xa7 203(a) on receipt of outside compensation when one is\nserving as an officer or employee of the United States in relation to any\nmatter in which the United States is a party or has a direct and substantial\ninterest before any department, agency, or commission, applies to special\nGovernment employees only in relation to a particular matter involving a\nspecific party or parties in which the employee has at any time participated\npersonally and substantially as a Government employee or as a special\nGovernment employee through decision, approval, disapproval, recom\xc2\xad\nmendation, the rendering of advice, investigation or otherwise, or which is\npending in the department or agency of the Government in which he or she\nis serving.4 Furthermore, \xc2\xa7 203 applies to matters pending in the depart\xc2\xad\nment only when a special Government employee has served in the agency\nfor no more than 60 days during the immediately preceding 365 days.\n\xc2\xa7 203(c).\nIf you do not hire private employees as special Government employees,\nthey will be subject, as are the regular Government employees whose serv\xc2\xad\nices you might utilize, to the restrictions of \xc2\xa7 203. But even if the private\nemployees were special Government employees, if they serve without com\xc2\xad\npensation, they nevertheless will not be subject to \xc2\xa7 209. See \xc2\xa7 209(c).\nIf the employees from the private sector are regular employees and are\npaid by the Government, \xc2\xa7 209 requires that their private-sector compen\xc2\xad\nsation be reviewed to ensure that it does not include payment for Govern\xc2\xad\nment work and to reflect their more limited participation in the private\nfirm\xe2\x80\x99s business. To satisfy \xc2\xa7 203, these employees\xe2\x80\x99 salaries will have to be\nreviewed further, if necessary, to ensure that they do not share fees for\nrepresentational services performed by another as outlined above.5\nRepresentation Restrictions\nRegular Government employees must refrain from acting as agents or\nattorneys for anyone before any department, agency, court, court-martial,\nofficer, or any civil, military, or naval commission, in connection with any\nparticular matter in which the United States is a party or has a direct and\n\n\xe2\x80\x98Section 203 applies as well to receipt o f com pensation by an employee for services\nrendered by another, such as a law partner.\n\xe2\x80\x99The restrictions o f \xc2\xa7 209 do not prohibit continued participation by employees in bona\nfide pension, retirem ent, group life, health or accident insurance, profit-sharing, stock\nbonus, or other employee welfare or benefit plans maintained by a private employer. See\n\xc2\xa7 209(b).\n\n455\n\n\x0csubstantial interest. 18 U.S.C. \xc2\xa7 205. This section restricts special Govern\xc2\xad\nment employees in more limited fashion; such an employee may not act as\nattorney or agent in relation to any particular matter involving a specific\nparty or parties in which that employee has at any time participated in the\ncourse of his or her Government service, or, if the employee has served at\nleast 61 days, any matter that is pending in the department in which he or\nshe is serving. A special Government employee is not otherwise barred\nfrom acting as an attorney in court proceedings or in proceedings before\nother agencies.\nSection 208 of title 18 requires an officer or employee (including a\nspecial Government employee) to disqualify himself or herself from par\xc2\xad\nticipating in decisions with regard to particular matters where he or she, a\nspouse, minor child, partner, organization in which the employee is serv\xc2\xad\ning as officer, director, trustee, partner, or employee, or any person or\norganization with whom he or she is negotiating or has any arrangement\nconcerning prospective employment, has a financial interest. A waiver is\navailable under certain conditions, \xc2\xa7 208(b), and, as with the applicability\nof all of the conflict o f interest sections discussed in this opinion, a careful\nexamination of the particular facts would have to be made in each in\xc2\xad\ndividual case.