Ethics and Professional Responsibility in a Presidential Transition List of Supporting Materials Statutes 18 U.S.C. § 207: Restrictions on former officers, employees, and elected officials of the executive and legislative branches. 18 U.S.C. § 208: Acts affecting a personal financial interest OGE Compilation of Federal Ethics Laws (2015) Presidential Documents Executive Order 13490, Ethics Commitments by Executive Branch Personnel Office of Government Ethics (https://www.oge.gov/) Plain Language Advisory on Post‐Government Employment Restrictions (LA‐16‐08) Advisory on Revised Subpart F of the Standards of Conduct, Seeking Other Employment (LA‐16‐06) Department of Justice Post‐Employment Restrictions Chart (January 2010) ABA Government and Public Sector Lawyers Division "Avoiding the Revolving Door: Ethical Issues for Government Lawyers Transitioning to the Private Sector." Pass It On, Vol. 19, No. 4, Summer 2010 White House Transition Project (http://whitehousetransitionproject.org/) The White House Counsel (2017) The White House Counsel’s Office (2009) COMPILATION OF
FEDERAL ETHICS LAWS
PREPARED BY THE
UNITED STATES OFFICE OF GOVERNMENT ETHICS
This compilation of Federal ethics laws has been prepared by the Office of Government Ethics
(OGE) for the ethics community. In preparing this book, we have included not only the laws
within the jurisdiction of the ethics program, but also other related statutes on which ethics
officials are often called upon to provide advice to agency employees. OGE hopes that this book
will be a useful tool to ethics officials in carrying out their important work of helping Federal
employees to fulfill the public trust placed in them when they enter public service.
This compilation includes all provisions signed into law through the end of the 113th Congress.
TABLE OF CONTENTS
I. CONFLICTS OF INTEREST .....................................................................................................1
18 U.S.C. § 201. Bribery of public officials and witnesses ................................................1
18 U.S.C. § 202. Definitions ...............................................................................................3
18 U.S.C. § 203. Compensation to Members of Congress, officers, and others in
matters affecting the Government ..................................................................................4
18 U.S.C. § 204. Practice in United States Court of Federal Claims or the United
States Court of Appeals for the Federal Circuit by Members of Congress ...................5
18 U.S.C. § 205. Activities of officers and employees in claims against and other
matters affecting the Government ..................................................................................6
18 U.S.C. § 206. Exemption of retired officers of the uniformed services ........................7
18 U.S.C. § 207. Restrictions on former officers, employees, and elected officials of
the executive and legislative branches ...........................................................................8
18 U.S.C. § 208. Acts affecting a personal financial interest ...........................................19
18 U.S.C. § 209. Salary of Government officials and employees payable only by
United States ................................................................................................................21
18 U.S.C. § 210. Offer to procure appointive public office..............................................23
18 U.S.C. § 211. Acceptance or solicitation to obtain appointive public office ...............23
18 U.S.C. § 216. Penalties and injunctions .......................................................................23
18 U.S.C. § 218. Voiding transactions in violation of chapter; recovery by the United
States ...........................................................................................................................23
18 U.S.C. § 219. Officers and employees acting as agents of foreign principals .............24
II. ETHICS IN GOVERNMENT ACT OF 1978..........................................................................24
A. Public Financial Disclosure Requirements ........................................................................24
5 U.S.C. app. § 101. Persons required to file ....................................................................24
5 U.S.C. app. § 102. Contents of reports ..........................................................................27
5 U.S.C. app. § 103. Filing of reports ...............................................................................37
5 U.S.C. app. § 104. Failure to file or filing false reports.................................................40
5 U.S.C. app. § 105. Custody of and public access to reports ..........................................42
Pub. L. 112-105 §§ 8(a)-(b) (STOCK Act). Public filing and disclosure of financial
disclosure forms of Members of Congress and congressional staff. ...........................45
Pub. L. 112-105 § 11 (STOCK Act). Executive branch reporting ....................................46
5 U.S.C. app. § 106. Review of reports ............................................................................47
5 U.S.C. app. § 107. Confidential reports and other additional requirements ..................48
5 U.S.C. app. § 108. Authority of Comptroller General ...................................................49
5 U.S.C. app. § 109. Definitions .......................................................................................49
5 U.S.C. app. § 110. Notice of actions taken to comply with ethics agreements .............53
5 U.S.C. app. § 111. Administration of provisions ...........................................................54
B. Office of Government Ethics .............................................................................................54
5 U.S.C. app. § 401. Establishment; appointment of Director..........................................54
5 U.S.C. app. § 402. Authority and functions ...................................................................54
5 U.S.C. app. § 403. Administrative provisions ...............................................................59
5 U.S.C. app. § 404. Rules and regulations ......................................................................59
5 U.S.C. app. § 405. Authorization of appropriations ......................................................59
5 U.S.C. app. § 408. Reports to Congress.........................................................................60
C. Outside Earned Income and Activities ...............................................................................60
5 U.S.C. app. § 501. Outside earned income limitation....................................................60
5 U.S.C. app. § 502. Limitations on outside employment ................................................61
5 U.S.C. app. § 503. Administration .................................................................................61
5 U.S.C. app. § 504. Civil Penalties..................................................................................62
5 U.S.C. app. § 505. Definitions .......................................................................................62
D. Use of Nonpublic Information for Private Profit ...............................................................63
Pub. L. 112-105 § 3 (STOCK Act). Prohibition of the use of nonpublic information
for private profit ...........................................................................................................63
Pub. L. 112-105 § 9(a) (STOCK Act). Other Federal officials .........................................63
E. Post-Employment Negotiation Restrictions .......................................................................63
Pub. L. 112-105 § 17 (STOCK Act). Post-employment negotiation restrictions ..............63
