b'Presidential Authority to Permit Incursion\nInto Communist Sanctuaries in the\nCambodia-Vietnam Border Area\nCongress has clearly affirmed the President\xe2\x80\x99s authority to take all necessary measures to protect U.S.\ntroops in Southeast Asia. Having determined that the incursion into the Cambodia-Vietnam border\narea is such a necessary measure, the President has clear authority to order it.\nThe President\xe2\x80\x99s action with respect to the Cambodian border area, limited in time and in geography, is\nconsistent with the purposes which the Executive and the Congress have pursued since 1964.\nWhatever theoretical arguments might be raised with respect to the authority of the Commander in\nChief to act alone had there been no congressional sanction for our involvement in Southeast Asia,\nthere is no doubt as to the constitutionality of the action in light of the prior affirmance of Congress\nthat the Commander in Chief take all necessary measures to protect U.S. forces in Vietnam. Having\ndetermined the necessity, the Commander in Chief has the constitutional authority to act.\n\nMay 14, 1970\n\nMEMORANDUM OPINION FOR THE SPECIAL COUNSEL TO THE PRESIDENT*\nAlthough the authority to declare war is vested in the Congress, the President as\nCommander in Chief and sole organ of foreign affairs has constitutional authority\nto engage U.S. forces in limited conflict. International law has long recognized a\ndistinction between formal declared wars and undeclared armed conflicts. While\nthe precise division of constitutional authority between President and Congress in\nconflicts short of all-out war has never been formally delimited, there is no doubt\nthat the President with the affirmance of Congress may engage in such conflicts.\nCongress has clearly affirmed the President\xe2\x80\x99s authority to take all necessary\nmeasures to protect U.S. troops in Southeast Asia. Having determined that the\nincursion into the Cambodian border area is such a necessary measure, the\nPresident has clear authority to order it.\n\n*\nEditor\xe2\x80\x99s Note: This memorandum was addressed to Charles W. Colson, Special Counsel to the\nPresident. The cover memorandum explained as follows: \xe2\x80\x9cAttached is a memorandum regarding the\nauthority of the President to permit incursion into Communist sanctuaries in the Cambodia-Vietnam\nborder area.\xe2\x80\x9d As a postscript, the cover memorandum noted: \xe2\x80\x9c(Copy of \xe2\x80\x98The Legality of U.S.\nParticipation in the Defense of Vietnam,\xe2\x80\x99 reprinted from the Department of State Bulletin, and \xe2\x80\x98The\nLegality of the United States Position in Vietnam\xe2\x80\x99 by Eberhard P. Deutsch, Chairman of the American\nBar Association Committee on Peace and Law Through United Nations, also sent.)\xe2\x80\x9d On April 30, 1970,\ntwo weeks before the completion of this opinion, President Nixon had announced that \xe2\x80\x9ca combined\nAmerican and South Vietnamese operation\xe2\x80\x9d would target North Vietnamese \xe2\x80\x9csanctuaries on the\nCambodian-Vietnam border.\xe2\x80\x9d Address to the Nation on the Situation in Southeast Asia, Pub. Papers of\nPres. Richard M. Nixon 405, 407 (1970).\n\n313\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nI. The Commander in Chief Has Constitutional Authority to Engage\nU.S. Forces in Limited Conflicts, Which Is Unquestioned\nWhen He Has the Affirmance of Congress\nA. Constitutional Authority\nThe constitutional provisions which relate to the use of armed force divide\nauthority between the Congress and the President. Congress has the authority to\nprovide for the common defense (art. I, \xc2\xa7 8, cl. 1), to declare war (art. I, \xc2\xa7 8,\ncl. 11), to raise and support armies (art. I, \xc2\xa7 8, cl. 12), to provide and maintain a\nnavy (art. I, \xc2\xa7 8, cl. 13), and to make rules for governing the armed forces (art. I,\n\xc2\xa7 8, cl. 14). The President is designated Commander in Chief of the armed forces\n(art. II, \xc2\xa7 2, cl. 1). He is vested with the \xe2\x80\x9cexecutive Power\xe2\x80\x9d (art. II, \xc2\xa7 1, cl. 1) and\nis charged with the duty to take care that the laws be faithfully executed (art. II,\n\xc2\xa7 3). The nature of the executive power, as emphasized in the express authority to\nmake treaties, appoint ambassadors (art. II, \xc2\xa7 2, cl. 2), and receive ambassadors\n(art. II, \xc2\xa7 3), includes the authority to conduct the nation\xe2\x80\x99s foreign affairs. \xe2\x80\x9cThe\nPresident is the sole organ of the nation in its external relations, and its sole\nrepresentative with foreign nations.\xe2\x80\x9d United States v. Curtiss-Wright Exp. Corp.,\n299 U.S. 304, 319 (1936) (internal quotation omitted).\nThis division of authority, lacking precise delimitations, was clearly intended\nby the original draftsmen of the Constitution. They rejected the power of kings to\ncommit unwilling nations to war to further their own international political\nobjectives. At the same time, they recognized the need for quick executive\nresponse to rapidly developing international situations. The accommodation of\nthese two interests\xe2\x80\x94the prohibition of one-man commitment of a nation to war\nand the need for prompt executive response to international situations\xe2\x80\x94was\nreflected in the Constitutional Convention\xe2\x80\x99s decision to change the original\nwording from the power of Congress to make war to the power to Congress to\ndeclare war. The Founding Fathers intended to distinguish between the initiation\nof armed conflict, which is for Congress to determine, and armed response to\nconflict situations, which the Executive may undertake. See 3 The Papers of James\nMadison 1351\xe2\x80\x9353 (Henry D. Gilpin ed., 1841); 2 The Records of the Federal\nConvention of 1787 318\xe2\x80\x9319 (Max Farrand ed., 1966).\nB. Distinction Between War and Limited Conflict\nInternational Law has long recognized that countries engage in many forms of\narmed conflict short of all-out war. These include pacific blockades or quarantines, retaliatory bombardments and even sustained but limited combat. 2 Charles\nCheney Hyde, International Law: Chiefly as Interpreted and Applied by the\nUnited States \xc2\xa7\xc2\xa7 586\xe2\x80\x93592 (2d rev. ed. 1945); 2 L. Oppenheim, International Law:\nA Treatise \xc2\xa7\xc2\xa7 26\xe2\x80\x9356 (H. Lauterpacht ed., 7th ed. 1952). Early in our history, the\n\n314\n\n\x0cPresidential Authority to Permit Incursion Into Cambodia-Vietnam Border Area\n\nSupreme Court described these differences between war and armed conflict using\nthe terms \xe2\x80\x9csolemn war\xe2\x80\x9d and \xe2\x80\x9cimperfect war\xe2\x80\x9d:\nIf it be declared in form, it is called solemn, and is of the perfect\nkind; because one whole nation is at war with another whole nation;\nand all the members of the nation declaring war, are authorised to\ncommit hostilities against all the members of the other, in every\nplace, and under every circumstance. In such a war all the members\nact under a general authority, and all the rights and consequences of\nwar attach to their condition.\nBut hostilities may subsist between two nations more confined in\nits nature and extent; being limited as to places, persons, and things;\nand this is more properly termed imperfect war; because not solemn,\nand because those who are authorized to commit hostilities, act\nunder special authority, and can go no farther than to the extent of\ntheir commission.\nBas v. Tingy (The Eliza), 4 U.S. (4 Dall.) 37, 40 (1800) (opinion of Washington,\nJ.).\nWhile the Court termed both forms of military action \xe2\x80\x9cwar,\xe2\x80\x9d it marked the clear\ndistinction between declared war, as we have seen in this century in the two World\nWars, and undeclared armed conflicts, such as we have seen in Korea and in\nSoutheast Asia.\nC. Historic Recognition of Distinction\nAs has been chronicled many times, the United States throughout its history has\nbeen involved in armed conflicts short of all-out or declared war, from the\nUndeclared War with France in 1798\xe2\x80\x931800 to Vietnam. See, e.g., H.R. Rep. No.\n82-127 (1951); H.R. Doc. No. 84-443 (1956); James Grafton Rogers, World\nPolicing and the Constitution 92\xe2\x80\x93123 (1945). The precise number of involvements\nis a matter of some dispute, as is the legitimacy of them. Nevertheless they did\noccur and throw considerable light on the constitutional division of powers\nbetween the President and the Congress.\nOn some occasions in our history, such as the Undeclared War with France and\nthe Cuban Missile Crisis, Congress has, in advance, authorized military action by\nthe President without declaring war. Act of July 9, 1798, ch. 68, 1 Stat. 578; Pub.\nL. No. 87-733, 76 Stat. 697 (1962). Chief Justice Marshall, however, raised the\nquestion whether such authorization was necessary for the President to act with\nregard to the early conflict with France:\nIt is by no means clear that the president of the United States\nwhose high duty it is to \xe2\x80\x9ctake care that the laws be faithfully execut-\n\n315\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ned,\xe2\x80\x9d and who is commander in chief of the armies and navies of the\nUnited States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and\nsend into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce.\nLittle v. Barreme, 6 U.S. (2 Cranch) 170, 177 (1804). He held, however, where\nCongress has prescribed one course of action, the President is not free to choose\nanother. Id. at 177\xe2\x80\x9378.\nThere have been other times in history, such as the Mexican and Civil Wars,\nwhere Congress has ratified armed actions, previously undertaken by the President. The Supreme Court has upheld the authority of the President to act prior to\nthe action of Congress. Citing the Mexican War as an example, Justice Grier\nupheld Lincoln\xe2\x80\x99s imposition of a blockade prior to the convening of Congress. The\nPrize Cases, 67 U.S. (2 Black) 635, 659\xe2\x80\x9360 (1863).