\nPost-employment Restrictions\nSection 207 of title 18 was amended by the Ethics in Government Act of\n1978 to require that regular employees and special Government employees\nbe permanently barred from acting as attorney or agent or otherwise rep\xc2\xad\nresenting any person other than the United States in making any commu\xc2\xad\nnication, with intent \xe2\x80\x98to influence, or in making any informal or formal ap\xc2\xad\npearance before any department, agency, commission, or court in relation\nto any particular matter in which the United States or the District of Co\xc2\xad\nlumbia is a party or has a direct and substantial interest and in which the\nemployee participated personally and substantially, Pub. L. No. 95-521,\nTitle V, T 501(a), as amended by Pub. L. No. 96-28 (92 Stat. 1864, 93\nStat. 76).6 The employee will also be prohibited for 2 years from acting as\nagent or attorney in similar circumstances with regard to matters under his\nor her official responsibility, but in all likelihood the realm of official\nresponsibility of the employees you would have would be no broader than\nthe matters in which they participated personally and substantially.\nLeon U\n\nlm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel '\n\n\xe2\x80\x98We assume that the employees you are considering hiring will not be am ong those\ndesignated for m ore stringent coverage under \xc2\xa7 207(d).\n\n456\n\n\x0c"


b'July 19, 1978\n\n78-40\n\nMEMORANDUM OPINION FOR THE ASSISTANT\nATTORNEY GENERAL, LAND AND NATURAL\nRESOURCES DIVISION\nConflicts of Interest (18 U.S.C. \xc2\xa7 207)\xe2\x80\x94 American Bar\nAssociation Code of Professional Responsibility\n\nThe Office of Professional Responsibility has referred your inquiry regarding\nthe letter received from a former Assistant U.S. Attorney (A), concerning his\npossible representation of several defendants in a case brought by the United\nStates on behalf of an Indian tribe on a reservation.\nA states that he resigned as an Assistant U.S. Attorney in 1976. While he\nwas in the U.S. Attorney\xe2\x80\x99s Office, he participated, to some extent, in the case\nto prevent depletion of ground water supplies. The court has apparently granted\nthe defendants\xe2\x80\x99 motion to join ground water users, and A states that he expects\nto be asked to represent some of the water users. Whether he may properly do\nso depends on the application of the criminal conflict-of-interest laws and\nCanons 4 and 9 of the American Bar Association (ABA) Code of Professional\nResponsibility to the particular facts.\nA indicates that he does not believe his involvement in the case was\nsubstantial. He says that the Land and Natural Resources Division had primary\nresponsibility for the case and that an attorney (B) in the Land and Natural\nResources Division planned and directed the Government\xe2\x80\x99s position, drafted\nthe complaint, and signed all motions. A does state that he conferred regularly\nwith B and attended meetings with attorneys from the Department of the Interior\nField Solicitor\xe2\x80\x99s Office and attorneys of the Native American Rights Fund.\nHowever, he is not of the view that he possesses any confidential information\nor that his participation in the case would prejudice the United States.\nB states that A was \xe2\x80\x9c the Assistant United States Attorney with whom we\nworked in preparing and filing various papers.\xe2\x80\x9d A may have attended a portion\nof a meeting attended by the Bureau of Indian Affairs, the Department of\nJustice, and Native American Rights Fund attorneys to prepare an initial draft\nof the complaint, although A had no substantive involvement in the drafting.\nAfter the complaint was filed, A attended a meeting in the U.S. Attorney\xe2\x80\x99s\nOffice to discuss the litigation.\n\n\x0cA memorandum written by B further indicates that A \xe2\x80\x9c probably signed\xe2\x80\x9d the\nGovernment\xe2\x80\x99s memoranda opposing the defendants\xe2\x80\x99 motion to dismiss,1 but\nthat he made no contribution to its contents. He was present for a portion of\nthe hearing on this motion, but did not argue the Government\xe2\x80\x99s position.\nAccording to B, A was also present and was prepared to make a short\nstatement of the Government\xe2\x80\x99s position at a hearing on a motion filed by the\nIndian tribe relating to a class action issue, but he was not requested to state the\nGovernment\xe2\x80\x99s position.