E. General Provisions (STOCK Act) ......................................................................................64
Pub. L. 112-105 § 2 (STOCK Act). Definitions ................................................................64
Pub. L. 112-105 § 10 (STOCK Act). Rule of construction ...............................................64
III. PROCUREMENT AND CONTRACTING ...........................................................................65
A. Restrictions on Obtaining and Disclosing Certain Information .........................................65
41 U.S.C. § 2101. Definitions ............................................................................................65
41 U.S.C. § 2102. Prohibitions on disclosing and obtaining procurement information ....66
41 U.S.C. § 2103. Actions required of procurement officers when contacted regarding
non-Federal employment .............................................................................................67
41 U.S.C. § 2104. Prohibition on former official’s acceptance of compensation from
contractor .....................................................................................................................67
41 U.S.C. § 2105. Penalties and administrative actions ....................................................68
41 U.S.C. § 2106. Reporting information believed to constitute evidence of offense ......69
41 U.S.C. § 2107. Savings provisions ...............................................................................69
B. Interest of Members of Congress .......................................................................................70
41 U.S.C. § 6306. Prohibition on Members of Congress making contracts with Federal
Government..................................................................................................................70
C. Contracts by or with Members of Congress .......................................................................70
18 U.S.C. § 431. Contracts by Member of Congress ........................................................70
18 U.S.C. § 432. Officer or employee contracting with Member of Congress ................71
18 U.S.C. § 433. Exemptions with respect to certain contracts ........................................71
IV. GIFTS AND TRAVEL ............................................................................................................71
A. Gifts to Federal employees ................................................................................................71
B.
C.
D.
E.
F.
5 U.S.C. § 7353. Gifts to Federal employees....................................................................71
5 U.S.C. § 7353 note. Limitation on the Acceptance of Honorary Club Memberships ....72
Gifts to Superiors ...............................................................................................................73
5 U.S.C. § 7351. Gifts to superiors ...................................................................................73
Foreign Gifts and Decorations Act.....................................................................................73
5 U.S.C. § 7342. Receipt and disposition of foreign gifts and decorations ......................73
Mutual Educational and Cultural Exchange Act................................................................77
22 U.S.C. § 2458a. Federal employee participation in cultural exchange programs ........77
Acceptance of Travel and Related Expenses from Non-Federal Sources ..........................78
31 U.S.C. § 1353. Acceptance of travel and related expenses from non-Federal
sources..........................................................................................................................78
Acceptance of Contributions, Awards, and Other Payments .............................................79
5 U.S.C. § 4111. Acceptance of contributions, awards, and other payments ...................79
V. EMPLOYMENT ......................................................................................................................79
A. Nepotism ............................................................................................................................79
5 U.S.C. § 3110. Employment of relatives; restrictions ...................................................79
B. Recommendations for Employment by Members of Congress .........................................80
5 U.S.C. § 3303. Competitive service; recommendations of Senators or
Representatives .........................................................................................................80
C. Dual Pay and Division of Salary or Duties ........................................................................80
5 U.S.C. § 5533. Dual pay from more than one position; limitations; exceptions ...........80
VI. GOVERNMENT PROPERTY AND INFORMATION ........................................................82
A. Government Property .........................................................................................................82
18 U.S.C. § 641. Public money, property or records ........................................................82
18 U.S.C. § 1719. Franking privilege ...............................................................................82
18 U.S.C. § 1913. Lobbying with appropriated moneys ..................................................82
31 U.S.C. § 1344. Passenger carrier use ...........................................................................83
B. Information .........................................................................................................................86
18 U.S.C. § 798. Disclosure of classified information .....................................................86
18 U.S.C. § 1905. Disclosure of confidential information generally ...............................88
50 U.S.C. § 783(a). Offenses; Communication of classified information by
Government officer or employee .................................................................................88
VII. TAXES IN CERTAIN MATTERS .......................................................................................89
A. Self-Dealings With Foundations ........................................................................................89
26 U.S.C. § 4941. Taxes on self-dealing ..........................................................................89
26 U.S.C. § 4946. Definitions and special rules ...............................................................92
B. Sale of Property to Comply With Conflict-of-Interest Requirements................................94
26 U.S.C. § 1043. Sale of property to comply with conflict-of-interest requirements .....94
C. Treatment of Sale of Stock Acquired Pursuant to Exercise of Stock Options to
Comply With Conflict-of-Interest Requirements ..............................................................95
26 U.S.C. § 421. General Rules ........................................................................................95
VIII. POLITICAL ACTIVITIES ..................................................................................................96
A. Administrative (Hatch Act) ................................................................................................96
5 U.S.C. § 7321. Political participation ............................................................................96
5 U.S.C. § 7322. Definitions .............................................................................................96
5 U.S.C. § 7323. Political activity authorized; prohibitions .............................................96
5 U.S.C. § 7324. Political activities on duty; prohibition .................................................98
5 U.S.C. § 7325. Political activity permitted; employees residing in certain