\nFrequently, Presidents have committed our armed forces to limited conflicts\nwithout any prior approval or direct ratification by Congress. President McKinley\xe2\x80\x99s action in committing 5,000 troops to an international force during the Boxer\nrebellion is a notable example. While Congress recognized the existence of the\nconflict, as evidenced by provision for combat pay (Act of Mar. 2, 1901, ch. 803,\n31 Stat. 895, 903), it did not declare war nor formally endorse the action. A federal\ncourt, however, reiterated the early recognition of limited or undeclared war:\nIn the present case, at no time was there any formal declaration of\nwar by the political department of this government against either the\ngovernment of China or the \xe2\x80\x9cBoxer\xe2\x80\x9d element of that government. A\nformal declaration of war, however, is unnecessary to constitute a\ncondition of war.\nHamilton v. McClaughry, 136 F. 445, 449 (C.C.D. Kan. 1905).\nPresident Taft more than once committed American troops abroad to protect\nAmerican interests. In his annual report to Congress in 1912, he reported the\nsending of some 2,000 Marines to Nicaragua and the use of warships and troops in\nCuba. H.R. Doc. No. 62-927, at 8\xe2\x80\x939, 21 (1912). He merely advised Congress of\nthese actions without requesting any statutory authorization. President Wilson\nordered General Pershing and more than 10,000 troops into Mexico in 1917 and\ncommitted approximately 12,000 troops to allied actions in Russia in 1918 to\n1920. No congressional action was requested or taken.\nThe authority of the President to commit troops in limited conflict is not, of\ncourse, unquestioned. There are Presidents who have doubted such authority and\nCongress has challenged it more than once. President Truman\xe2\x80\x99s commitment of\ntroops in Korea in response to a United Nations (\xe2\x80\x9cU.N.\xe2\x80\x9d) resolution (S.C. Res. 83,\n\n316\n\n\x0cPresidential Authority to Permit Incursion Into Cambodia-Vietnam Border Area\n\nU.N. Doc. S/RES/83 (June 27, 1950)) without prior approval of, or subsequent\nratification by, Congress led to the Great Debate of 1951.\nPresident Truman had relied upon his authority as Commander in Chief and\nupon resolutions of the U.N. Security Council declaring that armed aggression\nexisted in Korea and calling upon U.N. members to assist in halting that aggression. He cited the history of actions by the Commander in Chief to protect\nAmerican interests abroad. He characterized the U.N. Charter as the cornerstone or\nour foreign relations and singled out Article 39 which authorizes the Security\nCouncil to recommend action to members to meet armed aggression.\nThe President\xe2\x80\x99s opponents noted that all treaties are not self-executing and that,\nuntil implemented by Congress, non-self-executing treaties confer no new\nauthority on the President. Article 39, it was said, was not self-executing. Article\n43, which provides expressly for the commitment of troops by members in\naccordance with their constitutional processes, had been implemented to the extent\nof Congress authorizing troop agreements (United Nations Participation Act of\n1945, Pub. L. No. 79-264, \xc2\xa7 6, 59 Stat. 619, 621) but since no agreements had\nbeen entered into it was inoperative. Without any added treaty authorization, the\nPresident\xe2\x80\x99s action must be viewed solely in terms of his basic constitutional\nauthority, it was said, and this authority does not extend to long-term commitment\nof troops in numbers ranging up to 250,000.\nWhile various scholarly views were quoted on both sides of the issue (H.R.\nRep. No. 82-127 (1951)) and the congressional debate raged from January to\nApril, there was no legal resolution of the President\xe2\x80\x99s authority in light of the U.N.\nCharter or independent of it. Nevertheless it is clear that Congress acquiesced in\nthe President\xe2\x80\x99s action. See David Rees, Korea: The Limited War (1964); Merlo J.\nPusey, The Way We Go To War (1969).\nSince judicial precedents are virtually non-existent on this point, the question is\none which must of necessity be decided by historical practice. Viewed in this light,\ncongressional acquiescence in President Truman\xe2\x80\x99s action furnishes strong evidence that this use of his power as Commander in Chief was a proper one. This is\nparticularly true because, while a treaty may override a state statute under the\nsupremacy clause, Missouri v. Holland, 252 U.S. 416 (1920), it may not override a\nspecific limitation on the power of the President or of Congress, Reid v. Covert,\n354 U.S. 1 (1957).\nD. The Constitutional Posture Today\nUnder our Constitution it is clear that Congress has the sole authority to declare\nformal, all-out war. It is equally clear that the President has the authority to\nrespond immediately to attack both at home and abroad. Between these two lies\nthe grey area of commitment of troops in armed conflict abroad under either\nAmerican or international auspices. In this area, both the Congress and the President have acted in the past. There has been dispute, often bitter, as to how far the\n\n317\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nPresident may go alone on his constitutional authority. To date, however, it has\nalways been resolved in the political arena without final constitutional determination by the courts, and without a head-on clash between the Congress and the\nPresident. Whatever and wherever the line may be between congressional and\npresidential authority a House committee accurately observes: \xe2\x80\x9c\xe2\x80\x98Acting together,\nthere can be no doubt that all the constitutional powers necessary to meet the\nsituation are present.\xe2\x80\x99\xe2\x80\x9d H.R. Rep. No. 88-1708, at 4 (1964) (committee report on\nGulf of Tonkin resolution, quoting committee report on Formosa resolution).\nII. Congress Has Affirmed the President\xe2\x80\x99s Authority to Take\nNecessary Action to Protect U.S. Troops in Southeast Asia\nAlthough U.S. concern with the security of Southeast Asia dates from our\ninvolvement there during World War II, it was formalized in the signing and\nratification of the Southeast Asia Collective Defense Treaty. The area covered by\nthe treaty includes not only the territory of the Asian signatories but also the States\ndesignated in the protocol which was signed and ratified at the same time as the\ntreaty. These are Cambodia, Laos and the free territory under the jurisdiction of\nthe State of Vietnam. Pursuant to its treaty obligation, the United States for some\nyears maintained military advisers in Vietnam and provided other military\nassistance to the Republic of Vietnam.\nWhen U.S. naval forces in the Gulf of Tonkin were attacked in August 1964,\nthe President took direct air action against the North Vietnamese. He also requested Congress \xe2\x80\x9cto join in affirming the national determination that all such attacks\nwill be met\xe2\x80\x9d and asked for \xe2\x80\x9ca resolution expressing the support of the Congress for\nall necessary action to protect our Armed Forces and to assist nations covered by\nthe SEATO [Southeast Asia Treaty Organization]Treaty.\xe2\x80\x9d H.R. Doc. No. 88-333,\nat 2 (1964).\nOn August 10, 1964, Congress responded with a resolution which \xe2\x80\x9capproves\nand supports the determination of the President, as Commander in Chief, to take\nall necessary measures to repel any armed attack against the forces of the United\nStates and to prevent further aggression.\xe2\x80\x9d Pub. L. No. 88-408, \xc2\xa7 1, 78 Stat. 384,\n384. It was in connection with this resolution that Congress noted that whatever\nthe limits of the President acting alone might be, whenever Congress and the\nPresident act together \xe2\x80\x9c\xe2\x80\x98there can be no doubt\xe2\x80\x99\xe2\x80\x9d of the constitutional authority.\nH.R. Rep. No. 88-1708, at 4 (1964) (committee report on Gulf of Tonkin resolution, quoting committee report on Formosa resolution).\nIn the debates in the Senate on this resolution it is clear that the Commander in\nChief was supported in taking whatever steps were necessary in his judgment to\nprotect American forces. The floor leader, Senator Fulbright, noted on August 6,\n1964 that the resolution \xe2\x80\x9cwould authorize whatever the Commander in Chief feels\nis necessary.\xe2\x80\x9d 110 Cong. Rec. 18,403. He observed: \xe2\x80\x9cIn a broad sense, the joint\nresolution states that we approve of the action taken with regard to the attack on\n\n318\n\n\x0cPresidential Authority to Permit Incursion Into Cambodia-Vietnam Border Area\n\nour own ships, and that we also approve of our country\xe2\x80\x99s effort to maintain the\nindependence of South Vietnam.\xe2\x80\x9d Id. at 18,407. When Senator Cooper inquired:\n\xe2\x80\x9cIn other words we are now giving the President advance authority to take whatever action he may deem necessary respecting South Vietnam and its defense, or\nwith respect to the defense of any other country included in the treaty?,\xe2\x80\x9d Senator\nFulbright replied: \xe2\x80\x9cI think that is correct.\xe2\x80\x9d Id. at 18,409.\nThe Gulf of Tonkin Resolution expresses broad support for the Commander in\nChief and recognizes the need for broad latitude to respond to situations which\nmay develop. Pub. L. No. 88-408, 78 Stat. 384 (1964). Of particular concern to the\nCongress, as well as to the President, was the protection of American forces and\nthe security of South Vietnam.\nWhile the Gulf of Tonkin Resolution was the first major congressional affirmation of the President\xe2\x80\x99s actions in responding to the situation in Southeast Asia, it is\nnot the only such affirmation. When bombing of military targets in North Vietnam\nwas undertaken in 1965, the President requested a supplemental appropriation for\nthe military. In his message of May 4, 1965, he emphasized:\nThis is not a routine appropriation. For each Member of Congress\nwho supports this request is also voting to persist in our effort to halt\nCommunist aggression in South Vietnam. Each is saying that the\nCongress and the President stand united before the world in joint determination that the independence of South Vietnam shall be preserved and Communist attack will not succeed.\nH.R. Doc. No. 89-157, at 1 (1965).\nThe requested resolution was adopted on May 7, 1965. Pub. L. No. 89-18, 79\nStat. 109.