\nFinally, A was apparently present at a meeting attended by the Government\xe2\x80\x99s\nsoils, hydrology, and geology experts, who discussed their preliminary\nfindings on matters relating to the case. B informed us that he believes some\ndiscussion of trial strategy occurred at this meeting as well.\nIt is not clear to what extent A \xe2\x80\x99s account of his role is inconsistent with B\xe2\x80\x99s\nstatement, particularly regarding the meeting attended by the Government\xe2\x80\x99s\nexperts. But on the basis of B \xe2\x80\x99s account, and at least in the absence of a\nshowing by A that his involvement in and exposure to the case was more\nlimited than now appears, we would advise that he not participate in the case.\nThe pertinent conflict-of-interest statute here is 18 U.S.C. \xc2\xa7 207(a), provid\xc2\xad\ning that a former Government employee may not act as agent or attorney for\nanyone other than the United States in a particular matter involving the United\nStates in which he participated \xe2\x80\x9c personally and substantially\xe2\x80\x9d as a Government\nemployee.2\nThe word \xe2\x80\x9c substantial\xe2\x80\x9d in \xc2\xa7 207(a) is intended to preclude coverage of mere\ncasual exchanges with another employee about a matter, cf. B. Manning,\nFederal Conflict o f Interest Law 71 (1964), and \xe2\x80\x9c participation by purely\nministerial or procedural acts,\xe2\x80\x9d R. Perkins, The New Federal Conflict-ofinterest Law, 76 Harv. L. Rev. 1113, 1128 (1963), quoting Association of the\nBar of the City of New York, Conflict o f Interest and Federal Service 214\n(1960). The word clearly was not designed to create an exemption for an\nindividual who was involved but \xe2\x80\x9c may have not bothered to dig into the\nsubstance of the case.\xe2\x80\x9d Id.\nAlthough B states that A \xe2\x80\x99s \xe2\x80\x9c substantive participation was minimal,\xe2\x80\x9d and\nalthough we think this a close case, we are of the opinion that the pattern of\npersonal involvement and responsibility described constitutes \xe2\x80\x9c substantial\nparticipation\xe2\x80\x9d for purposes of 18 U.S.C. \xc2\xa7 207(a), rather than the type of\n\xe2\x80\x9c casual\xe2\x80\x9d or \xe2\x80\x9c ministerial or procedural\xe2\x80\x9d involvement intended to be excluded\nfrom the statute\xe2\x80\x99s coverage. This is not a situation, for example, in which A\nwas merely asked to file papers prepared in the Land and Natural Resources\n\n\'It is not clear w hether A \'s statement in his letter that B signed all motions is inconsistent with\nthe latter\xe2\x80\x99s statem ent that A "probably signed\xe2\x80\x9d these particular mem oranda. W e are not in a\nposition to resolve a factual dispute on this issue if indeed one exists.\n218 U .S .C . \xc2\xa7 207(b) im poses a 1-year ban on personal appearances in particular m atters that\nwere under the form er G overnm ent em ployee\xe2\x80\x99s \xe2\x80\x9c official responsibility\xe2\x80\x9d during his last year o f\nGovernment service. This provision clearly barred A for as long as it applied, because the case was\napparently assigned to him when he was in the U .S. A ttorney\xe2\x80\x99s O ffice. But \xc2\xa7 207(b) will have no\npractical impact here because it has been m ore than a year since A left the U .S . A ttorney\xe2\x80\x99s O ffice.\n\n163\n\n\x0cDivision without any further exposure to the case. Indeed, he concedes that he\nconferred regularly with B and attended some meetings pertaining to the case.3\nWe need not determine the applicability of 18 U.S.C. \xc2\xa7 207(a) here,\nhowever, because it appears from the Lands Division attorney\xe2\x80\x99s account that A\nis disqualified under Canon 4 of the ABA Code of Professional Responsibility.\nDisciplinary Rules 4-101(A) and (B) provide that, except with the consent of\nthe client (or in certain other situations not relevant here), a lawyer may not\nreveal a confidence or secret of a client or use a confidence or secret to the\ndisadvantage of the client. A lawyer violates these prohibitions only if he\nactually breaches the confidential relationship. Nevertheless, many authorities\nhave held that as a procedural matter a lawyer is not qualified to represent a\nparty in litigation if he formerly represented an adverse party in a matter\nsubstantially related to the pending litigation. ABA Formal Opinion 342, 62\nA.B.A.J. 517 (1976) and cases cited.