b"Appointment of Vice Chair of Federal Reserve Board to Serve\nConcurrently as Chair of the District of Columbia Financial\nResponsibility and Management Assistance Authority\nT he Vice C hair o f the Federal R eserve Board m ay also serve as C hair o f the D istrict o f C olum bia\nFinancial Responsibility and M anagem ent A ssistance A uthority without violating sections 205 or\n208 o f title 18. Her dual service would also have to com ply with the Federal Reserve A ct\xe2\x80\x99s \xe2\x80\x9c entire\xc2\xad\ntim e\xe2\x80\x9d requirem ent.\n\nJune 1, 1998\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nYou have asked for our views on whether the President may appoint Alice\nRivlin to be Chair of the District of Columbia Financial Responsibility and\nManagement Assistance Authority (the \xe2\x80\x9c Authority\xe2\x80\x9d ), while Dr. Rivlin continues\nto serve in her current capacity as Vice Chair and a member of the Board of\nGovernors of the Federal Reserve System (the \xe2\x80\x9c Federal Reserve Board\xe2\x80\x9d ). Upon\nreview of the federal conflict of interest statutes,1 the prohibition on compensation\nfor dual offices, and the requirements of the Federal Reserve Act, we conclude\nthat the relevant statutory authorities do not prohibit the proposed appointment,\nbut that Dr. Rivlin must continue to perform her duties as Vice Chair of the Fed\xc2\xad\neral Reserve Board on a full-time basis. She would thus have to work with the\nFederal Reserve Board and its General Counsel to ensure compliance with the\nFederal Reserve Act.\nI. B ackground\nCongress created the Authority in 1995,2 pursuant to its constitutional authority\nover the District of Columbia.3 The Authority is \xe2\x80\x9c an entity within the government\nof the District of Columbia.\xe2\x80\x9d \xc2\xa7 101(a), 109 Stat. at 100. It consists of five mem\xc2\xad\nbers appointed by the President, in accordance with specific statutory criteria,4\none of whom is designated by the President to be the Chair of the Authority.\n1We have consulted with the Office o f Government Ethics with regard to the application of the conflict of interest\nstatutes to this matter\n2 District o f Columbia Financial Responsibility and Management Assistance Act of 1995, Pub L No 104-8,\n109 Stat 97 (the \xe2\x80\x9c D.C. Financial Responsibility Act\xe2\x80\x9d o r the \xe2\x80\x9c Act\xe2\x80\x9d ). Subsequent to its 1995 enactment, the Act\nwas amended several times in respects not material to the analysis below, unless otherwise citcd.\n2Id \xc2\xa7 2(c)(2), 109 Stat. at 98 (citing U.S Const art 1, \xc2\xa78, cl 17)\n4 The Act provides that a member o f the A uthonty must be an individual who1 \xe2\x80\x9c (I) has knowledge and expertise\nin finance, management, and the organization or operation o f business or government, (2) does not provide goods\nor services to the District government [and does not have a close relative who does soj, (3) is not an officer or\nemployee o f the District government, and (4) maintains a primary residence in the District of Columbia or has\na primary place o f business in the District o f Columbia \xe2\x80\x9d \xc2\xa7 101(c), 109 Stat at 101 We understand that you have\ndetermined that Dr. Rivlin would meet all o f these cntena Accordingly, we do not address her qualifications for\nappointment\n\n109\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nId. \xc2\xa7 101(b), (c). Congress intended for the Authority to assist the government\n\nof the District of Columbia in combating its financial and management problems\nby developing a \xe2\x80\x9c comprehensive approach to fiscal, management, and structural\xe2\x80\x9d\nissues. Id. \xc2\xa7 2(a)(5), 109 Stat. at 98.\nDr. Rivlin was appointed by the President in 1996 as Vice Chair and a member\nof the Federal Reserve Board for a term of fourteen years. See generally 12 U.S.C.\n\xc2\xa7\xc2\xa7241-242(1994).\n\nII. Conflict of Interest Laws\nA. Section 208 and the Prohibition on Acts Affecting a Personal Financial\nInterest\nSection 208 of title 18 prohibits participation in any \xe2\x80\x9c particular matter\xe2\x80\x9d that\nmay affect an individual\xe2\x80\x99s personal financial interest. The statute applies to any\nofficer or employee of the executive branch of the United States\nGovernment, or of any independent agency of the United States,\na Federal Reserve bank director, officer, or employee, or an officer\nor employee of the District o f Columbia . . . .\n18 U.S.C. \xc2\xa7 208(a) (1994). A personal financial interest is imputed to an individual\nif \xe2\x80\x9c his spouse, minor child, general partner, organization in which he is serving\nas officer, director, trustee, general partner or employee\xe2\x80\x9d has a financial interest\nin a matter covered by \xc2\xa7 208. Id. Thus, the question arises whether the financial\ninterest o f the District of Columbia would be imputed to Dr. Rivlin by service\non the Authority concurrent with her service in the Federal Reserve Board.\nIn fact, the statute is not implicated in this circumstance because, for purposes\nof \xc2\xa7 208, the interests o f the United States include those o f the District of\nColumbia.5 By grouping the District of Columbia together with the executive\nbranch, independent agencies and Federal Reserve banks, \xc2\xa7 208 effectively defines\nthe interests of the United States that are protected under the statute as including\nthose of the District o f Columbia. See A pplicability o f 18 U.S.C. \xc2\xa7 208 to the\nFederal Communications Commission\xe2\x80\x99s Representative on the Board o f Directors\no f the Telecommunications Development Fund, 21 Op. O.L.C. 95, 96 (1997)\n\n(\xe2\x80\x9c FCC Opinion\xe2\x80\x9d ) (\xc2\xa7 208(a) applies only to conflicts between the federal govern\xc2\xad\nment and outside organizations and does not encompass intra-govemmental con\xc2\xad\nflicts between entities covered by the provision).\nThe inclusion of the District of Columbia along with executive branch entities\nis not incidental. Before 1989, \xc2\xa7\xc2\xa7203, 205, and 207 of title 18, like \xc2\xa7208, all\nincluded the District of Columbia among the federal entities comprising the\ninterests of the United States to be protected by the provisions. See generally\n5 Section 208, of course, would apply to Dr. Rivlin in her personal capacity.