\nSince that time Congress has repeatedly adopted legislation recognizing the\nsituation in Southeast Asia, providing funds to carry on U.S. commitments and\nproviding special benefits for troops stationed there. There is long-standing\ncongressional recognition of the U.S. commitment in Southeast Asia.\nIII. The President\xe2\x80\x99s Action With Respect to Cambodia Is Consistent\nWith His Obligations as Commander in Chief and With\nCongressional Policy Regarding Southeast Asia\nRecognizing that Communist troops have been occupying territory on the\nVietnam-Cambodian border and using it as a sanctuary from which to launch their\nattacks into Vietnam and against American forces there, the Commander in Chief\nhas ordered limited incursions into this border area in order to destroy the\nsanctuaries. He has made a tactical judgment consonant with his responsibility as\nCommander in Chief, and consistent with the announced congressional policy of\n\n319\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ntaking \xe2\x80\x9call necessary measures to repel any armed attack against the forces of the\nUnited States and to prevent further aggression.\xe2\x80\x9d\nAs noted in Part I above, from the time of the drafting of the Constitution it has\nbeen clear that the Commander in Chief has the authority to take prompt action to\nprotect American lives in situations of armed conflict. Whether it be a formal war\ndeclared by Congress or an undeclared war, it is the Commander in Chief who\ndetermines how war will be made and what tactics are necessary to protect\nAmerican lives.\nIn ratifying the SEATO Treaty and accompanying protocol, Congress has\nrecognized the close security link among the various nations in the area. In\nadopting the Gulf of Tonkin Resolution, it affirmed its determination to protect\nU.S. forces in the area. In supporting the supplemental appropriation in 1965, it\nrecognized that the protection of U.S. troops and the prevention of infiltration\nmight necessitate going beyond the boundaries of South Vietnam.\nThe President\xe2\x80\x99s action with respect to the Cambodian border area, limited in\ntime and in geography, is consistent with the purposes which the Executive and\nthe Congress have pursued since 1964. Whatever theoretical arguments might be\nraised with respect to the authority of the Commander in Chief to act alone had\nthere been no congressional sanction for our involvement in Southeast Asia, there\nis no doubt as to the constitutionality of the action in light of the prior affirmance\nof Congress that the Commander in Chief take all necessary measures to protect\nU.S. forces in Vietnam. Having determined the necessity, the Commander in Chief\nhas the constitutional authority to act.\nWILLIAM H. REHNQUIST\nAssistant Attorney General\nOffice of Legal Counsel\n\n320\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 207(f) to Public Relations\nActivities Undertaken for a Foreign Corporation\nControlled by a Foreign Government\nA foreign corporation is a \xe2\x80\x9cforeign entity\xe2\x80\x9d under 18 U.S.C. \xc2\xa7 207(f) if it exercises sovereign authority\nor functions de jure or de facto.\nA former official\xe2\x80\x99s proposed activities are not prohibited by section 207(f)(1) if the former official does\nnot provide those services on behalf of a \xe2\x80\x9cforeign entity,\xe2\x80\x9d regardless of whether the former official\xe2\x80\x99s\nservices incidentally benefit the foreign entity\xe2\x80\x99s interests.\nWhere the former official does provide services on behalf of a \xe2\x80\x9cforeign entity,\xe2\x80\x9d the proposed public\nrelations and media activities would fall within the scope of section 207(f)(1) if the former official\nacts with the requisite intent to influence a decision of an officer or employee of the United States\ngovernment.\n\nAugust 13, 2008\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF COMMERCE\nSection 207(f) of title 18, United States Code, prohibits former government\nofficials from \xe2\x80\x9crepresent[ing]\xe2\x80\x9d or \xe2\x80\x9caid[ing] or advis[ing]\xe2\x80\x9d a \xe2\x80\x9cforeign entity\xe2\x80\x9d under\ncertain circumstances within one year of leaving government service. 18 U.S.C.\n\xc2\xa7 207(f)(1) (2000). Your office has sought our opinion about the application of\nthis prohibition to proposed public relations and media activities of a former senior\nofficial of the Department of Commerce on behalf of a foreign corporation that is\nowned and controlled by an instrumentality of a foreign government. That request\nraises three questions: (1) whether the foreign corporation is a \xe2\x80\x9cforeign entity\xe2\x80\x9d for\npurposes of section 207(f); (2) if not, whether the proposed activities are nevertheless prohibited because the foreign government supported the foreign corporation\xe2\x80\x99s efforts to influence the United States government; and (3) if the foreign\ncorporation is a \xe2\x80\x9cforeign entity,\xe2\x80\x9d whether the proposed activities fall within the\nclass of activities that section 207(f)(1) prohibits. 1\nFor the reasons described below, we conclude that a foreign corporation is a\n\xe2\x80\x9cforeign entity\xe2\x80\x9d under section 207(f) if it exercises sovereign authority or functions de jure (i.e., by formal delegation) or de facto. Based on the information\nprovided, however, we are unable to reach a conclusion about whether the\nparticular foreign corporation described in your letter is such a \xe2\x80\x9cforeign entity.\xe2\x80\x9d\n1\nLetter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from\nJohn J. Sullivan, General Counsel, Department of Commerce (Nov. 23, 2005) (\xe2\x80\x9cCommerce Letter\xe2\x80\x9d).\nWe also sought and received the views of the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d). See Letter for\nSteven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from Marilyn L.\nGlynn, General Counsel, Office of Government Ethics (Dec. 12, 2005) (\xe2\x80\x9cOGE Letter\xe2\x80\x9d).\n\n115\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nWe further conclude that the former official\xe2\x80\x99s proposed activities are not\nprohibited by section 207(f)(1) if the former official does not provide those\nservices on behalf of a \xe2\x80\x9cforeign entity,\xe2\x80\x9d regardless of whether the former official\xe2\x80\x99s\nservices incidentally benefit the foreign entity\xe2\x80\x99s interests. Where the former\nofficial does provide services on behalf of a \xe2\x80\x9cforeign entity,\xe2\x80\x9d however, we believe\nthat the proposed public relations and media activities would fall within the scope\nof section 207(f)(1), if the former official acts with the requisite intent to influence\na decision of an officer or employee of the United States government.\nI.\nYour letter states that the foreign corporation at issue is a subsidiary of company owned and controlled by an instrumentality of a foreign government. The\nforeign government originally established the parent corporation as a state-owned\ncompany with overall responsibility for the administration and development of the\nforeign government\xe2\x80\x99s offshore petroleum operations. The parent company later\ntransferred these operational and commercial interests to the subsidiary company\nat issue here.\nThe subsidiary made a public offer to purchase a United States oil and gas\ncompany. The bid was to be financed partly through loans from the subsidiary\xe2\x80\x99s\nstate-owned parent corporation and partly from a foreign bank, also owned by the\nforeign government. In response to criticism of the bid from members of Congress\nand others in the United States, the foreign government made public statements\ndemanding that the United States government refrain from interfering in the\nproposed transaction. While the bid was pending, a communications and media\nfirm asked a former senior official of the Department of Commerce to perform\nwork as a consultant on behalf of the foreign corporation. The proposed work\nwould have included writing op-ed pieces and articles supporting the purchase in\nnewspapers, magazines, and trade journals, and responding to reporters who\ncontacted him about the matter. The former official did not plan to meet with any\nU.S. government officials on behalf of the foreign corporation, nor did he plan to\nact as a lawyer, agent, or other official representative for the company. Although\nthe one-year period in which section 207(f) would have applied has expired, your\noffice has advised that the questions raised in your letter are recurring ones and\nthat it continues to seek our opinion on the subject.\nII.\nWe begin with the question whether the foreign corporation at issue is a \xe2\x80\x9cforeign entity\xe2\x80\x9d for purposes of 18 U.S.C. \xc2\xa7 207(f). Under that provision, former\nsenior officials of the federal government are subject to a temporary postemployment restriction on activities conducted on behalf of a \xe2\x80\x9cforeign entity.\xe2\x80\x9d\n\n116\n\n\x0cPublic Relations Activities Undertaken for a Foreign Corporation\n\nSection 207(f)(1) provides that for one year after leaving government employment,\na former senior official may not knowingly:\n(A) represent[] a foreign entity before any officer or employee of any\ndepartment or agency of the United States with the intent to influence a decision of such officer or employee in carrying out his or her\nofficial duties, or\n(B) aid[] or advise[] a foreign entity with the intent to influence a decision of any officer or employee of any department or agency of the\nUnited States, in carrying out his or her official duties.\n18 U.S.C. \xc2\xa7 207(f)(1). A \xe2\x80\x9cforeign entity\xe2\x80\x9d for purposes of the restriction is \xe2\x80\x9cthe\ngovernment of a foreign country as defined in section 1(e) of the Foreign Agents\nRegistration Act of 1938, as amended, or a foreign political party as defined in\nsection 1(f) of that Act.\xe2\x80\x9d Id. \xc2\xa7 207(f)(3). A \xe2\x80\x9cgovernment of a foreign country\xe2\x80\x9d\nunder the Foreign Agents Registration Act (\xe2\x80\x9cFARA\xe2\x80\x9d), in turn,\nincludes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the\nUnited States, or over any part of such country, and includes any\nsubdivision of any such group and any group or agency to which\nsuch sovereign de facto or de jure authority or functions are directly\nor indirectly delegated.