municipalities ...............................................................................................................99
5 U.S.C. § 7326. Penalties ................................................................................................99
B. Criminal ..............................................................................................................................99
18 U.S.C. § 601. Deprivation of employment or other benefit for political
contribution ..................................................................................................................99
18 U.S.C. § 602. Solicitation of political contributions ..................................................100
18 U.S.C. § 603. Making political contributions ............................................................100
18 U.S.C. § 604. Solicitation from persons on relief ......................................................101
18 U.S.C. § 605. Disclosure of names of persons on relief ............................................101
18 U.S.C. § 606. Intimidation to secure political contributions .....................................101
18 U.S.C. § 607. Place of solicitation .............................................................................101
18 U.S.C. § 608. Absent uniformed services voters and overseas voters .......................102
18 U.S.C. § 609. Use of military authority to influence vote of member of Armed
Forces .........................................................................................................................102
18 U.S.C. § 610. Coercion of political activity...............................................................102
IX. MISCELLANEOUS STATUTES ........................................................................................103
5 U.S.C. § 557(d). Ex parte communication ...................................................................103
18 U.S.C. § 2. Principals .................................................................................................103
18 U.S.C. § 1001. Statements or entries generally .........................................................104
I. CONFLICTS OF INTEREST
18 U.S.C. § 201. Bribery of public officials and witnesses
(a) For the purpose of this section—
(1) the term ''public official'' means Member of Congress, Delegate, or Resident
Commissioner, either before or after such official has qualified, or an officer or employee
or person acting for or on behalf of the United States, or any department, agency or
branch of Government thereof, including the District of Columbia, in any official
function, under or by authority of any such department, agency, or branch of
Government, or a juror;
(2) the term ''person who has been selected to be a public official'' means any person
who has been nominated or appointed to be a public official, or has been officially
informed that such person will be so nominated or appointed; and
(3) the term ''official act'' means any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any time be pending, or which may by law
be brought before any public official, in such official's official capacity, or in such
official's place of trust or profit.
(b) Whoever—
(1) directly or indirectly, corruptly gives, offers or promises anything of value to any
public official or person who has been selected to be a public official, or offers or
promises any public official or any person who has been selected to be a public official to
give anything of value to any other person or entity, with intent—
(A) to influence any official act; or
(B) to influence such public official or person who has been selected to be a
public official to commit or aid in committing, or collude in, or allow, any fraud, or
make opportunity for the commission of any fraud, on the United States; or
(C) to induce such public official or such person who has been selected to be a
public official to do or omit to do any act in violation of the lawful duty of such
official or person;
(2) being a public official or person selected to be a public official, directly or
indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept
anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow,
any fraud, or make opportunity for the commission of any fraud, on the United States;
or
(C) being induced to do or omit to do any act in violation of the official duty of
such official or person;
(3) directly or indirectly, corruptly gives, offers, or promises anything of value to any
person, or offers or promises such person to give anything of value to any other person or
entity, with intent to influence the testimony under oath or affirmation of such firstmentioned person as a witness upon a trial, hearing, or other proceeding, before any
court, any committee of either House or both Houses of Congress, or any agency,
2
commission, or officer authorized by the laws of the United States to hear evidence or
take testimony, or with intent to influence such person to absent himself therefrom;
(4) directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to
receive or accept anything of value personally or for any other person or entity in return
for being influenced in testimony under oath or affirmation as a witness upon any such
trial, hearing, or other proceeding, or in return for absenting himself therefrom;
shall be fined under this title or not more than three times the monetary equivalent of the
thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both,
and may be disqualified from holding any office of honor, trust, or profit under the United
States.
(c) Whoever—
(1) otherwise than as provided by law for the proper discharge of official duty—
(A) directly or indirectly gives, offers, or promises anything of value to any public
official, former public official, or person selected to be a public official, for or
because of any official act performed or to be performed by such public official,
former public official, or person selected to be a public official; or
(B) being a public official, former public official, or person selected to be a public
official, otherwise than as provided by law for the proper discharge of official duty,
directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept
anything of value personally for or because of any official act performed or to be
performed by such official or person;
(2) directly or indirectly, gives, offers, or promises anything of value to any person,
for or because of the testimony under oath or affirmation given or to be given by such
person as a witness upon a trial, hearing, or other proceeding, before any court, any
committee of either House or both Houses of Congress, or any agency, commission, or
officer authorized by the laws of the United States to hear evidence or take testimony, or
for or because of such person's absence therefrom;
(3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or
accept anything of value personally for or because of the testimony under oath or
affirmation given or to be given by such person as a witness upon any such trial, hearing,
or other proceeding, or for or because of such person's absence therefrom;
shall be fined under this title or imprisoned for not more than two years, or both.
(d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c)
shall not be construed to prohibit the payment or receipt of witness fees provided by law, or
the payment, by the party upon whose behalf a witness is called and receipt by a witness, of
the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in
attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a
reasonable fee for time spent in the preparation of such opinion, and in appearing and
testifying.
(e) The offenses and penalties prescribed in this section are separate from and in addition
to those prescribed in sections 1503, 1504, and 1505 of this title.