\n\n110\n\n\x0cAppointment o f Vice Chair o f Federal Reserve Board to Serve Concurrently as Chair o f the District\no f Columbia Financial Responsibility and Management Assistance Authority\n\n18 U.S.C. \xc2\xa7\xc2\xa7203, 205, 207 (1988). In 1989, however, Congress amended \xc2\xa7\xc2\xa7203,\n205, and 207 to separate the District of Columbia and specifically treat the\ninterests of the District as distinct from those of the United States.6 Although\nCongress made other changes to \xc2\xa7 208 at that time, it did not alter the treatment\nof the District. Thus, we may infer that Congress has intentionally treated the\ninterests of the United States and the District as identical for the purposes of\n\xc2\xa7 208.7\nIn addition, our interpretation of \xc2\xa7 208 in this circumstance is reinforced by\nopinions of this Office in connection with the earlier version of \xc2\xa7 205 that included\nthat the District of Columbia with the executive departments and agencies. Assist\xc2\xad\nant Attorney General Rehnquist concluded that because the District of Columbia\nwas included with executive departments and agencies in \xc2\xa7 205, matters involving\nthe District of Columbia were ones in which the United States had an interest\nwithin the meaning of the statute. Letter for Anthony L. Mondello, General\nCounsel, United States Civil Service Commission, from William H. Rehnquist,\nAssistant Attorney General, Office of Legal Counsel (Mar. 26, 1970). This Office\nreiterated that conclusion on subsequent occasions before the 1989 amendments.\nSee e.g., Memorandum for James L. Byrnes, Associate Deputy Attorney General,\nfrom Margaret C. Love, Special Counsel, Office of Legal Counsel, Re: Request\nfo r Approval o f Outside Employment at 1 n.l (Sept. 24, 1987); Government Law\xc2\xad\ny e rs\xe2\x80\x99 Pro Bono Activities in the District o f Columbia, 4B Op. O.L.C. 800 (1980);\nMemorandum for Daniel Skoler, Director, Office of Law Enforcement Programs,\nfrom Thomas E. Kauper, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Determination o f Property o f Federal Lawyers Representing Chil\xc2\xad\ndren in Juvenile Court Proceedings (Apr. 7, 1970).\nFinally, our conclusion is consistent with the general observation in an earlier\nopinion that the government ethics rule provide that \xe2\x80\x9c employees owe their duty\nto the government and its citizens, . . . not to the particular bureaucratic interests\nof their agency.\xe2\x80\x9d Memorandum for Philip B. Heymann, Deputy Attorney General,\nfrom Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re:\nCreation o f an Office o f Investigative Agency Policies at 6 (Oct. 26, 1993). Thus,\nwe need not examine here the particular interests of the Authority and the Federal\nReserve System; for purposes of \xc2\xa7208, it is sufficient that Congress has treated\nthe interests of the United States and the District of Columbia as singular.8 See\nFCC Opinion, 21 Op. O.L.C. at 96.\nt'See generally Ethics Reform Act o f 1989, Pub L No 101-194, 103 Stat 1716\n7 See generally CFTC v Schor, 478 U S 833, 846 (1986)\n8 Nonetheless, we understand that in order to avoid even the appearance of a conflict between her obligations\nas Vice Chair o f the Federal Reserve Board and Chair o f the Authonty. it is the intention ot the President and\nDr Rivlin that in the event that she is appointed as Chair o f the Authonty, she would recuse herself from all\nmatters relating to the issuance ot District o f Columbia bonds and the timing and nature of any other investment\ndecisions by the Distnct\n\nin\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nB. Section 205 and the Prohibition of Representation of Non-Federal\nInterests\nSection 205 of title 18 prohibits any \xe2\x80\x9c officer or employee of the United States\nin the executive, legislative, or judicial branch of the Government or in any agency\nof the United States\xe2\x80\x9d from, inter alia, acting as an\nagent or attorney for anyone before any department, agency, court,\ncourt-martial, officer, or civil, military, or naval commission in\nconnection with any covered matter in which the United States is\na party or has a direct and substantial interest.\n18 U.S.C. \xc2\xa7 205(a)(2) (1994). Unlike \xc2\xa7208, as we have already noted, \xc2\xa7205 treats\nthe District of Columbia separately from the United States and, thus, for purposes\nof this statute, the interests of the District and the federal government are not\nidentical. The separate treatment o f the United States and the District of Columbia\nunder \xc2\xa7 205 raises the question whether Dr. Rivlin, as an officer of the United\nStates covered by \xc2\xa7 205(a) in her capacity as Vice Chair of the Federal Reserve\nSystem, may represent the interests of the Authority before any \xe2\x80\x9c department [or]\nagency\xe2\x80\x9d of the federal government, because the Authority is identified in the\nstatute creating it as an entity of the District of Columbia government. \xc2\xa7 101(a),\n109 Stat. at 100.\nW e understand, as a preliminary matter, that the duties of the Chair of the\nAuthority will invariably involve the kinds of activities that, if done on behalf\nof a truly non-federal entity, would constitute acting as an agent before depart\xc2\xad\nments and agencies of the executive branch.9 Indeed, an express purpose of the\nAuthority is to assist the District of Columbia in \xe2\x80\x9c achieving an appropriate rela\xc2\xad\ntionship with the Federal Government,\xe2\x80\x9d \xc2\xa7 2(b)(4)(B), 109 Stat. at 98, and the\nAuthority is directed by statute to make recommendations to, among others, the\nPresident. \xc2\xa7 207(a), 109 Stat. at 133.\nIn addition, we assume for purposes of this analysis that the matters in which\nthe Chair may engage in covered representational activities are ones in which\nthe United States has a \xe2\x80\x9c direct and substantial interest.\xe2\x80\x9d An express duty of the\nAuthority is to examine, and make recommendations regarding, the \xe2\x80\x9c pro\xc2\xad\ngrammatic and structural relationship between the District government and the\nFederal Government.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa72(b)(7), 109 Stat. at 99, 207(a)(2). The D.C. Finan\xc2\xad\ncial Responsibility Act also observes that the problems of the District affect the\n\xe2\x80\x9c efficient operation of the Federal Government.\xe2\x80\x9d Id. \xc2\xa7 2(a)(9), 109 Stat. at 98.\nMoreover, the Authority is a creature of Congress\xe2\x80\x99s Article I power over the Dis\xc2\xad\ntrict and, we assume that any matters that might require or impel the Chair to\n9 A lthough the C hair is also likely to represent the Authority before members of Congress, \xc2\xa7205 does not cover\nsuch representational activities and, thus, this important aspect o f the C hair\xe2\x80\x99s duties is not implicated here\n\n112\n\n\x0cAppointment o f Vice Chair o f Federal Reserve Board to Serve Concurrently as Chair o f the District\no f Columbia Financial Responsibility and Management Assistance Authority\n\nrepresent the Authority before any executive department or agency would, in all\nreasonable likelihood, be ones that involved the interests of the United States.