\n22 U.S.C. \xc2\xa7 611(e) (2000). 2\nUnder this definition, we agree with the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d)\nthat ownership or control by a foreign government, standing alone, does not\nnecessarily make a foreign corporation a \xe2\x80\x9cforeign entity\xe2\x80\x9d for purposes of 18 U.S.C.\n\xc2\xa7 207(f). See OGE, Summary of Post-Employment Restrictions of 18 U.S.C. \xc2\xa7 207, at\n11 (July 29, 2004) (\xe2\x80\x9cSummary of Post-Employment Restrictions\xe2\x80\x9d) (attachment to\nMemorandum to Designated Agency Ethics Officials, General Counsels and\nInspectors General, from Marilyn L. Glynn, Acting Director, Office of Government\nEthics, Re: Reissuance of Post-Employment Summary, DO-04-023 (July 29, 2004))\n2\n\nWe note that this statutory definition of \xe2\x80\x9cgovernment of a foreign country\xe2\x80\x9d differs significantly\nfrom definitions of \xe2\x80\x9cforeign government\xe2\x80\x9d or \xe2\x80\x9cforeign state\xe2\x80\x9d found elsewhere in the United States Code.\nFor instance, a \xe2\x80\x9cforeign government\xe2\x80\x9d for purposes of foreign gift rules is defined to mean \xe2\x80\x9cany unit of\nforeign governmental authority,\xe2\x80\x9d \xe2\x80\x9cany international or multinational organization whose membership is\ncomposed of any unit of foreign government,\xe2\x80\x9d and \xe2\x80\x9cany agent or representative of any such unit or\nsuch organization, while acting as such.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7342(a)(2) (2000). Similarly, the Foreign\nSovereign Immunities Act defines \xe2\x80\x9cforeign state\xe2\x80\x9d to mean any \xe2\x80\x9cseparate legal person . . . which is an\norgan of a foreign state . . . or a majority of whose shares or other ownership interest is owned by a\nforeign state . . . and which is neither a citizen of a State of the United States . . . nor created under the\nlaws of any third country.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1603 (2000).\n\n117\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\n(available at http://www.oge.gov/OGE-Advisories/Legal-Advisories/Attachment-toDO-04-023--Summary-of-Post-Employment-Restrictions-of-18-U-S-C--\xc2\xa7-207/, last\nvisited Aug. 15, 2014). The touchstone of the statute\xe2\x80\x99s definition is instead whether\nan entity \xe2\x80\x9cexercis[es] sovereign de facto or de jure political jurisdiction over [all or\npart of a foreign] country,\xe2\x80\x9d or exercises \xe2\x80\x9csuch sovereign de facto or de jure authority\nor functions\xe2\x80\x9d by delegation. 22 U.S.C. \xc2\xa7 611(e). Because foreign corporations\ngenerally do not themselves have \xe2\x80\x9csovereign . . . political jurisdiction over [a]\ncountry\xe2\x80\x9d but rather exercise any sovereign powers they may possess by delegation,\nwe focus on the latter portion of 22 U.S.C. \xc2\xa7 611(e), which states that the term\n\xe2\x80\x9cforeign entity\xe2\x80\x9d includes an entity that exercises \xe2\x80\x9csovereign de facto or de jure\nauthority or functions\xe2\x80\x9d by \xe2\x80\x9cdirect[] or indirect[]\xe2\x80\x9d delegation from a foreign government. Id. Under this portion of the statutory definition, as OGE has advised, \xe2\x80\x9c[a]\nforeign commercial corporation will not generally be considered a \xe2\x80\x98foreign entity\xe2\x80\x99\nfor purposes of section 207(f) unless it exercises the functions of a sovereign\xe2\x80\x9d as\nspecified in section 611(e), i.e., the exercise of \xe2\x80\x9cpolitical jurisdiction over . . . any\npart of [a foreign] country.\xe2\x80\x9d Summary of Post-Employment Restrictions at 11;\naccord OGE, Letter to a Private Attorney, Informal Advisory Ltr. 03x1, 2003 WL\n23675077 (Jan. 2) (\xe2\x80\x9cOGE Advisory Letter\xe2\x80\x9d).\nWhatever the precise limits of \xe2\x80\x9csovereign political jurisdiction,\xe2\x80\x9d however, it is\nplain that not every governmental action involves the exercise of a \xe2\x80\x9csovereign\nauthority or function\xe2\x80\x9d: some governmental actions are merely \xe2\x80\x9cproprietary\xe2\x80\x9d or\n\xe2\x80\x9ccommercial\xe2\x80\x9d in nature, see Officers of the United States Within the Meaning of\nthe Appointments Clause, 31 Op. O.L.C. 74, 90 (2007) (citing Opinion of the\nJustices, 3 Greenl. (Me.) 481, 483 (1822)), a distinction that OGE has recognized\nin assessing whether a foreign corporation is a \xe2\x80\x9cforeign entity\xe2\x80\x9d under section 207,\nsee OGE Advisory Letter, 2003 WL 23675077, at *2 (advising that a foreign\ngovernment-owned corporation that performed \xe2\x80\x9cstrictly commercial\xe2\x80\x9d tasks was\nnot a \xe2\x80\x9cforeign entity\xe2\x80\x9d under section 207(f)). A government does not exercise\nsovereign authority, for example, when it elects to act as a \xe2\x80\x9cmarket participant\xe2\x80\x9d or\nperform \xe2\x80\x9cstrictly commercial\xe2\x80\x9d functions. See New Energy Co. v. Limbach, 486\nU.S. 269, 277 (1988) (distinguishing a state\xe2\x80\x99s activities in its \xe2\x80\x9cdistinctive governmental capacity\xe2\x80\x9d from activities in its \xe2\x80\x9cmore general capacity of a market participant,\xe2\x80\x9d such as when it \xe2\x80\x9cmanufacture[s] and sell[s] cement\xe2\x80\x9d); OGE Advisory\nLetter, 2003 WL 23675077, at *2. Even in circumstances where a government has\nreserved a monopoly for itself or a government-owned corporation in the relevant\nmarket, it may perform proprietary or commercial functions that are not uniquely\n\xe2\x80\x9csovereign\xe2\x80\x9d but rather are common to public and private entities alike. When\nperforming them, a government does not exercise regulatory authority, execute or\nenforce the law, or, more generally, take actions that are associated with the\nexercise of \xe2\x80\x9csovereign political jurisdiction\xe2\x80\x9d over a country within the meaning of\n22 U.S.C. \xc2\xa7 611(e). Thus, we agree with OGE that a foreign government owned\ncorporation that performs \xe2\x80\x9cstrictly commercial\xe2\x80\x9d functions is not a \xe2\x80\x9cforeign entity\xe2\x80\x9d\n\n118\n\n\x0cPublic Relations Activities Undertaken for a Foreign Corporation\n\nfor purposes of section 207(f). See OGE Advisory Letter, 2003 WL 23675077, at\n*2.\nIn sum, the determination whether a foreign commercial corporation is a \xe2\x80\x9cforeign entity\xe2\x80\x9d for purposes of section 207(f) depends on whether the corporation\npossesses delegated authority or performs functions that involve the exercise of\n\xe2\x80\x9csovereign . . . political jurisdiction,\xe2\x80\x9d which, at a minimum, excludes foreign\ncorporations that perform only proprietary or commercial functions that may be\nperformed by a private entity without any governmental delegation. Applying this\ninquiry to a corporation owned or controlled by a foreign government requires\nclose attention to the authority the company exercises and the functions it performs, both by formal delegation from a foreign government and in practice. See\n22 U.S.C. \xc2\xa7 611(e) (\xe2\x80\x9cgovernment of a foreign country . . . includes . . . any group\nor agency to which such sovereign de facto or de jure authority or functions\nare . . . delegated\xe2\x80\x9d) (emphasis added); see also OGE Advisory Letter, 2003 WL\n23675077, at *2 (examining the authority and functions exercised by a foreign\ncorporation in practice).\nWe lack sufficient information to reach a conclusion about whether the foreign\ncorporation at issue is a \xe2\x80\x9cforeign entity\xe2\x80\x9d for purposes of 18 U.S.C. \xc2\xa7 207(f). Many\nof the functions it performs (\xe2\x80\x9cpetroleum exploration, development, production,\nand sales activities,\xe2\x80\x9d Commerce Letter at 6) could be proprietary or commercial,\nrather than sovereign, in nature. Your letter, however, describes other authority or\nfunctions (\xe2\x80\x9cadministration and development of offshore petroleum operations with\nforeign oil and gas companies,\xe2\x80\x9d Commerce Letter at 5) that may be sovereign,\ndepending on the manner in which they are conducted. As part of the \xe2\x80\x9cadministration and development of offshore petroleum operations with foreign oil and gas\ncompanies,\xe2\x80\x9d for example, the foreign corporation might have political authority to\nexclude others from access to the foreign country\xe2\x80\x99s offshore oil and gas reserves\nby setting policy governing oil and gas offshore operations, or by granting licenses\nfor oil and gas extraction. On the other hand, the \xe2\x80\x9cadministration and development\nof offshore petroleum operations\xe2\x80\x9d might only involve purely commercial activities\nin the offshore oil and gas industries that can be performed without any delegation\nof \xe2\x80\x9csovereign\xe2\x80\x9d authority. Without more information about the details of the\nparticular authorities and functions of the foreign corporation, however, we cannot\ndetermine whether it performs any sovereign functions or whether its functions are\ninstead \xe2\x80\x9cstrictly commercial.\xe2\x80\x9d Therefore, we are unable to determine whether the\nforeign corporation in question is a \xe2\x80\x9cforeign entity\xe2\x80\x9d under 18 U.S.C. \xc2\xa7 207(f).\nIII.\nYour office also has asked whether, even if the foreign corporation is not a\n\xe2\x80\x9cforeign entity,\xe2\x80\x9d and even though the former Commerce official did not propose to\nwork on behalf of the foreign government, the prohibition in section 207(f)(1)\nwould nonetheless bar the proposed consulting engagement \xe2\x80\x9cif the [foreign\n\n119\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\ngovernment] is actively supporting the company\xe2\x80\x99s efforts to influence the United\nStates Government\xe2\x80\x9d and has a financial interest in the matter to which the former\nofficial\xe2\x80\x99s activities would be addressed. Commerce Letter at 6. As we understand\nthe facts, the foreign government made public statements supporting the foreign\ncorporation\xe2\x80\x99s offer to buy the U.S. company and urging Congress not to interfere\nwith the transaction. See id. at 7. The foreign government also had a financial\ninterest in the proposed transaction, because it would have partially financed the\ndeal. Id. Thus, the foreign government apparently had a common interest with the\nforeign corporation in persuading U.S. government officials not to block the deal.