3
18 U.S.C. § 202. Definitions
(a) For the purpose of sections 203, 205, 207, 208, and 209 of this title the term ''special
Government employee'' shall mean an officer or employee of the executive or legislative
branch of the United States Government, of any independent agency of the United States or
of the District of Columbia, who is retained, designated, appointed, or employed to perform,
with or without compensation, for not to exceed one hundred and thirty days during any
period of three hundred and sixty-five consecutive days, temporary duties either on a fulltime or intermittent basis, a part-time United States commissioner, a part-time United States
magistrate judge, or, regardless of the number of days of appointment, an independent
counsel appointed under chapter 40 of title 28 and any person appointed by that independent
counsel under section 594(c) of title 28. Notwithstanding the next preceding sentence, every
person serving as a part-time local representative of a Member of Congress in the Member's
home district or State shall be classified as a special Government employee.
Notwithstanding section 29(c) and (d) of the Act of August 10, 1956 (70A Stat. 632; 5
U.S.C. 30r(c) and (d)), a Reserve officer of the Armed Forces, or an officer of the National
Guard of the United States, unless otherwise an officer or employee of the United States,
shall be classified as a special Government employee while on active duty solely for training.
A Reserve officer of the Armed Forces or an officer of the National Guard of the United
States who is voluntarily serving a period of extended active duty in excess of one hundred
and thirty days shall be classified as an officer of the United States within the meaning of
section 203 and sections 205 through 209 and 218. A Reserve officer of the Armed Forces or
an officer of the National Guard of the United States who is serving involuntarily shall be
classified as a special Government employee. The terms ''officer or employee'' and ''special
Government employee'' as used in sections 203, 205, 207 through 209, and 218, shall not
include enlisted members of the Armed Forces.
(b) For the purposes of sections 205 and 207 of this title, the term ''official responsibility''
means the direct administrative or operating authority, whether intermediate or final, and
either exercisable alone or with others, and either personally or through subordinates, to
approve, disapprove, or otherwise direct Government action.
(c) Except as otherwise provided in such sections, the terms ''officer'' and ''employee'' in
sections 203, 205, 207 through 209, and 218 of this title shall not include the President, the
Vice President, a Member of Congress, or a Federal judge.
(d) The term ''Member of Congress'' in sections 204 and 207 means—
(1) a United States Senator; and
(2) a Representative in, or a Delegate or Resident Commissioner to, the House of
Representatives.
(e) As used in this chapter, the term—
(1) ''executive branch'' includes each executive agency as defined in title 5, and any
other entity or administrative unit in the executive branch;
(2) ''judicial branch'' means the Supreme Court of the United States; the United States
courts of appeals; the United States district courts; the Court of International Trade; the
United States bankruptcy courts; any court created pursuant to article I of the United
States Constitution, including the Court of Appeals for the Armed Forces, the United
4
States Court of Federal Claims, and the United States Tax Court, but not including a
court of a territory or possession of the United States; the Federal Judicial Center; and
any other agency, office, or entity in the judicial branch; and
(3) ''legislative branch'' means—
(A) the Congress; and
(B) the Office of the Architect of the Capitol, the United States Botanic Garden,
the Government Accountability Office, the Government Printing Office, 1 the Library
of Congress, the Office of Technology Assessment, the Congressional Budget Office,
the United States Capitol Police, and any other agency, entity, office, or commission
established in the legislative branch.
18 U.S.C. § 203. Compensation to Members of Congress, officers, and others in matters
affecting the Government
(a) Whoever, otherwise than as provided by law for the proper discharge of official
duties, directly or indirectly—
(1) demands, seeks, receives, accepts, or agrees to receive or accept any
compensation for any representational services, as agent or attorney or otherwise,
rendered or to be rendered either personally or by another—
(A) at a time when such person is a Member of Congress, Member of Congress
Elect, Delegate, Delegate Elect, Resident Commissioner, or Resident Commissioner
Elect; or
(B) at a time when such person is an officer or employee or Federal judge of the
United States in the executive, legislative, or judicial branch of the Government, or in
any agency of the United States,
in relation to any proceeding, application, request for a ruling or other determination,
contract, claim, controversy, charge, accusation, arrest, or other particular matter in
which the United States is a party or has a direct and substantial interest, before any
department, agency, court, court-martial, officer, or any civil, military, or naval
commission; or
(2) knowingly gives, promises, or offers any compensation for any such
representational services rendered or to be rendered at a time when the person to whom
the compensation is given, promised, or offered, is or was such a Member, Member
Elect, Delegate, Delegate Elect, Commissioner, Commissioner Elect, Federal judge,
officer, or employee;
shall be subject to the penalties set forth in section 216 of this title.
(b) Whoever, otherwise than as provided by law for the proper discharge of official
duties, directly or indirectly—
(1) demands, seeks, receives, accepts, or agrees to receive or accept any
compensation for any representational services, as agent or attorney or otherwise,
rendered or to be rendered either personally or by another, at a time when such person is
1
The Government Printing Office has been redesignated the Government Publishing Office. Consolidated and Further Continuing Appropriations
Act, 2015, Pub. L. 113-235 § 1301, 128 Stat. 2130 (2014).