\nOur analysis of \xc2\xa7 205 turns on the nature of the interests to be represented by\nthe Chair of the Authority. Notwithstanding that the Authority was established\nas an \xe2\x80\x9c entity within the government of the District of Columbia,\xe2\x80\x9d the D.C. Finan\xc2\xad\ncial Responsibility Act, taken as a whole, reflects the peculiarly federal nature\nof the Authority and leads to the conclusion that the interests to be represented\nby the Chair and members of the Authority are, for purposes of \xc2\xa7 205, the interests\nof the United States. Thus, Dr. Rivlin\xe2\x80\x99s service as Chair of the Authority would\nnot be inhibited by \xc2\xa7 205.10\nAs we have observed, the Authority is a product and instrument of Congress\xe2\x80\x99s\nconstitutional authority over the District of Columbia. The statute itself and its\nlegislative history indicate clearly that the Authority was \xe2\x80\x9c created as part of the\nfederal government\xe2\x80\x99s responsibility for governing the District of Columbia,\xe2\x80\x9d and\nthat \xe2\x80\x9c [wjhile the Authority is established as part of the District of Columbia\ngovernment,\xe2\x80\x9d it was Congress\xe2\x80\x99s \xe2\x80\x9c strong\xe2\x80\x9d intention that it \xe2\x80\x9c function and operate\nin an independent oversight capacity\xe2\x80\x99\xe2\x80\x99 separate and apart from the existing District\ngovernment. H.R. Rep. No. 104-96, at 34, 52 (1995); see \xc2\xa72(b), 109 Stat. at\n98-99.\nFor example, it is significant that the statute defines the government of the Dis\xc2\xad\ntrict of Columbia to exclude the Authority. \xc2\xa7305(5), 109 Stat. at 152. Among\nthe principle functions of the Authority is overseeing the creation of, and compli\xc2\xad\nance with, a financial plan and budget for the District. See generally id. \xc2\xa7\xc2\xa7201204, 109 Stat. at 108-19. In this regard, the Authority must approve any financial\nplan and budget before it is effective, id. \xc2\xa7 201, and no bill passed by the District\nof Columbia Council and signed by the Mayor (or passed over the Mayor\xe2\x80\x99s veto)\nmay take effect without the approval of the Authority. Id. \xc2\xa7203. The Authority\nis subject only to those District of Columbia laws that Congress has specified\nin the Act and, in general, \xe2\x80\x9c [n]either the Mayor nor the Council may exercise\nany control, supervision, oversight, or review of the Authority or its activities.\xe2\x80\x9d\nId. \xc2\xa7 108(b)(1), 109 Stat. at 107. In any action brought by or against the Authority,\nthe Authority is to be represented by counsel of its choosing and \xe2\x80\x9c in no instance\nmay the Authority be represented by the Corporation Counsel of the District of\nColumbia.\xe2\x80\x9d 11 Id. \xc2\xa7 108(c).\n10O f course the requirements of \xc2\xa7 205 would continue to apply to Dr Rivlin in her personal capacity\n11 There are additional features that reflect the separation o f the A uthonty from the Distnct of Columbia For\nexample, no officer or employee o f the District government is eligible for appointment to the Authority. \xc2\xa7 101(c)(3),\n109 Stat. at 101. The staff of the Authonty may be appointed and paid without regard to the provisions of the\nD C Code and the procurement laws of the Distnct do not apply to the A uthonty Id \xc2\xa7 102(c)(2), 109 Stat at\n102 The A uthonty is not liable for any obligations or claim against the Distnct of Columbia. Id. \xc2\xa7 104, 109 Stat.\nat 105, amended by Omnibus Consolidated Rescissions and Appropnations Act of 1996, Pub L No 104-134, 110\nStat 1321-106 The Distnct may not borrow money, in certain circumstances, without the consent of the Authonty\n\xc2\xa7204, 109 Stat at 119\n\n113\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nIn addition to being distinct from the District government, the federal nature\nof the Authority is evidenced by the fact that the Authority\xe2\x80\x99s powers are delegated\nand vested by federal statute, pursuant to specific constitutional authority, in\nindividuals who are appointed by the President of the United States. Within this\nrubric of federal authority are specific provisions further reflecting the federal\ncharacter of the Authority, as well as its separateness from the District. For\nexample, the annual Federal payment to the District is, pursuant to the Act, depos\xc2\xad\nited into an escrow account held by the Authority, to then be allocated to the\nDistrict government in the Authority\xe2\x80\x99s discretion. Id. \xc2\xa7 205(a)(1), 109 Stat. at 131.\nFurthermore, any action brought against the Authority or otherwise arising, in\nwhole or in part, out of the D.C. Financial Responsibility Act, must be brought\nin federal, rather than District of Columbia, court. Id. \xc2\xa7 105(a), 109 Stat. at 105.\nThe Authority is vested also with federal subpoena power. It may issue subpoenas\nand enforce them in the district courts of the United States under the Federal\nRules of Civil Procedure. Id. \xc2\xa7 103(e), 109 Stat. at 103. A review of the D.C.\nFinancial Responsibility Act reveals a host of other examples.12\nWe also observe that our conclusion here is in accord with the interpretation\nthat this Office has applied to \xc2\xa7 205 in an analogous circumstance. This Office\nhas previously concluded that \xc2\xa7 205 does not prohibit a federal employee who\nis detailed to a state agency from representing the state agency before the federal\nagency from which he was detailed, where the detail and the representation of\nthe state\xe2\x80\x99s interests are made in connection with a statutory scheme the purposes\nof which would be furthered by such representational conduct. See generally\nA pplication o f 18 U.S.C. \xc2\xa7\xc2\xa7203 and 205 to Federal Employees D etailed to State\nand Local Governments, 4B Op. O.L.C. 498 (1980). Here, the D.C. Financial\n\nResponsibility Act provides for extensive cooperation between the Authority and\nfederal agencies, including the provision of federal data and the detailing, even\non a non-reimbursable basis, of federal employees to assist that Authority. In addi\xc2\xad\ntion, although the Act prohibits employees of the District of Columbia government\nfrom serving on the Authority, it applies no such limit to the service of federal\nofficials and employees. The general purposes of the Act and certain of its specific\nprovisions suggest that the appointment of a federal official to the Authority and\nher representation of the Authority before federal agencies is consistent with, and\nwould effectuate the purposes of, the Act.\n]2See e.g., \xc2\xa7 102(d), 109 Slat at 102 (upon request o f the Chair, any Federal department or agency may detail\nits personnel to the Authority on a reimbursable or non-reimbursable basis to assist the Authonty); id. \xc2\xa7 102(e),\nam ended by 110 Stat. at 1321-103 (federal employees who are employed by the A uthonty are treated as continuing\ntheir federal employment for purposes of the federal retirement system); id. (those Authonty employees who join\nin the federal government upon leaving the A uthonty are entitled to credit for the full penod of the individual\xe2\x80\x99s\nservice with the A uthonty for purposes of determining federal leave); id \xc2\xa7 103(f), amended by 110 Stat at 1321 \xe2\x80\x94\n102 (the A uthonty is authonzed to procure from the General Services Administration any administrative support\nservices that it may need); id \xc2\xa7 103(c)(1), 109 Stat at 103 (the Authonty is empowered to \xe2\x80\x9c secure directly\xe2\x80\x9d from\nany federal department or agency, with consent, any information it deems necessary to carry out its duties).