\nWe understand your question to be whether, in light of the foreign government\xe2\x80\x99s financial interest and activities supporting the proposed deal, the former\nofficial\xe2\x80\x99s activities on behalf of the foreign corporation in connection with its bid\nfor the U.S. company would have been considered to \xe2\x80\x9crepresent[]\xe2\x80\x9d or \xe2\x80\x9caid[] or\nadvise[]\xe2\x80\x9d the foreign government itself, which is clearly a \xe2\x80\x9cforeign entity\xe2\x80\x9d under\nsection 207(f)(3). We answer this question in the negative. For the reasons given\nbelow, we conclude that section 207(f) does not prohibit former government\nofficials from taking actions that are not undertaken on a foreign entity\xe2\x80\x99s behalf,\nregardless of whether the official\xe2\x80\x99s actions benefit the foreign entity in some way.\nSection 207(f)(1)\xe2\x80\x99s one-year post-employment restriction applies where a former government official \xe2\x80\x9crepresents a foreign entity\xe2\x80\x9d or \xe2\x80\x9caids or advises a foreign\nentity.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 207(f)(1). Two of the three actions prohibited by section\n207(f)\xe2\x80\x94representing and advising\xe2\x80\x94necessarily require a relationship between the\nformer government official and a foreign entity. As OGE has said, a former\nofficial \xe2\x80\x9c\xe2\x80\x98represents\xe2\x80\x99 a foreign entity when he acts as an agent or attorney for or\notherwise communicates or makes an appearance on behalf of that entity to or\nbefore any employee of a department or agency.\xe2\x80\x9d Summary of Post-Employment\nRestrictions at 11. Similarly, a former official \xe2\x80\x9cadvise[s] a foreign entity\xe2\x80\x9d when he\nprovides his counsel and expertise to the entity directly; he does not \xe2\x80\x9cadvise\xe2\x80\x9d an\nentity, as that word is normally used, by making unsolicited observations to the\npublic at large that prove helpful to the entity. See Webster\xe2\x80\x99s Third New International Dictionary 32 (1993) (defining \xe2\x80\x9cadvise\xe2\x80\x9d to mean \xe2\x80\x9cto give advice to,\xe2\x80\x9d and\nproviding as an example, \xe2\x80\x9camong those advising the president\xe2\x80\x9d); The Compact\nOxford English Dictionary 22 (1992) (\xe2\x80\x9cTo offer counsel, as one of a consulting\nbody; to give advice . . . . To give counsel to, to counsel, caution, warn.\xe2\x80\x9d) (giving\nseveral examples involving the direct provision of advice). Thus, with respect to\n\xe2\x80\x9crepresent[ing]\xe2\x80\x9d and \xe2\x80\x9cadvis[ing],\xe2\x80\x9d section 207(f)(1) does not bar former government officials from taking actions that incidentally benefit the foreign entity unless\nthey act on behalf of a foreign entity.\nConceivably, a person might \xe2\x80\x9caid[] . . . a foreign entity\xe2\x80\x9d by taking actions that\nbenefit the entity without providing services on its behalf. But such an expansive\ninterpretation of \xe2\x80\x9caids . . . a foreign entity\xe2\x80\x9d does not comport with the most natural\nreading of the statute. In its statutory context, \xe2\x80\x9caids\xe2\x80\x9d is a part of the phrase \xe2\x80\x9caids or\n\n120\n\n\x0cPublic Relations Activities Undertaken for a Foreign Corporation\n\nadvises\xe2\x80\x9d in section 207(f)(1)(B) and is parallel to \xe2\x80\x9crepresents\xe2\x80\x9d in section\n207(f)(1)(A). Under the interpretive canon noscitur a sociis, \xe2\x80\x9caids\xe2\x80\x9d should thus be\nread in the context of its statutory neighbors \xe2\x80\x9cto avoid ascribing to [it] a meaning\nso broad that it is inconsistent with its accompanying words, thus giving \xe2\x80\x98unintended breadth to the Acts of Congress.\xe2\x80\x99\xe2\x80\x9d Gustafson v. Alloyd Co., 513 U.S. 561,\n575 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).\nRather, as the Court has explained, where \xe2\x80\x9cseveral items in a list share an attribute,\xe2\x80\x9d the canon of noscitur a sociis \xe2\x80\x9ccounsels in favor of interpreting the other\nitems as possessing that attribute as well.\xe2\x80\x9d Beecham v. United States, 511 U.S.\n368, 371 (1994); see also James v. United States, 550 U.S. 192, 222 (2007)\n(Scalia, J., dissenting) (under the canon of noscitur a sociis, \xe2\x80\x9cwhich of various\npossible meanings a word should be given must be determined in a manner that\nmakes it \xe2\x80\x98fit\xe2\x80\x99 with the words with which it is closely associated\xe2\x80\x9d). Applying this\ninterpretive canon here, the term \xe2\x80\x9caids,\xe2\x80\x9d like the terms \xe2\x80\x9crepresents\xe2\x80\x9d and \xe2\x80\x9cadvises,\xe2\x80\x9d\nis best construed to encompass a category of services a person provides on behalf\nof a foreign entity, not any activity that incidentally benefits the foreign entity.\nThe statutory history of 18 U.S.C. \xc2\xa7 207(f) confirms our view that a former\nsenior official does not violate the restriction unless he or she provides services on\nbehalf of a foreign entity. As originally enacted in the Ethics Reform Act of 1989,\nsection 207(f)(1)(A) applied to any former senior official who \xe2\x80\x9crepresents the\ninterests of a foreign entity before any officer or employee of any department or\nagency.\xe2\x80\x9d Pub. L. No. 101-194, \xc2\xa7 101(a), 103 Stat. 1716, 1722 (1989) (emphasis\nadded). In technical amendments to the act several months later, Congress struck\n\xe2\x80\x9cinterests of,\xe2\x80\x9d clarifying that the restriction applies only to a former official who\n\xe2\x80\x9crepresents a foreign entity.\xe2\x80\x9d Pub. L. No. 101-280, \xc2\xa7 2(a)(8)(A)(i), 104 Stat. 149,\n150 (1990). Although the 1990 Act amended only section 207(f)(1)(A) (the\n\xe2\x80\x9crepresents\xe2\x80\x9d prong) and not section 207(f)(1)(B) (the \xe2\x80\x9caids or advises\xe2\x80\x9d prong)\xe2\x80\x94\nwhich did not contain the \xe2\x80\x9cinterests of\xe2\x80\x9d language in the first instance\xe2\x80\x94its deletion\nof this language confirms that Congress did not intend section 207(f)(1) generally\nto apply when a former official takes actions that benefit the interests of a foreign\nentity but does not work on behalf of the foreign entity itself. 3 See Summary of\nH.J. Res. 553, Technical Corrections to the Ethics Reform Act of 1989, 136 Cong.\nRec. 7933, 7937 (1990) (\xe2\x80\x9cThe amendment clarifies that the restrictions in section\n207(f) apply to the representation of a foreign entity and not to representation of\nother parties on an issue in which the foreign entity may be interested.\xe2\x80\x9d); OGE\nLetter at 4\xe2\x80\x935.\n3\nOur interpretation is consistent with OGE\xe2\x80\x99s guidance on the similar restriction in 18 U.S.C.\n\xc2\xa7 207(b) (2000), which prohibits certain former officials from \xe2\x80\x9caid[ing] or advis[ing] any other person\xe2\x80\x9d\non certain matters for one year following government service. OGE has advised that this restriction\nprohibits \xe2\x80\x9c[o]nly activities that are undertaken on behalf of \xe2\x80\x98any other person,\xe2\x80\x99\xe2\x80\x9d not any activity that\nprovides a benefit to any other person. Summary of Post-Employment Restrictions at 7.\n\n121\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nUnder the interpretation of \xe2\x80\x9caids or advises\xe2\x80\x9d we adopt, it is ultimately immaterial that the foreign government shared a common interest with the foreign\ncorporation in the proposed transaction or that it took action to promote that\ninterest. The relevant question under section 207(f)(1) is whether the proposed\nactivities would have been undertaken on behalf of a \xe2\x80\x9cforeign entity.\xe2\x80\x9d 4 Assuming\nthat the foreign corporation was not itself a \xe2\x80\x9cforeign entity,\xe2\x80\x9d and that the former\nCommerce official\xe2\x80\x99s proposed activities would not have been performed on behalf\nof a foreign government, those activities would not have been prohibited by\nsection 207(f)(1).\nIV.\nFinally, your office has asked whether the proposed public relations and media\nactivities of the former Commerce official would constitute \xe2\x80\x9crepresent[ing]\xe2\x80\x9d or\n\xe2\x80\x9caid[ing] or advis[ing]\xe2\x80\x9d the foreign corporation within the meaning of 18 U.S.C.\n\xc2\xa7 207(f)(1). The proposed activities include \xe2\x80\x9cwriting op-ed pieces and articles\nabout the proposed purchase of [the U.S. company] in major newspapers, magazines, and trade journals; responding to reporters\xe2\x80\x99 questions; and otherwise\ndisseminating information through the media in support of the purchase,\xe2\x80\x9d but\nwould not involve \xe2\x80\x9ccommunicating directly to Members of Congress or officials in\nthe Executive Branch or targeting . . . communications to those persons.\xe2\x80\x9d Commerce Letter at 7. Although these activities would not constitute representing or\nadvising a foreign entity under section 207(f)(1), we conclude that, if undertaken\nby a former official with \xe2\x80\x9cthe intent to influence a decision of any officer or\nemployee of any department or agency of the United States, in carrying out his or\nher official duties,\xe2\x80\x9d 5 18 U.S.C. \xc2\xa7 207(f)(1)(B), they would fall within the prohibition on \xe2\x80\x9caid[ing]\xe2\x80\x9d a foreign entity.\n\n4\nWe note that this rule may encompass a situation in which a former government official knows (or\nis willfully blind to the fact) that the foreign corporation procuring his services is acting, not in its own\ninterests, but as an agent of the foreign government that owns or controls it. In that situation, although\nthe former official nominally works for the foreign corporation, it would seem that his work would\nnevertheless be undertaken on behalf of the foreign government. See OGE Letter at 4. In such a case,\nassuming that other elements of the statutory prohibition are present, the engagement may fall within\nthe scope of section 207(f)(1). Because we do not understand the situation your office has described to\nraise this concern, we do not discuss it further.