5
an officer or employee of the District of Columbia, in relation to any proceeding,
application, request for a ruling or other determination, contract, claim, controversy,
charge, accusation, arrest, or other particular matter in which the District of Columbia is a
party or has a direct and substantial interest, before any department, agency, court,
officer, or commission; or
(2) knowingly gives, promises, or offers any compensation for any such
representational services rendered or to be rendered at a time when the person to whom
the compensation is given, promised, or offered, is or was an officer or employee of the
District of Columbia;
shall be subject to the penalties set forth in section 216 of this title.
(c) A special Government employee shall be subject to subsections (a) and (b) only in
relation to a particular matter involving a specific party or parties—
(1) in which such employee has at any time participated personally and substantially
as a Government employee or as a special Government employee through decision,
approval, disapproval, recommendation, the rendering of advice, investigation or
otherwise; or
(2) which is pending in the department or agency of the Government in which such
employee is serving except that paragraph (2) of this subsection shall not apply in the
case of a special Government employee who has served in such department or agency no
more than sixty days during the immediately preceding period of three hundred and sixtyfive consecutive days.
(d) Nothing in this section prevents an officer or employee, including a special
Government employee, from acting, with or without compensation, as agent or attorney for
or otherwise representing his parents, spouse, child, or any person for whom, or for any
estate for which, he is serving as guardian, executor, administrator, trustee, or other personal
fiduciary except—
(1) in those matters in which he has participated personally and substantially as a
Government employee or as a special Government employee through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or otherwise; or
(2) in those matters that are the subject of his official responsibility,
subject to approval by the Government official responsible for appointment to his position.
(e) Nothing in this section prevents a special Government employee from acting as agent
or attorney for another person in the performance of work under a grant by, or a contract with
or for the benefit of, the United States if the head of the department or agency concerned with
the grant or contract certifies in writing that the national interest so requires and publishes
such certification in the Federal Register.
(f) Nothing in this section prevents an individual from giving testimony under oath or
from making statements required to be made under penalty of perjury.
6
18 U.S.C. § 204. Practice in United States Court of Federal Claims or the United States
Court of Appeals for the Federal Circuit by Members of Congress
Whoever, being a Member of Congress or Member of Congress Elect, practices in the
United States Court of Federal Claims or the United States Court of Appeals for the Federal
Circuit shall be subject to the penalties set forth in section 216 of this title.
18 U.S.C. § 205. Activities of officers and employees in claims against and other
matters affecting the Government
(a) Whoever, being an officer or employee of the United States in the executive,
legislative, or judicial branch of the Government or in any agency of the United States, other
than in the proper discharge of his official duties—
(1) acts as agent or attorney for prosecuting any claim against the United States, or
receives any gratuity, or any share of or interest in any such claim, in consideration of
assistance in the prosecution of such claim; or
(2) acts as agent or attorney for anyone before any department, agency, court, courtmartial, officer, or civil, military, or naval commission in connection with any covered
matter in which the United States is a party or has a direct and substantial interest;
shall be subject to the penalties set forth in section 216 of this title.
(b) Whoever, being an officer or employee of the District of Columbia or an officer or
employee of the Office of the United States Attorney for the District of Columbia, otherwise
than in the proper discharge of official duties—
(1) acts as agent or attorney for prosecuting any claim against the District of
Columbia, or receives any gratuity, or any share of or interest in any such claim in
consideration of assistance in the prosecution of such claim; or
(2) acts as agent or attorney for anyone before any department, agency, court, officer,
or commission in connection with any covered matter in which the District of Columbia
is a party or has a direct and substantial interest;
shall be subject to the penalties set forth in section 216 of this title.
(c) A special Government employee shall be subject to subsections (a) and (b) only in
relation to a covered matter involving a specific party or parties—
(1) in which he has at any time participated personally and substantially as a
Government employee or special Government employee through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or otherwise; or
(2) which is pending in the department or agency of the Government in which he is
serving.
Paragraph (2) shall not apply in the case of a special Government employee who has served
in such department or agency no more than sixty days during the immediately preceding
period of three hundred and sixty-five consecutive days.
(d)(1) Nothing in subsection (a) or (b) prevents an officer or employee, if not inconsistent
with the faithful performance of that officer's or employee's duties, from acting without
compensation as agent or attorney for, or otherwise representing—
(A) any person who is the subject of disciplinary, loyalty, or other personnel
administration proceedings in connection with those proceedings; or
7
(B) except as provided in paragraph (2), any cooperative, voluntary, professional,
recreational, or similar organization or group not established or operated for profit, if
a majority of the organization's or group's members are current officers or employees
of the United States or of the District of Columbia, or their spouses or dependent
children.
(2) Paragraph (1)(B) does not apply with respect to a covered matter that—
(A) is a claim under subsection (a)(1) or (b)(1);
(B) is a judicial or administrative proceeding where the organization or group is a
party; or
(C) involves a grant, contract, or other agreement (including a request for any
such grant, contract, or agreement) providing for the disbursement of Federal funds to
the organization or group.
(e) Nothing in subsection (a) or (b) prevents an officer or employee, including a special
Government employee, from acting, with or without compensation, as agent or attorney for,
or otherwise representing, his parents, spouse, child, or any person for whom, or for any
estate for which, he is serving as guardian, executor, administrator, trustee, or other personal
fiduciary except—
(1) in those matters in which he has participated personally and substantially as a
Government employee or special Government employee through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or otherwise, or
(2) in those matters which are the subject of his official responsibility,
subject to approval by the Government official responsible for appointment to his position.