\n\n114\n\n\x0cAppointment o f Vice Chair o f Federal Reserve Board to Serve Concurrently as Chair o f the District\no f Columbia Financial Responsibility and Management Assistance Authority\n\nBecause the Authority is an instrument of Congress\xe2\x80\x99s constitutional authority\nover the District of Columbia, a creature of federal law, vested with material\nattributes of federal authority, clearly and expressly distinct from the District of\nColumbia government, and composed of members appointed by the President, we\nconclude that the interests to be represented by the Authority are, for purposes\nof \xc2\xa7205, federal interests. Thus, if appointed as Chair of the Authority, Dr.\nRivlin\xe2\x80\x99s dual service would not implicate \xc2\xa7 205.\n\nIII. Dual Office-Holding\nThe fact that Dr. Rivlin would serve concurrently as Vice Chair of the Federal\nReserve Board and Chair of the Authority raises the question whether this dual\noffice-holding violates federal law. As a statutory matter,13 a federal official is\nprecluded from receiving compensation from more than one office. 5 U.S.C.\n\xc2\xa75533 (1994 & Supp. IV 1997). This Office has previously observed that the\nrepeal in 1964 of earlier legislation that prohibited dual office-holding, coupled\nwith the enactment of the current provision barring only dual compensation,\nimpliedly permits the concurrent holding of two offices so long as there is no\ndual compensation involved. Memorandum for James H. Thessin, Deputy Legal\nAdvisor, from Randolph D. Moss, Deputy Assistant Attorney General, Re: Dual\nOffice-Holding at 2 (Dec. 3, 1997) (\xe2\x80\x9cDual Office-Holding Opinion\xe2\x80\x9d ); Memo\xc2\xad\nrandum for Philip B. Heymann, Deputy Attorney General, from Walter Dellinger,\nAssistant Attorney General, Office of Legal Counsel, Re: Creation o f an Office\no f Investigative Agency Policies (Oct. 26, 1993) (\xe2\x80\x9c Investigative Agency\nOpinion\xe2\x80\x9d ); Dual Office o f Chief Judge o f Court o f Veterans Appeals and D irector\no f the Office o f Government Ethics, 13 Op. O.L.C. 241, 242 (1989). The proposed\nappointment of Dr. Rivlin would not violate the prohibition on dual compensation\nbecause the Chair and all members of the Authority serve without pay. \xc2\xa7 101(d),\n109 Stat. at 101.\nNor would Dr. Rivlin\xe2\x80\x99s dual office-holding run afoul of the incompatibility doc\xc2\xad\ntrine, which precludes dual office-holding arrangements when a single individual\nwould be authorized by virtue of one office to review her own actions taken in\n----- the-capacity- of- her- other- office.L4 See generally Investigative-Agency Opinion----------at 6-8. Here, the two offices in question are not connected by any review authority\nthat would implicate the incompatibility doctrine. See Memorandum for Arnold\nIntrater, General Counsel, Office of White House Administration, from John O.\n13 The Incompatibility Clause of the Constitution, U S Const art I, \xc2\xa76, cl 2, forbids members of Congress from\nholding any office under the United States Neither the Incompatibility Clause nor any other constitutional provision\nbars an executive branch official from holding two offices\n14 While this Office has continued to refer to the incompatibility doctrine in its opinions, we have reorganized\nthat \xe2\x80\x9c li]t is arguable that it has either fallen into desuetude or been repealed by statute \xe2\x80\x9d Memorandum for Edward\nC Schmults, Deputy Attorney General, from Theodore B Olson, Assistant Attorney General, Office o f Legal\nCounsel, Re Appointment o f D Lowell Jensen as Associate Attorney General at 3, 4 (June 14, 1983) ( \xe2\x80\x9c Associate\nAttorney General O pinion\xe2\x80\x9d ); see Dual Office-Holding Opinion at 4 (quoting Associate Attorney General Opinion)\n\n115\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nMcGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Dual\nOffice o f Executive Secretary o f N ational Security Council and Special Assistant\n\n(Mar. 1, 1988) (no incompatibility problem where office was not designed as\ncheck on the other); Memorandum for Fred F. Fielding, Counsel to the President,\nfrom Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: A vailability o f Hatch Act Exemption fo r Individual Holding Dual Appoint\xc2\xad\nments as a M em ber o f the White House Staff and D irector o f the White House\nConference on Productivity at 4 (Aug. 22, 1983) (finding no incompatibility\nproblem because neither office is \xe2\x80\x9c formally subordinate to the other\xe2\x80\x9d ); Appoint\xc2\xad\nment o f D eputy D irector o f the Council on International Economic Policy (CIEP)\nby Its Executive D irector, 1 Op. O.L.C. 28 (1977) (finding offices incompatible\n\nwhere official would be required to review his own actions).\n\nIV. Requirement that Federal Reserve Board Members Devote Their \xe2\x80\x9c Entire\nTime\xe2\x80\x9d to the Business of the Board\nAs a member of the Federal Reserve Board, Dr. Rivlin is required under \xc2\xa7241\nof title 12, to \xe2\x80\x9c devote [her] entire time to the business of the Board.\xe2\x80\x9d On its\nface, this requirement would not necessarily prohibit Dr. Rivlin from serving on\nthe Authority, although her performance of the responsibilities of her dual offices\nmust comply with the \xe2\x80\x9c entire-time\xe2\x80\x9d requirement. \xe2\x80\x9c This provision has not been\ninterpreted so literally as to preclude Board members from serving as members\nof commission or committees o f a governmental or quasi-govemmental nature\nestablished by statute or by Executive Order.\xe2\x80\x9d Memorandum for Governor\nBrimmer, Re: Service as member o f Advisory Committee on Regional Economic\nD evelopm ent (July 21, 1967) (\xe2\x80\x9c Opinion of Federal Reserve Board\xe2\x80\x9d ).\nThis Office has previously reviewed a comparable requirement in another statute\nin circumstances similar to those addressed here. Memorandum for the Attorney\nGeneral, from W. Wilson White, Assistant Attorney General, Office of Legal\nCounsel, Re: Appointm ent of University Dean as member o f Tennessee Valley\nAuthority (Nov. 8, 1957) (\xe2\x80\x9c TVA Opinion\xe2\x80\x9d ) (whether university dean, on leave\nfrom university, could serve concurrendy on the TVA and an advisory board to\nthe Department o f Agriculture). There, a federal official was subject to a prohibi\xc2\xad\ntion that he not \xe2\x80\x9c be engaged in any other business\xe2\x80\x9d outside of official duties.