\n5\nIntent may be inferred from circumstantial evidence. See generally 1 Wayne R. LaFave, Substantive Criminal Law \xc2\xa7 5.2, at 357 (2d ed. 2003) (explaining that a defendant\xe2\x80\x99s state of mind \xe2\x80\x9cat [a]\nparticular earlier moment . . . must be gathered from his words (if any) and actions in the light of all the\nsurrounding circumstances. Naturally, what he does and what foreseeably results from his deeds have a\nbearing on what he may have had in his mind\xe2\x80\x9d). Hence, publications and articles that are addressed to\nmembers of Congress or Executive Branch officials or, more generally, that urge or discourage\ngovernment action in some way may be evidence of an intent \xe2\x80\x9cto influence a decision\xe2\x80\x9d of a government\nofficial. See 18 U.S.C. \xc2\xa7 207(f)(1)(B). Conversely, where a former official\xe2\x80\x99s assistance is unrelated to\n\n122\n\n\x0cPublic Relations Activities Undertaken for a Foreign Corporation\n\nAn official does not \xe2\x80\x9crepresent[]\xe2\x80\x9d an entity \xe2\x80\x9cbefore\xe2\x80\x9d any officer or entity of the\nUnited States government, under the ordinary meaning of that phrase, by writing\nand securing publication of op-ed pieces and articles. 18 U.S.C. \xc2\xa7 207(f)(1)(A). As\nOGE has explained, under section 207(f)(1)(A), a former employee \xe2\x80\x9c\xe2\x80\x98represents\xe2\x80\x99 a\nforeign entity when he acts as an agent or attorney for or otherwise communicates\nor makes an appearance on behalf of that entity to or before any employee of a\ndepartment or agency.\xe2\x80\x9d Summary of Post-Employment Restrictions at 11 (emphasis added). As we have explained with respect to another statutory subsection of\nsection 207, a former official does not communicate or make an appearance before\nan employee of a department or agency when that person publishes an editorial in\na newspaper that a government employee reads. See Applicability of 18 U.S.C.\n\xc2\xa7 207(c) to the Briefing and Arguing of Cases in Which the Department of Justice\nRepresents a Party, 17 Op. O.L.C. 37, 43 n.6 (1993) (distinguishing the publication of an editorial in a newspaper from filing a brief in court on the ground that\nthe former is not \xe2\x80\x9cto a specific Department attorney\xe2\x80\x9d) (emphasis added). Thus, the\nfirst prong of section 207(f)(1) does not prohibit the indirect communication that\noccurs when a government official reads an editorial or article written by a former\nofficial.\nIf undertaken with \xe2\x80\x9cthe intent to influence a decision of any officer or employee\nof any department or agency of the United States, in carrying out his or her official\nduties,\xe2\x80\x9d however, the proposed activities would fall within the second prong of\nsection 207(f)(1), in our view, because they involve \xe2\x80\x9caid[ing] . . . a foreign entity.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 207(f)(1)(B). Although, as explained above, we construe this prohibition to apply only to services performed on behalf of a foreign entity, the plain\nmeaning of \xe2\x80\x9caid[]\xe2\x80\x9d (even with this limitation) is expansive: it means \xe2\x80\x9cto give help\nor support to\xe2\x80\x9d someone. Webster\xe2\x80\x99s Third New International Dictionary 44 (1993).\nConsistent with this definition, OGE\xe2\x80\x99s guidance states that a former employee\n\xe2\x80\x9caids or advises\xe2\x80\x9d a foreign entity \xe2\x80\x9cwhen he assists the entity other than by making . . . a communication or appearance\xe2\x80\x9d on behalf of that entity to or before a\ngovernment body. Summary of Post-Employment Restrictions at 11. In other\nwords, a covered former official \xe2\x80\x9caids or advises\xe2\x80\x9d a foreign entity under section\n207(f)(1)(B) when he engages in any activity that would \xe2\x80\x9cgive help or support to\xe2\x80\x9d\na foreign entity with the \xe2\x80\x9cintent to influence a decision of\xe2\x80\x9d a U.S. government\nofficial, other than by providing the kind of assistance covered by section\n207(f)(1)(A). Assuming that the requisite statutory intent is present, see supra\nnote 5, the public relations and media activities described in the Commerce Letter\nwould have fallen within the scope of this prohibition, because those activities\nwould have plainly \xe2\x80\x9cgiven help or support to\xe2\x80\x9d the foreign corporation in its efforts\n\npotential government action, as it may be in editorials addressed to shareholders of a public company,\nhis conduct may be evidence that he lacked the requisite statutory intent.\n\n123\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nto influence the opinion of the shareholders of the U.S. target company, the public\nat large, and government officials with regard to its bid for the company.\nOGE\xe2\x80\x99s written guidance does not take a position on whether section 207(f)(1)\ncovers public relations activities, although it indicates that section 207(f)(1)(B)\ntargets \xe2\x80\x9c\xe2\x80\x98behind the scenes\xe2\x80\x99 assistance,\xe2\x80\x9d such as \xe2\x80\x9cdrafting a proposed communication to an agency, advising on an appearance before a department, or consulting on\nother strategies designed to persuade departmental or agency decisionmakers to\ntake certain action.\xe2\x80\x9d Summary of Post-Employment Restrictions at 11\xe2\x80\x9312. Were\nsection 207(f)(1)(B)\xe2\x80\x99s prohibition limited to such assistance, at least some portion\nof the public relations and media activities proposed by the former Commerce\nofficial would have fallen outside of section 207(f)(1)(B). Such a limitation\ncannot, in our judgment, be reconciled with the breadth of the statutory language.\nA former official acting with the intent to influence a decision of a U.S. government official \xe2\x80\x9caids\xe2\x80\x9d a foreign entity by undertaking the public relations and media\nactivities at issue here just as much as he \xe2\x80\x9caids\xe2\x80\x9d that foreign entity by providing\n\xe2\x80\x9cbehind the scenes\xe2\x80\x9d assistance. The statutory language provides no basis for\ndistinguishing between these two activities.\nThe other post-employment restrictions in section 207, which predate section\n207(f)(1) and expressly cover a narrower range of conduct, do not cast doubt on\nour interpretation of section 207(f)(1). When Congress added section 207(f) to the\nstatute in 1989, it did not use the language of these pre-existing restrictions but,\ninstead, used the broader phrase \xe2\x80\x9caids or advises\xe2\x80\x9d to describe the restricted\nactivities. As we have observed before, this difference in language \xe2\x80\x9csuggests\nCongress had particular concern about representation of foreign entities,\xe2\x80\x9d and\ncorrespondingly drafted section 207(f)(1)(B) to impose more expansive restrictions on such representation. Application of 18 U.S.C. \xc2\xa7 207(f) to a Former\nSenior Employee, 28 Op. O.L.C. 97, 99 (2004); see also Russello v. United States,\n464 U.S. 16, 23 (1983) (\xe2\x80\x9c\xe2\x80\x98[W]here Congress includes particular language in one\nsection of a statute but omits it in another section of the same Act, it is generally\npresumed that Congress acts intentionally and purposely in the disparate inclusion\nor exclusion.\xe2\x80\x99\xe2\x80\x9d) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th\nCir. 1972). Accordingly, the narrower scope of other post-employment bars in\nsection 207 provides no justification for reading limitations into section 207(f)(1);\nrather, section 207(f)(1) must be construed according to its plain terms, which\nencompass the sort of media-related activities described in your letter, if they are\nundertaken with the requisite statutory intent.\nLastly, we do not believe that this conclusion raises serious constitutional questions. As an initial matter, we note that section 207(f)(1) prohibits media-related\nactivities on behalf of a foreign entity only incidentally, as part of its broader\nprohibition on \xe2\x80\x9caiding or advising\xe2\x80\x9d foreign entities with the intent to influence a\ndecision of an official or employee of the United States government. That is, the\npurpose of section 207(f)(1) is not to restrict speech, but to prohibit former senior\n\n124\n\n\x0cPublic Relations Activities Undertaken for a Foreign Corporation\n\ngovernment officials from engaging in a range of conduct at the behest of foreign\nentities in their first year after leaving the government. The statute bars speech\nonly insofar as it forms part of the conduct at which the statute is aimed. Although\nthis distinction does not remove a former government official\xe2\x80\x99s speech from the\nprotection of the First Amendment, it may serve to distinguish section 207(f)(1)\nfrom prohibitions that aim to suppress speech because of its content. See Rumsfeld\nv. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 62, 67\xe2\x80\x9368 (2006)\n(stating that \xe2\x80\x9cit has never been deemed an abridgement of freedom of speech or\npress to make a course of conduct illegal merely because the conduct was in part\ninitiated, evidenced, or carried out by means of language, either spoken, written, or\nprinted\xe2\x80\x9d). 6 As the Supreme Court has explained, \xe2\x80\x9cwhen \xe2\x80\x98speech\xe2\x80\x99 and \xe2\x80\x98nonspeech\xe2\x80\x99\nelements are combined in the same course of conduct, a sufficiently important\ngovernmental interest in regulating the nonspeech element can justify incidental\nlimitations on First Amendment freedoms.\xe2\x80\x9d United States v. O\xe2\x80\x99Brien, 391 U.S.\n367, 376 (1968). As explained below, section 207(f)(1)\xe2\x80\x99s prohibition is clearly\njustified by such an interest.\nEven applying heightened constitutional scrutiny, section 207(f)(1)\xe2\x80\x99s application to the media-related activities at issue here would pass muster because the\nprohibition furthers important government interests unrelated to the suppression of\nspeech, and any incidental restriction on speech is no greater than is necessary to\nfurther those interests. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994).\nCongress\xe2\x80\x99s stated purpose in adding subsection (f)(1) to section 207 was \xe2\x80\x9cto\nrestore public confidence in the integrity of government officials.