(f) Nothing in subsection (a) or (b) prevents a special Government employee from acting
as agent or attorney for another person in the performance of work under a grant by, or a
contract with or for the benefit of, the United States if the head of the department or agency
concerned with the grant or contract certifies in writing that the national interest so requires
and publishes such certification in the Federal Register.
(g) Nothing in this section prevents an officer or employee from giving testimony under
oath or from making statements required to be made under penalty for perjury or contempt.
(h) For the purpose of this section, the term ''covered matter'' means any judicial or other
proceeding, application, request for a ruling or other determination, contract, claim,
controversy, investigation, charge, accusation, arrest, or other particular matter.
(i) Nothing in this section prevents an employee from acting pursuant to—
(1) chapter 71 of title 5;
(2) section 1004 or chapter 12 of title 39;
(3) section 3 of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831b);
(4) chapter 10 of title I of the Foreign Service Act of 1980 (22 U.S.C. 4104 et seq.);
or
(5) any provision of any other Federal or District of Columbia law that authorizes
labor-management relations between an agency or instrumentality of the United States or
the District of Columbia and any labor organization that represents its employees.
8
18 U.S.C. § 206. Exemption of retired officers of the uniformed services
Sections 203 and 205 of this title shall not apply to a retired officer of the uniformed
services of the United States while not on active duty and not otherwise an officer or
employee of the United States, or to any person specially excepted by Act of Congress.
18 U.S.C. § 207. Restrictions on former officers, employees, and elected officials of the
executive and legislative branches
(a) RESTRICTIONS ON ALL OFFICERS AND EMPLOYEES OF THE EXECUTIVE BRANCH AND
CERTAIN OTHER AGENCIES.—
(1) PERMANENT RESTRICTIONS ON REPRESENTATION ON PARTICULAR MATTERS.—Any
person who is an officer or employee (including any special Government employee) of
the executive branch of the United States (including any independent agency of the
United States), or of the District of Columbia, and who, after the termination of his or her
service or employment with the United States or the District of Columbia, knowingly
makes, with the intent to influence, any communication to or appearance before any
officer or employee of any department, agency, court, or court-martial of the United
States or the District of Columbia, on behalf of any other person (except the United States
or the District of Columbia) in connection with a particular matter—
(A) in which the United States or the District of Columbia is a party or has a
direct and substantial interest,
(B) in which the person participated personally and substantially as such officer or
employee, and
(C) which involved a specific party or specific parties at the time of such
participation,
shall be punished as provided in section 216 of this title.
(2) TWO-YEAR RESTRICTIONS CONCERNING PARTICULAR MATTERS UNDER OFFICIAL
RESPONSIBILITY.—Any person subject to the restrictions contained in paragraph (1) who,
within 2 years after the termination of his or her service or employment with the United
States or the District of Columbia, knowingly makes, with the intent to influence, any
communication to or appearance before any officer or employee of any department,
agency, court, or court-martial of the United States or the District of Columbia, on behalf
of any other person (except the United States or the District of Columbia), in connection
with a particular matter—
(A) in which the United States or the District of Columbia is a party or has a
direct and substantial interest,
(B) which such person knows or reasonably should know was actually pending
under his or her official responsibility as such officer or employee within a period of
1 year before the termination of his or her service or employment with the United
States or the District of Columbia, and
(C) which involved a specific party or specific parties at the time it was so
pending,
shall be punished as provided in section 216 of this title.
9
(3) CLARIFICATION OF RESTRICTIONS.—The restrictions contained in paragraphs (1)
and (2) shall apply—
(A) in the case of an officer or employee of the executive branch of the United
States (including any independent agency), only with respect to communications to or
appearances before any officer or employee of any department, agency, court, or
court-martial of the United States on behalf of any other person (except the United
States), and only with respect to a matter in which the United States is a party or has a
direct and substantial interest; and
(B) in the case of an officer or employee of the District of Columbia, only with
respect to communications to or appearances before any officer or employee of any
department, agency, or court of the District of Columbia on behalf of any other
person (except the District of Columbia), and only with respect to a matter in which
the District of Columbia is a party or has a direct and substantial interest.
(b) ONE-YEAR RESTRICTIONS ON AIDING OR ADVISING.—
(1) IN GENERAL.—Any person who is a former officer or employee of the executive
branch of the United States (including any independent agency) and is subject to the
restrictions contained in subsection (a)(1), or any person who is a former officer or
employee of the legislative branch or a former Member of Congress, who personally and
substantially participated in any ongoing trade or treaty negotiation on behalf of the
United States within the 1-year period preceding the date on which his or her service or
employment with the United States terminated, and who had access to information
concerning such trade or treaty negotiation which is exempt from disclosure under
section 552 of title 5, which is so designated by the appropriate department or agency,
and which the person knew or should have known was so designated, shall not, on the
basis of that information, knowingly represent, aid, or advise any other person (except the
United States) concerning such ongoing trade or treaty negotiation for a period of 1 year
after his or her service or employment with the United States terminates. Any person
who violates this subsection shall be punished as provided in section 216 of this title.