\nTVA Opinion at 1 (quoting 16 U.S.C. \xc2\xa7 831a(f)). The analysis of the TVA Opinion\nturned on the determination, principally a factual one, whether the second position\nis part-time and may be performed without impairing the full-time responsibilities\nimposed by the primary office. TVA Opinion at 2; see also Memorandum for\nLarry Eugene Temple, Special Counsel to the President, from Frank M.\nWozencraft, Assistant Attorney General, Office of Legal Counsel, Re: Dual\nservice a s an Executive Director o f the Inter-American Development Bank and\na D irector o f the Export-Import Bank o f Washington (Feb. 16, 1968) (\xe2\x80\x9c Export116\n\n\x0cAppointment o f Vice Chair o f Federal Reserve Board to Serve Concurrently as Chair o f the District\no f Columbia Financial Responsibility and Management Assistance Authority\n\nImport Bank Opinion\xe2\x80\x9d ) (analyzing, on factual grounds, whether service on an\nadvisory committee was compatible with full-time nature of federal official\xe2\x80\x99s\nduties).\nAs we have already noted, the Chair of the Authority is an uncompensated\nposition, \xc2\xa7 101(d), 109 Stat. at 101, suggesting that it may be filled on a parttime basis. Moreover, we understand that the President and Dr. Rivlin intend that\nthe position of Chair of the Authority be treated as a part-time position, empha\xc2\xad\nsizing the temporary nature of the Authority and its role in shifting responsibility\nto the District government. See id. \xc2\xa7 107, 109 Stat. at 106. You have explained\nthat Dr. Rivlin would seek adequate support and staffing to ensure that hers is\nan oversight role compatible with part-time responsibilities.15\nThis Office did not interpret the comparable full-time requirement for service\non the TVA as \xe2\x80\x9c an absolute bar\xe2\x80\x9d to any outside activities. TVA Opinion at 2.\nRather, because the duties of the second, part-time position would be \xe2\x80\x9c occa\xc2\xad\nsional\xe2\x80\x9d and \xe2\x80\x9c intermittent,\xe2\x80\x9d the TVA Opinion treated these features as evidence\nsuggesting that the position would be compatible with the official\xe2\x80\x99s full-time\nobligations. In addition, the TVA Opinion treated the uncompensated nature of\nthe secondary position as prima facie evidence that it is a part-time position\ncompatible with full-time duties. TVA Opinion at 2; see also Export-Import Bank\nOpinion at 2.\nThe Federal Reserve Board analyzes its entire-time requirement based upon\nwhether (1) the duties of the additional position would \xe2\x80\x9c substantially affect the\nBoard member\xe2\x80\x99s ability to give full attention to the affairs of the Board,\xe2\x80\x9d (2)\nwhether the second position was \xe2\x80\x9c completely foreign or unrelated to the Board\xe2\x80\x99s\nwork,\xe2\x80\x9d and (3) whether the duties of the second position \xe2\x80\x9c would in any way\ninvolve a conflict of interest, i.e., duties inconsistent with [the] duties [of] a Board\nmember.\xe2\x80\x9d Opinion of Federal Reserve Board at 1. The first of these factors is\nsimilar to that which this Office used in assessing the application of a comparable\nfull-time requirement, and the third factor, concerning conflicting duties, is\naddressed above in this memorandum. The second factor has been applied by\nthe Federal Reserve Board to permit a Board member to sit on the National Public\nAdvisory Committee on Regional Economic Development, based on the reasoning\n------- that, inter alia,-the functions of the regional economic-committee-\xe2\x80\x9c m ay-not-be--------directly related to the functions of the [Federal Reserve] Board, but, on the other\nhand, they are obviously not unrelated to the Board\xe2\x80\x99s functions, since the basic\npurpose of the Economic Development Act [creating the committee] is to maintain\nthe national economy at a high level and particularly to alleviate unemployment\nin certain areas of the country through Federal financial assistance for public\nworks and development facilities.\xe2\x80\x9d Opinion of Federal Reserve Board at 2. Simi15 Although we understand that the current Chair o f the Authority has performed his functions in a full-time\ncapacity, our conclusion is not altered. The Export-Import Bank Opinion observed that notwithstanding the fact\nthat the previous occupant had treated the office as full-time, there was sufficient evidence that the position could\nbe performed on a part-time basis Export-Import Bank Opinion at 2\n\n117\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nIarly, the Authority is charged with modifying and managing the District\xe2\x80\x99s fiscal\npolicies, see \xc2\xa7 2, 109 Stat. at 98, and Congress regarded such fiscal change as\nnecessary to the \xe2\x80\x9c long-term economic health\xe2\x80\x9d of the region. Id. \xc2\xa7 2(a)(8). Ulti\xc2\xad\nmately, however, this analysis is factual and forward looking and Dr. Rivlin would\nneed to work with the Federal Reserve Board and its General Counsel to comply\nwith the \xe2\x80\x9c entire-time\xe2\x80\x9d requirement.\n\nV. Conclusion\nFor the reasons stated, we conclude that Dr. Rivlin\xe2\x80\x99s dual service as Vice Chair\nof the Federal Reserve Board and Chair of the Authority would be consistent\nwith 18 U.S.C. \xc2\xa7\xc2\xa7 205 and 208. H er dual service would also have to comply with\nthe Federal Reserve Act\xe2\x80\x99s \xe2\x80\x9c entire-time\xe2\x80\x9d requirement.\nTODD DAVID PETERSON\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n118\n\n\x0c"


b'Application of 18 U.S.C. \xc2\xa7 205 to Proposed \xe2\x80\x9cMaster Amici\xe2\x80\x9d\n18 U .S.C . \xc2\xa7 205 precludes attorneys in the executive branch from serving as \xe2\x80\x9c m aster am ici\xe2\x80\x9d in\nthe C ourt o f Veterans A ppeals.\n\nMarch 12, 1992\nM e m o r a n d u m O p in io n f o r t h e C h ie f J u d g e\nU n it e d S ta tes C o u r t o f V e t e r a n s A p p e a l s\n\nYou have requested the Department of Justice\xe2\x80\x99s opinion whether 18 U.S.C.\n\xc2\xa7 205 would bar an attorney employed in the government from serving as a\n\xe2\x80\x9cmaster amicus\xe2\x80\x9d in the United States Court of Veterans Appeals. The Attor\xc2\xad\nney General has forwarded your request to our Office. We conclude that an\nexecutive branch attorney\xe2\x80\x99s service as a master amicus would be prohibited\nby the statute.\nI.\nYou are exploring methods for enlisting pro bono representation for vet\xc2\xad\nerans having cases before the Court of Veterans Appeals and believe that\nattorneys in the executive branch might provide that representation. Letter\nfor William P. Barr, Acting Attorney General, from Chief Judge Frank Q.