\nMoreover, it is ordinarily not necessary to establish that the attorney did, in\nfact, receive confidential information in the earlier representation in order for\nan attorney to be disqualified under Canon 4. An exploration of this issue might\ndestroy the very confidentiality that Canon 4 is intended to protect. ABA\nFormal Opinion 342, supra. 517 n. 6; Emle Industries, Inc. v. Patentex,\n478 F. (2d) 562, 571 (2d Cir. 1973). It is sufficient if \xe2\x80\x9c it can reasonably be\nsaid that in the course of the former representation the attorney might have\nacquired information related to the subject matter of his subsequent representa\xc2\xad\ntion.\xe2\x80\x9d N CK Organization, Ltd. v. Bregman, 542 F. (2d) 128, 134 (2d Cir.\n1976) [emphasis in original]. See also, Richardson v. Hamilton International\nCorp., 469 F. (2d) 1382, 1385 (3d Cir. 1972).\nIn view of B\xe2\x80\x99s account of A \xe2\x80\x99s repeated involvement in and exposure to the\ncase\xe2\x80\x94particularly his apparent presence at a portion of the meeting with the\nGovernment\xe2\x80\x99s experts at which B informed us there was probably some dis\xc2\xad\ncussion of trial strategy\xe2\x80\x94 would seem to be a case in which it may be said that\nA \xe2\x80\x9c might have acquired information related to the subject matter\xe2\x80\x9d of the law\xc2\xad\nsuit. As mentioned above, A did not merely perform the essentially ministerial\nact of filing papers prepared in Washington without having any occasion to\nconsider the merits of the case.\n\n3A related issue is w hether A is barred by DR 9 - 10 1(B) o f the ABA C ode, which provides that a\nlaw yer may not accept private em ploym ent in a m atter in which he had \xe2\x80\x9c substantial responsibility\xe2\x80\x9d\nas a public em ployee. W e have taken the position that w hether a lawyer in a supervisory position\nhad substantial responsibility under this rule depends on such factors as w hether his relationship to\nthe m atter was m erely form al, w hether the subject m atter was routine and involved no policy\ndeterm ination or was not otherw ise o f particular significance, and whether there were intervening\nlayers o f responsibility or other indications that the m atter was not o f a type with which the attorney\nwould or should have had personal involvem ent. See, generally, Kesselhaut v. United States (Ct.\nCl., M arch 29, 1976), slip opinion at 24-29, Opinion 889 o f the C om m ittee on Professional and\nJudicial Ethics o f the A ssociation o f the Bar o f the City o f New York. Contra, ABA Formal\nOpinion 342, 62 A .B .A .J. 517, 520 (1976). Sim ilar considerations would no doubt apply w here,\nas here, the form er G overnm ent law yer had a nonsupervisory relationship to the case. As with the\napplication o f 18 U .S .C . \xc2\xa7 207(a), the DR 9- 101(B) issue is a close one on the facts thus far\npresented and need not be finally resolved.\n\n164\n\n\x0cA client ordinarily may waive the confidentiality requirement in Canon 4 and\nthereby permit an attorney to appear on behalf of an adverse party in a\nsubstantially related case, but a waiver is generally thought to be inappropriate\nwhere the public interest is at stake in a case, as where the United States is a\nparty. ABA Informal Opinion 1233. On the facts as B described, we doubt that\na waiver would be appropriate here in any event, because of the substantial\nquestion regarding A\xe2\x80\x99s representation that would be raised under 18 U.S.C.\n\xc2\xa7 207(a) and DR 9-101(B).\nFor these reasons, we have strong reservations about the propriety of A\xe2\x80\x99s\nproposed representation. Obviously, however, we have not been privy to all of\nthe factual details, particularly those that might color the ultimate judgment\nhere. We have attempted to outline the considerations that we think are\nrelevant. We propose that your Division share this memorandum with A and\ninvite him to comment and to add any factual details he thinks pertinent. If he\nso elects, and if your Division thinks it would be helpful, we would be pleased\nto take a second look at this question.\nLarry A. Ham m\n\nond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n165\n\n\x0c'