(2) DEFINITION.—For purposes of this paragraph—
(A) the term ''trade negotiation'' means negotiations which the President
determines to undertake to enter into a trade agreement pursuant to section 1102 of
the Omnibus Trade and Competitiveness Act of 1988, and does not include any action
taken before that determination is made; and
(B) the term ''treaty'' means an international agreement made by the President that
requires the advice and consent of the Senate.
(c) ONE-YEAR RESTRICTIONS ON CERTAIN SENIOR PERSONNEL OF THE EXECUTIVE BRANCH
AND INDEPENDENT AGENCIES.—
(1) RESTRICTIONS.—In addition to the restrictions set forth in subsections (a) and (b),
any person who is an officer or employee (including any special Government employee)
of the executive branch of the United States (including an independent agency), who is
referred to in paragraph (2), and who, within 1 year after the termination of his or her
service or employment as such officer or employee, knowingly makes, with the intent to
influence, any communication to or appearance before any officer or employee of the
10
department or agency in which such person served within 1 year before such termination,
on behalf of any other person (except the United States), in connection with any matter
on which such person seeks official action by any officer or employee of such department
or agency, shall be punished as provided in section 216 of this title.
(2) PERSONS TO WHOM RESTRICTIONS APPLY.—(A) Paragraph (1) shall apply to a
person (other than a person subject to the restrictions of subsection (d))—
(i) employed at a rate of pay specified in or fixed according to subchapter II of
chapter 53 of title 5,
(ii) employed in a position which is not referred to in clause (i) and for which
that person is paid at a rate of basic pay which is equal to or greater than 86.5
percent of the rate of basic pay for level II of the Executive Schedule, or, for a
period of 2 years following the enactment of the National Defense Authorization
Act for Fiscal Year 2004, a person who, on the day prior to the enactment of that
Act, was employed in a position which is not referred to in clause (i) and for
which the rate of basic pay, exclusive of any locality-based pay adjustment under
section 5304 or section 5304(a) of title 5, was equal to or greater than the rate of
basic pay payable for level 5 of the Senior Executive Service on the day prior to
the enactment of that Act,
(iii) appointed by the President to a position under section 105(a)(2)(B) of title
3 or by the Vice President to a position under section 106(a)(1)(B) of title 3, or
(iv) employed in a position which is held by an active duty commissioned
officer of the uniformed services who is serving in a grade or rank for which the
pay grade (as specified in section 201 of title 37) is pay grade O-7 or above; or
(v) assigned from a private sector organization to an agency under chapter 37
of title 5.
(B) Paragraph (1) shall not apply to a special Government employee who serves
less than 60 days in the 1-year period before his or her service or employment as such
employee terminates.
(C) At the request of a department or agency, the Director of the Office of
Government Ethics may waive the restrictions contained in paragraph (1) with respect
to any position, or category of positions, referred to in clause (ii) or (iv) of
subparagraph (A), in such department or agency if the Director determines that—
(i) the imposition of the restrictions with respect to such position or positions
would create an undue hardship on the department or agency in obtaining
qualified personnel to fill such position or positions, and
(ii) granting the waiver would not create the potential for use of undue
influence or unfair advantage.
(3) MEMBERS OF THE INDEPENDENT MEDICARE ADVISORY BOARD [INDEPENDENT
PAYMENT ADVISORY BOARD].
(A) IN GENERAL.—Paragraph (1) shall apply to a member of the Independent
Medicare Advisory Board [Independent Payment Advisory Board] under section
1899A (42 U.S.C. 1395kkk).
(B) AGENCIES AND CONGRESS.—For purposes of paragraph (1), the agency in
11
which the individual described in subparagraph (A) served shall be considered to be
the Independent Medicare Advisory Board [Independent Payment Advisory Board],
the Department of Health and Human Services, and the relevant committees of
jurisdiction of Congress, including the Committee on Ways and Means and the
Committee on Energy and Commerce of the House of Representatives and the
Committee on Finance of the Senate.
(d) RESTRICTIONS ON VERY SENIOR PERSONNEL OF THE EXECUTIVE BRANCH AND
INDEPENDENT AGENCIES.—
(1) RESTRICTIONS.—In addition to the restrictions set forth in subsections (a) and (b),
any person who—
(A) serves in the position of Vice President of the United States,
(B) is employed in a position in the executive branch of the United States
(including any independent agency) at a rate of pay payable for level I of the
Executive Schedule or employed in a position in the Executive Office of the President
at a rate of pay payable for level II of the Executive Schedule, or
(C) is appointed by the President to a position under section 105(a)(2)(A) of title 3
or by the Vice President to a position under section 106(a)(1)(A) of title 3,
and who, within 2 years after the termination of that person's service in that position,
knowingly makes, with the intent to influence, any communication to or appearance
before any person described in paragraph (2), on behalf of any other person (except the
United States), in connection with any matter on which such person seeks official action
by any officer or employee of the executive branch of the United States, shall be
punished as provided in section 216 of this title.
(2) PERSONS WHO MAY NOT BE CONTACTED.—The persons referred to in paragraph (1)
with respect to appearances or communications by a person in a position described in
subparagraph (A), (B), or (C) of paragraph (1) are—
(A) any officer or employee of any department or agency in which such person
served in such position within a period of 1 year before such person's service or
employment with the United States Government terminated, and
(B) any person appointed to a position in the executive branch which is listed in
section 5312, 5313, 5314, 5315, or 5316 of title 5.