\xe2\x80\x9d Report of the\nBipartisan Task Force on Ethics on H.R. 3660, Government Ethics Reform Act of\n1989, 135 Cong. Rec. 30,740, 30,740 (1989). The post-employment restriction on\nworking for foreign entities serves this interest in two ways. First, it diminishes the\npossibility or perception that senior government officials may be influenced in the\nperformance of their duties by the prospect of future employment by foreign\nentities. Second, it reduces the chance or the perception that senior government\nofficials may benefit improperly from public service by sharing information\nlearned during their time in government with foreign entities in return for remuneration. Taken together, these interests provide a sufficient justification for\nsection 207(f)(1). As courts have recognized, the government has an \xe2\x80\x9cundeniably\npowerful\xe2\x80\x9d interest in ensuring that its employees do not \xe2\x80\x9cmisuse or appear to\nmisuse\xe2\x80\x9d the power and influence they gain through government employment,\nUnited States v. Nat\xe2\x80\x99l Treas. Emps. Union, 513 U.S. 454, 472 (1995), and in\n6\nSee also Wirzburger v. Galvin, 412 F.3d 271, 278 (1st Cir. 2005) (\xe2\x80\x9cGovernment actions that are\naimed at some goal other than restricting the conveyance of ideas are generally permissible, even if\nthey incidentally inhibit free speech.\xe2\x80\x9d); Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of N.Y.,\nInc., 968 F.2d 286, 295 (2d Cir. 1992) (\xe2\x80\x9cStates can constitutionally regulate conduct even if such\nregulation entails an incidental limitation on speech.\xe2\x80\x9d).\n\n125\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\ncertain circumstances, have held that interest to justify prophylactic limitations\nthat burden even core First Amendment rights. See Broadrick v. Oklahoma, 413\nU.S. 601 (1973) (upholding prohibition on political activity by state government\nemployees); Civil Serv. Comm\xe2\x80\x99n v. Letter Carriers, 413 U.S. 548 (1973) (upholding prohibition on political activity by federal government employees); United\nPub. Workers (C.I.O.) v. Mitchell, 330 U.S. 75, 102\xe2\x80\x9303 (1947) (same).\nFurthermore, the scope and duration of section 207(f)(1)\xe2\x80\x99s prohibition is narrowly targeted to serve the government\xe2\x80\x99s interests: It applies only to senior former\ngovernment officials, and it lasts only for one year following government service.\nEven during that period, moreover, to fall within section 207(f)(1)\xe2\x80\x99s restriction, the\nformer official must act on behalf of a \xe2\x80\x9cforeign entity\xe2\x80\x9d and speak with the intent to\ninfluence a decision of an official or employee of the United States government.\nSo long as a former official is not acting on behalf a foreign entity, section\n207(f)(1) does not preclude him from speaking publicly about actions the federal\ngovernment should take in matters of interest to foreign entities. Accordingly,\neven subjecting section 207(f)(1) to strict constitutional scrutiny, we think its\nrelatively narrow prohibition is adequately justified by the strong government\ninterest supporting it. We thus conclude that it may be applied to the media\nactivities described above consistent with the Constitution. 7\nJOHN P. ELWOOD\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n7\nWe note that section 207(f)(2) creates a \xe2\x80\x9c[s]pecial rule\xe2\x80\x9d that applies the substantive prohibitions of\nsection 207(f)(1) to a lifetime prohibition applicable to former U.S. Trade Representatives and Deputy\nU.S. Trade Representatives. 18 U.S.C. \xc2\xa7 207(f)(2). Whether the longer duration of section 207(f)(2)\xe2\x80\x99s\nprohibition on \xe2\x80\x9caiding or advising\xe2\x80\x9d a foreign entity would raise constitutional questions, or warrant a\nnarrowing construction, when applied to the media-related activities at issue here is beyond the scope\nof this opinion. Cf. Constitutionality of Statute Governing Appointment of United States Trade\nRepresentative, 20 Op. O.L.C. 279, 280 (1996) (concluding that 19 U.S.C. \xc2\xa7 2171(b)(3), which\nprovides that anyone \xe2\x80\x9cwho has directly represented, aided or advised a foreign entity . . . in any trade\nnegotiation, or trade dispute, with the United States may not be appointed as United States Trade\nRepresentative\xe2\x80\x9d is unconstitutional because, among other things, it establishes a qualification that is\n\xe2\x80\x9c\xe2\x80\x98unattainable by a sufficient number to afford [the President] ample room for choice\xe2\x80\x99\xe2\x80\x9d in nominations)\n(quoting Civil-Service Commission, 13 Op. Att\xe2\x80\x99y Gen. 516, 525 (1871)).\n\n126\n\n\x0c'


b"February 7, 1979\n\n79-12\n\nMEMORANDUM OPINION FOR THE SPECIAL\nCOUNSEL, MERIT SYSTEMS PROTECTION\nBOARD\nEmployment of Temporary or Intermittent\nAttorneys and Investigators\xe2\x80\x945 U.S.C. \xc2\xa7 3109;\n31 U.S.C. \xc2\xa7\xc2\xa7 665(b), 686(a)\xe2\x80\x94Office of the Special\nCounsel, Merit Systems Protection Board\n\nThis responds to your request for our views on whether your desire to\nemploy tem porary or interm ittent attorneys and investigators to investi\xc2\xad\ngate and assist in the processing o f your cases is consistent with relevant\nlaw 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 6\nmonths. 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 interm ittent experts and consultants may be retained by\nagencies when authorized by an appropriation or other statute. 5 U.S.C.\n\xc2\xa7 3109. Although your appropriation act authorizes you to employ experts\nand consultants, 93 Stat. 572, in our view, this appropriation may not be\nused to hire employees to perform the same functions as are performed by\nregular employees in your Office. Subchapter 1-2 o f the Federal Personnel\nManual, C hapter 304, provides a definition o f consultant and expert. A\nconsultant who is excepted from the competitive service is \xe2\x80\x9c a person who\n\n1 We have been told that you are no longer interested in employing such persons to train\nyour perm anent staff or to assist in the development o f a computer-based information\nretrieval system.\n\n78\n\n\x0cserves as an advisor to an officer or instrumentality o f the Governm ent, as\ndistinguished from an officer or employee who carries out the agency\xe2\x80\x99s\nduties and responsibilities.\xe2\x80\x9d A consultant position is defined as \xe2\x80\x9c a posi\xc2\xad\ntion requiring the performance o f purely advisory or consultant services,\nnot including performance o f operating functions.\xe2\x80\x9d The definition o f ex\xc2\xad\npert is somewhat broader but, in our view, does not provide a basis for the\nplan you contemplate. The Federal Personnel Manual describes an expert\nas \xe2\x80\x9c a person with excellent qualifications and a high degree o f attainm ent\nin a professional * * * field. His knowledge and mastery o f the prin\xc2\xad\nciples, practices, problems, methods, and techniques o f his field o f activ\xc2\xad\nity, or o f a specialized area in a field, are clearly superior to those usually\npossessed by ordinarily com petent persons in that activity.\xe2\x80\x9d An expert\nposition is one that \xe2\x80\x9c for satisfactory performance, requires the services of\nan expert in the particular field * * * and with duties that cannot be per\xc2\xad\nformed satisfactorily by someone not an expert in that field.\xe2\x80\x9d Thus,\nalthough your appropriation for tem porary experts could most likely be\nused to hire particularly qualified attorneys or investigators to work on\nunusually difficult m atters, we do not understand this to be your current\nplan. Nor do we believe that short-term employees hired to perform work\nexactly like that o f your regular staff can properly be considered experts.\nII.\nSince we believe that the temporary agency and private sector employees\nyou want to appoint cannot be considered experts or consultants under the\nplan you contem plate, the question arises whether there is any other\nstatutory authorization for hiring them outside the competitive service.\nEmployees from O ther Federal Agencies\nSection 686(a) o f 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 departm ent or independent establishment o f the\nGovernment, or any bureau or office thereof, if funds are avail\xc2\xad\nable therefor and if it is determined by the head o f such executive\ndepartm ent, establishment, bureau, or office to be in the interest\no f the Government so to do, may place orders with any other\nsuch departm ent, establishm ent, bureau, or office for\n* * * services, o f any kind that such requisitioned Federal\nagency may be in a position to supply or equipped to render, and\nshall pay promptly by check to such Federal agency as may be re\xc2\xad\nquisitioned * * * all or part o f the estimated or actual cost\nthereof * * *.\nWe read \xc2\xa7 686(a) as allowing you to request the services o f attorneys and\ninvestigators employed in another Federal Government entity that has\nauthority to conduct activities similar to those the employees will be\n79\n\n\x0cpursuing for you. In our view, two prerequisites to your use o f funds to\nreimburse the transferor agency are that the funds were appropriated for\nthe type o f work you will have the detailed attorneys and investigators per\xc2\xad\nform for you,2 and that you provide an adequate rationale why the respon\xc2\xad\nsibilities cannot be satisfactorily perform ed by your own staff or by using\nthe funds to increase your agency\xe2\x80\x99s staff. This second requirement would be\nmet if you can make a showing that Governm ent efficiency is best served by\nbringing into your Agency on a tem porary basis employees who have gained\nexperience in the kind o f work to be perform ed while working for other\nagencies rather than hiring your own new employees and having to train\nthem for a job that will last at most six m onths.\nEmployees from the Private Sector\nYou also propose to accept the gratuitous services o f attorneys and in\xc2\xad\nvestigators from the private sector. \xe2\x80\x99 The acceptance o f voluntary services is\nprohibited by 31 U .S.C . \xc2\xa7 665(b), which states that:\nNo officer or employee o f the United States shall accept voluntary\nservice for the United States or employ personal service in excess\no f that authorized by law * * *.