\nNebeker, United States Court of Veterans Appeals, at 2 (Nov. 6, 1991)\n(\xe2\x80\x9cNebeker Letter\xe2\x80\x9d). As you observe, however, 18 U.S.C. \xc2\xa7 205 by its terms\nforbids an officer or employee of the executive branch, except \xe2\x80\x9cin the proper\ndischarge of his official duties,\xe2\x80\x9d from \xe2\x80\x9cactfing] as agent or attorney for pros\xc2\xad\necuting any claim against the United States\xe2\x80\x9d or \xe2\x80\x9cact[ing] as agent or attorney\nfor anyone before any department, agency, [or] court . . . in connection with\nany covered matter in which the United States is a party or has a direct and\nsubstantial interest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(1) & (2).\xe2\x80\x98\n1 A \xe2\x80\x9ccovered matter\xe2\x80\x9d is defined as \xe2\x80\x9cany judicial or other proceeding, application, request for a ruling\nor other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other\nparticular matter.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(h).\nThere are several exceptions to the prohibition in section 205, only one of which is even arguably\napplicable here. That exception allows an employee, \xe2\x80\x9cif not inconsistent with the faithful performance\no f his duties,\xe2\x80\x9d to represent a \xe2\x80\x9cperson who is the subject of disciplinary, loyalty, or other personnel\nContinued\n\n59\n\n\x0cIn an effort to avoid section 205\xe2\x80\x99s prohibition, you propose that govern\xc2\xad\nment attorneys act as \xe2\x80\x9cmaster amici\xe2\x80\x9d to the Court of Veterans Appeals pursuant\nto a rule to be adopted by the Court. A master amicus would \xe2\x80\x9cadvise the\nCourt of any nonfrivolous issue capable of being raised by the [veteran]\nappellant and assist the Court in understanding the Record and such issue(s).\xe2\x80\x9d\nSee Proposed Amendment to Rule 46, Rules of Practice and Procedure, U.S.\nCourt of Veterans Appeals (Proposed Rule 46), attached to Nebeker Letter.\nYou contemplate that the master amicus and the veteran would not have an\nattomey-client relationship. To attempt to avoid even the appearance of\nsuch a relationship, the Court would require service of all papers on the\nveteran as well as on the master amicus. Nebeker Letter at 2. You believe\nthat the activities of a master amicus would not be \xe2\x80\x9cof the kind contem\xc2\xad\nplated by the proscriptions of section 205,\xe2\x80\x9d especially in view of \xe2\x80\x9cthe strong\ngovernment policy in favor of just compensation for our nation\xe2\x80\x99s veterans\nand the non-adversarial nature of the [Veterans\xe2\x80\x99 Administration] claims adju\xc2\xad\ndication process.\xe2\x80\x9d Nebeker Letter at 2.\nIE.\n\nWe believe that a government employee serving as a master amicus would\n\xe2\x80\x9cact[] as agent or attorney for prosecuting [a] claim against the United States\xe2\x80\x9d\nand would \xe2\x80\x9cact[] as agent or attorney . . . before [a] department, agency, [or]\nc o u rt. . . in connection with [a] covered matter in which the United States is\na party or has a direct and substantial interest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(1) & (2).\nWe therefore conclude that section 205 bars government attorneys from serv\xc2\xad\ning as master amici.\nA.\nSection 205 forbids a government employee from acting as an agent or\nattorney \xe2\x80\x9cin connection with any covered matter in which the United States\nis a party or has a direct and substantial interest.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(2).\nCases before the Court of Veterans Appeals clearly are matters in which the\nUnited States has a direct and substantial interest, because it will have to\npay any claims upheld by the Court. You concur in this conclusion. Nebeker\nLetter at 2 (\xe2\x80\x9cthe United States has \xe2\x80\x98a direct and substantial interest\xe2\x80\x99 in the\nmatter of a veteran\xe2\x80\x99s claim\xe2\x80\x9d). Moreover, the Secretary of Veterans Affairs,\nin his official capacity, is a party. 38 U.S.C. \xc2\xa7\xc2\xa7 7261, 7263. The United\nStates thus is a party in the cases. Therefore, section 205 clearly applies to\nproceedings in the Court of Veterans Appeals.\n\'(....continued)\nadm inistration proceedings." 18 U.S.C. \xc2\xa7 205(d). Even that exception, however, does not appear\napplicable to cases in the Court of Veterans Appeals. See, e.g.. Office of Government Ethics Informal\nAdvisory O pinion 85x1 (1985) (veterans\xe2\x80\x99 claims before the Board o f Veterans\xe2\x80\x99 Appeals, with limited\nexceptions, could not come within the provision for \xe2\x80\x9c personnel administration proceedings,\xe2\x80\x9d and sec\xc2\xad\ntion 205 thus applies).\n\n60\n\n\x0cA separate basis for applying section 205 is that the claims pressed by\nappellants in the Court of Veterans Appeals are \xe2\x80\x9cagainst the United States.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 205(a)(1). The United States provides veterans, their depen\xc2\xad\ndents, or their survivors with benefits such as com pensation for\nservice-connected disability or death. 38 U.S.C. \xc2\xa7\xc2\xa7 1101-1163; see id. \xc2\xa7\n1110 (\xe2\x80\x9cthe United States will pay to any veteran . . . compensation as pro\xc2\xad\nvided in this subchapter\xe2\x80\x9d). Veterans\xe2\x80\x99 claims are first presented to the Secretary\nof Veterans Affairs. He rules on \xe2\x80\x9call questions of law and fact necessary to a\ndecision . . . under a law that affects the provision of benefits . . . to veterans or\nthe dependents or survivors of veterans.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 511(a). Those rulings are\nreviewable by the Board of Veterans\xe2\x80\x99 Appeals, id. \xc2\xa7 7104(a), and, in turn, the\nCourt of Veterans Appeals has \xe2\x80\x9cexclusive jurisdiction to review decisions of the\nBoard of Veterans\xe2\x80\x99 Appeals.\xe2\x80\x9d Id. \xc2\xa7 7252(a). The claims of veterans appealing\nthe denial of benefits through this process are \xe2\x80\x9cagainst the United States\xe2\x80\x9d in the\nevident sense that if the United States loses, it will have to pay. See also Office\nof Government Ethics Informal Advisory Opinion 85x1 (1985) (claims of veter\xc2\xad\nans in Board of Veterans\xe2\x80\x99 Appeals are covered by section 205).2\nYou suggest that the veterans\xe2\x80\x99 claims process is \xe2\x80\x9cbeneficial and paternal\xc2\xad\nistic rather than adversarial\xe2\x80\x9d in the stages before review by the Court of\nVeterans Appeals. Nebeker Letter at 1; see also Walters v. National A ss\xe2\x80\x99n o f\nRadiation Survivors, 473 U.S. 305, 309-11, 323-24, 333-34 (1985) (proceed\xc2\xad\nings before the Board of Veterans\xe2\x80\x99 Appeals are ex parte, and no government\nofficial appears in opposition to the veterans\xe2\x80\x99 claims). Whatever the nature\nof the prior proceedings, however, the Court of Veterans Appeals uses an\nadversary process. Its rules use much of the framework of the Federal Rules\nof Appellate Procedure. The Secretary of Veterans Affairs is represented by\nthe General Counsel of the Department. 38 U.S.C. \xc2\xa7 7263(a). Appellants\nmay be represented by their counsel. Id. \xc2\xa7 7263(b). In cases that proceed to\na decision in the Court of Veterans Appeals, the Secretary seeks, through\nthis adversary process, to defend the denial of veterans\xe2\x80\x99 claims. Thus, sec\xc2\xad\ntion 205 would apply to proceedings in the Court of Veterans Appeals, even\nif it did not apply to the earlier stages of the claims process.3\n2 Veterans\' claims are \xe2\x80\x9cagainst the United States\xe2\x80\x9d even though, as you state, the United States has a\n\xe2\x80\x9cstrong government policy in favor o f just compensation for our nation\xe2\x80\x99s veterans.\xe2\x80\x9d Nebeker Letter at\n2. Although the United States has an interest in the just compensation of veterans, it also has an interest\nin ensuring that benefits go only to veterans who have valid claims. Moreover, we do not believe that\nany policy interest is sufficient in itself to limit the terms of the prohibition in section 20S, although the\nexistence o f the policy interest might argue for a legislative initiative to change the statute.\n3 A letter from the Court of Veterans\xe2\x80\x99 Appeals Advisory Committee on Representation asserts that\n\xe2\x80\x9cmany aspects o f the traditional adversarial relationships between appellants and appellees do not exist\nin matters concerning veterans seeking review o f their claims.\xe2\x80\x9d Letter to Frank Q. Nebeker, C hief\nJudge, United States Court of Veterans Appeals, from Barry P. Steinberg, e l al., at 1 (July 9, 1991). In\nparticular, the letter states that \xe2\x80\x9cthe Department o f Veterans Affairs (VA) and its executive, the Secre\xc2\xad\ntary of Veterans Affairs, the respondent in all o f the Court\xe2\x80\x99s cases, see themselves as advocates of\nveterans\xe2\x80\x99 rights.\xe2\x80\x9d Id. Nevertheless, according to your letter, \xe2\x80\x9cCongress created the Court o f Veterans\nAppeals in the model and tradition of the federal courts of appeals." Nebeker Letter at 1. Moreover, as\nnoted above, the Court of Veterans Appeals uses adversary procedures. Thus, although the Secretary\xe2\x80\x99s\nattitude and approach may differ from that o f most litigants, the proceedings in the Court o f Veterans\nAppeals are plainly adversarial.\n\n61\n\n\x0cThe master amicus would act as \xe2\x80\x9cagent or attorney\xe2\x80\x9d for prosecuting a\nveteran\xe2\x80\x99s claim. He would fill the gap created by the veteran\xe2\x80\x99s lack of\nformal legal representation. The Court would appoint a master amicus only\n\xe2\x80\x9cwhere the appellant is without representation.\xe2\x80\x9d Proposed Rule 46. The\nmaster amicus would be obligated to \xe2\x80\x9cadvise the Court of any nonfrivolous\nissue capable of being raised by the appellant.\xe2\x80\x9d Id. Only attorneys qualified\nfor admission to the bar of the Court could serve as master amici. In effect,\nthe master amicus would be responsible for presenting the arguments that\nwould have been made by the veteran\xe2\x80\x99s lawyer if the veteran were repre\xc2\xad\nsented by retained counsel: the master amicus would offer the arguments\nthat could be made for the veteran, but not those that could support the\ngovernment\xe2\x80\x99s position. Thus, the master amicus would carry out virtually\nall of the functions of appellate counsel for the veteran.4\nTo be sure, Proposed Rule 46 is obviously crafted to avoid the appearance\nof a typical attomey-client relationship between the master amicus and the\nveteran. Proposed Rule 46, for example, would require that papers be served\non the veteran, as well as on the master amicus, in order to suggest that no\nattomey-client relationship exists. Nebeker Letter at 2.5 The master amicus,\nmoreover, arguably would not be the agent of the veteran in a formal sense,\nbecause the veteran would have no right to exercise immediate control over\nthe master amicus.\nNevertheless, as an initial matter, we believe that the proposal would\nachieve indirectly what plainly may not be done directly. The master am\xc2\xad\nicus, an attorney to be appointed only when an appellant is without\nrepresentation, would present all of the arguments that could be made for\nthe appellant. Unlike a usual amicus, the master amicus would neither rep\xc2\xad\nresent an interest of his own6 nor inform the court about discrete issues on\nwhich the court needs expert guidance. He would instead be brought into a\ncase under circumstances in which a court would ordinarily appoint not an\namicus, but counsel for the unrepresented party. He would thus perform a\nrole almost identical to that of appointed counsel and would not function as\namicus to the court in any ordinary or traditional sense. These circum\xc2\xad\nstances suggest that such a mechanism, as a practical matter, would be used\nto supply an attorney for an otherwise unrepresented veteran. If section 205\ncould be evaded in this way, the path would be clear for numerous programs\n4 T hat a m aster am icus would receive no pay for his services is irrelevant. Unlike 18 U.S.C. \xc2\xa7 203(a),\nsection 205 is not confined to receipt or acceptance of "any compensation for representational services.\xe2\x80\x9d\nS e e 18 U.S.C. \xc2\xa7 205(a)(1).\n5 O rdinarily, briefs are served on counsel representing a party, rather than on the party himself. See,\ne .g ., U.S. Vet. App. R. 25(b) (service o f papers to be made on representative of party); Fed. R. App. P.\n25(b) (service o f briefs to be made on counsel for a represented party); Fed. R. Civ. P. 5(b) (service to be\nm ade on counsel unless otherwise ordered by court).\n6 The Rules o f Practice and Procedure for the Court o f Veterans Appeals require the brief o f an amicus\nto state \xe2\x80\x9cthe interest of the amicus.\xe2\x80\x9d U .S. Vet. App. R. 29(b).\n\n62\n\n\x0cin other contexts in which government attorneys, in effect, prosecute claims\nagainst the government.\nThis danger cannot be avoided by arguing that proceedings in the Court\nof Veterans Appeals might be distinguished from other, more adversarial\nclaims adjudications in the government. As shown above, the master am\xc2\xad\nicus, in fact, will occupy an adversary role in proceedings before the Court\nof Veterans Appeals. Indeed, if the master amicus did not occupy such an\nadversary role and the appeals process followed the \xe2\x80\x9cbeneficial and paternalis\xc2\xad\ntic\xe2\x80\x9d model that you describe for those hearings that precede litigation before the\nCourt of Veterans Appeals, the work of the master amicus would frustrate the\nstatutory arrangements under which cases before the Court of Veterans Appeals\nare plainly intended to be adversary proceedings. See 38 U.S.C. \xc2\xa7 7263.