\nThis has been interpreted by the A ttorney General to prohibit a contract for\nservices for which no payment is required, but that the prohibition on ac\xc2\xad\nceptance o f voluntary services was not intended to cover services rendered\ngratuitously in an official capacity under a regular appointm ent 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 o f Federal Personnel Manual, Chapter\n311.\nSubchapter 1-4 o f C hapter 311 defines gratuitous service as that offered\nand accepted without pay under an appointm ent for duties the pay for\nwhich has not been established by law. If Congress has fixed a minimum\nsalary for a position, an individual cannot waive that salary. Glavey v.\nUnited States, 182 U.S. 595 (1901). Cf., MacMath v. United States, 248\nU.S. 151 (1918). You are in a better position than we to determine as a fac\xc2\xad\ntual m atter whether the attorneys and investigators you hope to hire from\nthe private sector will be filling jobs for which a minimum salary has been\nfixed by law. Even if such a minimum salary is set, this element o f the defini\xc2\xad\ntion o f gratuitous service could be interpreted to mean that if the Govern\xc2\xad\nment is to pay anything more than a nominal sum, the minimum salary\nestablished by law must be paid, but that \xe2\x80\x9c a position for which no\nminimum salary is set by law\xe2\x80\x9d includes all those positions for which no\n\n1 Money 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 . \xc2\xa7 628, but these funds are available to pay either employees\no f your own or those detailed from another agency.\n\xe2\x80\x99 We leave aside for the m oment the question o f whether you can pay each private sector\nemployee a nom inal sum, not to exceed $100, for all services rendered by the participant during\nthe 6 m onths o f the program .\n\n80\n\n\x0csalary or a nominal salary is paid. Section 5102(c)(13) o f title 5, United\nStates Code, states that C hapter 51 o f title 5 providing for the classifica\xc2\xad\ntion o f pay and allowances does not apply to employees who serve without\npay or at nominal rates o f pay.\nWe conclude, therefore, that you can appoint attorneys and investiga\xc2\xad\ntors from the private sector and that you can pay a nominal sum such as\nyou propose to those providing the gratuitous service. We do not think as\nstated above, that your appropriation for hiring tem porary consultants or\nexperts can be used to provide these funds and thus you will have to be\nable to justify the appointm ent and expenditure under 5 U.S.C. 1206(j),\nauthorizing you to appoint the legal, administrative and support personnel\nnecessary to perform the functions o f your office, and as an expense\nnecessary thereto under your recent appropriation act.\nIII.\nFinally, we consider whether the plan you propose is consistent with\nrelevant conflict o f interest laws. This advice is necessarily general and\ndoes not preclude the need for careful consideration o f particular factual\ncircumstances.\nThe employees whose services you obtain from other Federal agencies\nwill continue to be subject to the conflict o f 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 re\xc2\xad\nquirements 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 m ade sub\xc2\xad\nject to the less stringent conflict o f interest requirements for special Govern\xc2\xad\nment employees if you decide in advance to appoint them to serve less than\n130 days in any 365-day period. 18 U.S.C. 202(a) defines \xe2\x80\x9c special govern\xc2\xad\nment employee\xe2\x80\x9d as \xe2\x80\x9c an officer or employee o f the executive or legislative\nbranch o f the United States Government, o f any independent agency o f the\nUnited States * * * who is retained, designated, appointed, or employed\nto perform, with or without com pensation, for not to exceed one hundred\nand thirty days during any period o f three hundred and sixty-five con\xc2\xad\nsecutive days, tem porary duties either on a full-time or interm ittent\nbasis * * V \xe2\x80\x99 In estimating in advance o f appointm ent the num ber o f days\nan employee may serve, a departm ent must in good faith find that the\nspecial Government employee will serve no more than 130 days; a part o f a\nday must be counted as a full day, and a Saturday, Sunday, or holiday on\nwhich duties are to be performed must be counted equally with a regular\nwork day. Federal Personnel Manual, Ch. 735, Appendix C. If an employee\ndoes, however, serve for more than the 130 days, he or she will nevertheless\ncontinue to be regarded as a special Government employee so long as the\noriginal estimate was made in good faith. Id. Once an employee is ap \xc2\xad\npointed as a special Government employee, the restrictions imposed by the\n81\n\n\x0cconflict o f interest laws apply even on days the employee does not\nserve the Governm ent. Id.\nCompensation\nSections 203 and 209 o f title 18 limit compensation employees may\nreceive in addition to their Governm ent salary. The restrictions o f 18\nU.S.C. 209 on the receipt o f ' \xe2\x80\x98salary, or any contribution to or supplemen\xc2\xad\ntation o f salary\xe2\x80\x9d as com pensation for services as an employee o f the\nUnited States from any source other than the Government o f the United\nStates is expressly not applicable to'special Government employees. 18\nU .S.C . 209(c). The restrictions found in 18 U.S.C. 203(a) on receipt of\noutside compensation when one is serving as an officer or employee o f the\nUnited States in relation to any m atter in which the United States is a party\nor has a direct and substantial interest before any departm ent, agency, or\ncivil commission, applies to special Governm ent employees only in rela\xc2\xad\ntion to a particular m atter involving a specific party or parties in which the\nemployee has at any time participated personally and substantially as a\nGovernment employee or as a special Government employee through deci\xc2\xad\nsion, approval, disapproval, recom m endation, the rendering o f advice, in\xc2\xad\nvestigation or otherwise, or which is pending in the departm ent or agency\no f the Government in which he or she is serving.4 Furtherm ore, \xc2\xa7 203 ap\xc2\xad\nplies to matters pending in the departm ent only when a special Govern\xc2\xad\nment employee has served in the departm ent for at least 61 days during the\nimmediately preceding 365 days. 18 U .S.C . 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 o f \xc2\xa7 203. But even if the private\nemployees were hired for more than 130 days and thus could not qualify as\nspecial Government employees, if they serve without compensation, they\nnevertheless will not be subject to \xc2\xa7 209. 18 U .S.C . 209(c).\nIf the employees from the private sector are regular employees and are\npaid by the Governm ent, \xc2\xa7 209 requires that their private sector com pen\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\nfurther reviewed, if necessary, to ensure that they do not share fees for\nrepresentational services performed by another as outlined above.5\n\n4 Section 203 applies as well to receipt o f com pensation by an employee for services\nrendered by another, such as a law partner.\n' The restrictions o f \xc2\xa7 209 do not prohibit continued participation by employees in bona\nfid e pension, retirem ent, group life, health o r accident insurance, profit-sharing, stock\nbonus, or other employee welfare or benefit plans m aintained by a private employer. 18\nU.S.C. 209(b).\n\n82\n\n\x0cRepresentation Restrictions\n\nRegular Government employees must refrain from acting as agents or\nattorneys for anyone before any departm ent, agency, court, court-martial,\nor officer, or any civil, military, or naval commission in connection with\nany particular m atter in which the United States is a party or has a direct\nand substantial interest. 18 U.S.C. \xc2\xa7 205. This section restricts special\nGovernment employees in more limited fashion; such an employee may\nnot act as attorney or agent in relation to any particular m atter involving a\nspecific party or parties in which that employee has at any time par\xc2\xad\nticipated in the course o f-h is - of her Government service, or, if the\nemployee has served at least 61 days, any m atter which is pending in the\ndepartment in which he or she is serving. A special Government employee\nis not otherwise barred from acting as an attorney in court proceedings or\nin proceedings before other agencies.\nSection 208 o f 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, 18 U.S.C. \xc2\xa7 208(b), and as with the ap\xc2\xad\nplicability o f all o f the conflict o f interest sections discussed in this\nm emorandum, a careful examination o f the particular facts would have to\nbe made in each individual case.\nPostemployment Restrictions\nSection 207 o f title 18 was amended by the Ethics in Governm ent Act of\n1978 to require that regular employees and special Government employees\nbe permanently barred from acting as attorney or agent or otherwise\nrepresenting any person other than the United States in making any\ncommunication, with intent to influence, or in making any informal or\nformal appearance before any departm ent, agency, commission, or court\nin relation to any particular m atter in which the United States or the\nDistrict o f Columbia is a party or has a direct and substantial interest and\nin which the employee participated personally and substantially.6 The\nemployee will also be prohibited for 2 years from acting as agent or at\xc2\xad\ntorney in similar circumstances with regard to matters under his or her of\xc2\xad\nficial responsibility, but in all likelihood the realm o f official responsibility\n\n1 We assume that the employees you are considering hiring will not be am ong those desig\xc2\xad\nnated for more stringent coverage under \xc2\xa7 207(d).\n\n83\n\n\x0co f the employees you would have would be no broader than the matters in\nwhich they participated personally and substantially.\nL e o n U lm a n\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n84\n\n\x0c"