\nAs A textual matter, section 205 reaches any person who \xe2\x80\x9cacts as agent or\nattorney\xe2\x80\x9d for a claimant. Thus, section 205 focuses on the function per\xc2\xad\nformed by the government employee, and its prohibition may cover persons\nwho are not formally designated as agents or attorneys for claimants. See\nalso United States v. Sweig, 316 F. Supp. 1148, 1157 (S.D.N.Y. 1970) (stat\xc2\xad\ning that \xe2\x80\x9cthe strict common-law notion of \xe2\x80\x98agency\xe2\x80\x99 does not necessarily\nexhaust the meaning of the prohibition\xe2\x80\x9d and that the statute should be given\n\xe2\x80\x9ca different and wider meaning\xe2\x80\x9d). Functionally, the master amicus would\nperform a role nearly identical to that of retained counsel. He therefore\nwould \xe2\x80\x9cact as\xe2\x80\x9d the attorney for the veteran - as, from your description, he is\nclearly intended to do.\nLike its statutory predecessor, section 205 \xe2\x80\x9cexpresses a public policy that\nit is improper for a Government employee to prosecute claims against the\nGovernment in a representative capacity,\xe2\x80\x9d and it protects \xe2\x80\x9cthe integrity of\nGovernment actions by preventing its employees from using actual or sup\xc2\xad\nposed influence in support of private causes.\xe2\x80\x9d H.R. Rep. No. 748, 87th\nCong., 1st Sess. 21 (1961) (\xe2\x80\x9cHouse Report\xe2\x80\x9d). Section 205 was intended to\nprevent the conflict of interest thought to arise from the \xe2\x80\x9copportunity for the\nuse of offical influence.\xe2\x80\x9d Id. A master amicus would have such an opportu\xc2\xad\nnity to the same extent as retained counsel. See also S. Rep. No. 2213, 87th\nCong., 2d Sess. 11 (1962) (statute aimed at \xe2\x80\x9crepresentational activities\xe2\x80\x9d).7\nWhatever the precise scope of the term \xe2\x80\x9cattorney\xe2\x80\x9d in section 205, we\nbelieve that the term covers such traditional \xe2\x80\x9crepresentational activities\xe2\x80\x9d as\npresenting the legal arguments of a party otherwise lacking representation.8\n\xe2\x80\x99Although section 205 is narrower than its predecessor statute, which extended to \xe2\x80\x9caidfing] or\nassist[ing]\xe2\x80\x9d in the prosecution of a claim, the change was intended to direct the statute m ore precisely to\nthe perceived problem o f official influence: \xe2\x80\x9c[T]he inclusion of the term \xe2\x80\x98aids or assists\xe2\x80\x99 would permit\na broad construction em bracing conduct not involving a real conflict of interest. However, acting as\nattorney or agent, which would afford the opportunity for the use of official influence, would continue to\nbe-prohibited.\xe2\x80\x9d House Report at 21. The functions to be performed by the m aster amicus would raise\nthe exact problem at which section 205 was aimed.\n* See a lso Office o f Government Ethics Informal Advisory Opinion 88x6 (1988) (\xe2\x80\x9cGenerally, public\nofficials are not perm itted to step outside o f their official roles to assist private entities or persons in\ntheir dealings with the Government.); Office of Government Ethics Informal Advisory Opinion 84x14\nContinued\n\n63\n\n\x0cBecause section 205 is a criminal statute, its construction could be gov\xc2\xad\nerned by the rule of lenity, under which a statute is to be read narrowly in\norder to favor a potential defendant. That rule comes into play, however,\nonly if \xe2\x80\x9ca reasonable doubt persists about a statute\xe2\x80\x99s intended scope even\nafter resort to \xe2\x80\x98the language and structure, legislative history, and motivating\npolicies\xe2\x80\x99 of the statute.\xe2\x80\x9d Moskal v. United States, 498 U.S. 103, 108 (1990)\n(citation omitted). The rule of lenity applies only if \xe2\x80\x9cthere is a \xe2\x80\x98grievous\nambiguity or uncertainty in the language and structure of the Act.\xe2\x80\x99\xe2\x80\x9d Chapman\nv. United States, 500 U.S. 453, 463 (1991) (citation omitted). After resort to\nthe language, structure, history, and motivating policies of section 205, we\nbelieve, for the reasons stated above, that there is no \xe2\x80\x9cgrievous ambiguity or\nuncertainty in the language and structure\xe2\x80\x9d of the statute and that section 205\nwould cover the proposed master amicus.\nWe therefore conclude that 18 U.S.C. \xc2\xa7 205 precludes attorneys in the execu\xc2\xad\ntive branch from serving as \xe2\x80\x9cmaster amici\xe2\x80\x9d in the Court of Veterans Appeals.\nDOUGLAS R. COX\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\'(....co n tin u ed )\n(1984) (section 205 \xe2\x80\x9cwas designed to prevent federal employees from engaging in representationaltype activities on behalf o f others in their dealings with the United States\xe2\x80\x9d); Bayless M anning, F ederal\nC o n flic t o f In te rest L a w 85 (1964) (\xe2\x80\x98T h e emphasis o f Section 205 is upon action in a representative\ncapacity, particularly in a situation involving direct confrontation between the government employee\nand o th er governm ent employees."); cf. A p p lica tio n o f 18 U.S.C. \xc2\xa7\xc2\xa7 2 03 an d 2 05 to F ederal E m ployees\nD e ta ile d to S ta te a n d L o c a l G overnm ents , 4B Op. O.L.C. 498, 499 (1980) (section 205 does not forbid\n\xe2\x80\x9cpurely m inisterial contacts\xe2\x80\x9d ).\nIn construing 18 U.S.C. \xc2\xa7 207, we have observed that \xe2\x80\x9c [a]n agency or representational relationship\nentails at least some degree o f control by the principal over the agent who acts on his or her behalf.\xe2\x80\x9d\nM em orandum for M ichael Boudin, D eputy Assistant Attorney General, A ntitrust Division, from J.\nM ichael Luttig, A ssistant Attorney G eneral, Office o f Legal Counsel, Re: A p p lica tio n o f 1 8 U .S.C. \xc2\xa7\n2 0 7 (a ) to P a rd o n R eco m m en d a tio n M a d e b y F o rm er P rosecutor, at 6 (Oct. 17, 1990) (citation omitted).\nS e e a ls o U n ite d S ta te s v. Schaltenbrand, 930 F.2d 1554, 1560-61 (1 1th Cir.) (defendant who had mini\xc2\xad\nm al role at a m eeting was not an \xe2\x80\x9cagent\xe2\x80\x9d under 18 U.S.C. \xc2\xa7 207(a) because he could not \xe2\x80\x9cmake binding\ncom m itm ents on [the supposed principal\'s] b e h a lf), cert, denied, 502 U.S. 1005 (1991). Although\nP roposed Rule 46 does not provide for the veteran to direct the m aster amicus, we do not believe that the\npossible lack o f control would shield the proposed arrangement from section 205. Our opinion discuss\xc2\xad\ning the relevance o f control under section 207 dealt with a former federal employee who performed no\ntraditional representational function but rather limited his participation to offering a \xe2\x80\x9ccharacter affida\xc2\xad\nvit" for a pardon applicant. In the present proposal, the m aster am icus would perform all the functions\no f appellate counsel, and the differences between the m aster amicus and a court-appointed counsel\nwould be so m arginal that the arrangement might be seen as a subterfuge to avoid section 205.\n\n64\n\n\x0c'