(e) RESTRICTIONS ON MEMBERS OF CONGRESS AND OFFICERS AND EMPLOYEES OF THE
LEGISLATIVE BRANCH.—
(1) MEMBERS OF CONGRESS AND ELECTED OFFICERS.—
(A) Senators.—Any person who is a Senator and who, within 2 years after that
person leaves office, knowingly makes, with the intent to influence, any
communication to or appearance before any Member, officer, or employee of either
House of Congress or any employee of any other legislative office of the Congress,
on behalf of any other person (except the United States) in connection with any
matter on which such former Senator seeks action by a Member, officer, or employee
of either House of Congress, in his or her official capacity, shall be punished as
provided in section 216 of this title.
(B) Members and officers of the House of Representatives.—
12
(i) Any person who is a Member of the House of Representatives or an elected
officer of the House of Representatives and who, within 1 year after that person
leaves office, knowingly makes, with the intent to influence, any communication
to or appearance before any of the persons described in clause (ii) or (iii), on
behalf of any other person (except the United States) in connection with any
matter on which such former Member of Congress or elected officer seeks action
by a Member, officer, or employee of either House of Congress, in his or her
official capacity, shall be punished as provided in section 216 of this title.
(ii) The persons referred to in clause (i) with respect to appearances or
communications by a former Member of the House of Representatives are any
Member, officer, or employee of either House of Congress and any employee of
any other legislative office of the Congress.
(iii) The persons referred to in clause (i) with respect to appearances or
communications by a former elected officer are any Member, officer, or
employee of the House of Representatives.
(2) OFFICERS AND STAFF OF THE SENATE.—Any person who is an elected officer of the
Senate, or an employee of the Senate to whom paragraph (7)(A) applies, and who, within
1 year after that person leaves office or employment, knowingly makes, with the intent to
influence, any communication to or appearance before any Senator or any officer or
employee of the Senate, on behalf of any other person (except the United States) in
connection with any matter on which such former elected officer or former employee
seeks action by a Senator or an officer or employee of the Senate, in his or her official
capacity, shall be punished as provided in section 216 of this title.
(3) PERSONAL STAFF.—(A) Any person who is an employee of a Member of the
House of Representatives to whom paragraph (7)(A) applies and who, within 1 year after
the termination of that employment, knowingly makes, with the intent to influence, any
communication to or appearance before any of the persons described in subparagraph
(B), on behalf of any other person (except the United States) in connection with any
matter on which such former employee seeks action by a Member, officer, or employee
of either House of Congress, in his or her official capacity, shall be punished as provided
in section 216 of this title.
(B) The persons referred to in subparagraph (A) with respect to appearances or
communications by a person who is a former employee are the following:
(i) the Member of the House of Representatives for whom that person was an
employee; and
(ii) any employee of that Member of the House of Representatives.
(4) COMMITTEE STAFF.—Any person who is an employee of a committee of the
House of Representatives, or an employee of a joint committee of the Congress whose
pay is disbursed by the Clerk of the House of Representatives, to whom paragraph (7)(A)
applies and who, within 1 year after the termination of that person's employment on such
committee or joint committee (as the case may be), knowingly makes, with the intent to
influence, any communication to or appearance before any person who is a Member or an
employee of that committee or joint committee (as the case may be) or who was a
13
Member of the committee or joint committee (as the case may be) in the year
immediately prior to the termination of such person's employment by the committee or
joint committee (as the case may be), on behalf of any other person (except the United
States) in connection with any matter on which such former employee seeks action by a
Member, officer, or employee of either House of Congress, in his or her official capacity,
shall be punished as provided in section 216 of this title.
(5) LEADERSHIP STAFF.—(A) Any person who is an employee on the leadership staff
of the House of Representatives to whom paragraph (7)(A) applies and who, within 1
year after the termination of that person's employment on such staff, knowingly makes,
with the intent to influence, any communication to or appearance before any of the
persons described in subparagraph (B), on behalf of any other person (except the United
States) in connection with any matter on which such former employee seeks action by a
Member, officer, or employee of either House of Congress, in his or her official capacity,
shall be punished as provided in section 216 of this title.
(B) The persons referred to in subparagraph (A) with respect to appearances or
communications by a former employee are any Member of the leadership of the
House of Representatives and any employee on the leadership staff of the House of
Representatives.
(6) OTHER LEGISLATIVE OFFICES.—(A) Any person who is an employee of any other
legislative office of the Congress to whom paragraph (7)(B) applies and who, within 1
year after the termination of that person's employment in such office, knowingly makes,
with the intent to influence, any communication to or appearance before any of the
persons described in subparagraph (B), on behalf of any other person (except the United
States) in connection with any matter on which such former employee seeks action by
any officer or employee of such office, in his or her official capacity, shall be punished as
provided in section 216 of this title.
(B) The persons referred to in subparagraph (A) with respect to appearances or
communications by a former employee are the employees and officers of the former
legislative office of the Congress of the former employee.
(7) LIMITATION ON RESTRICTIONS.—(A) The restrictions contained in paragraphs (2),
(3), (4), and (5) apply only to acts by a former employee who, for at least 60 days, in the
aggregate, during the 1-year period before that former employee's service as such
employee terminated, was paid a rate of basic pay equal to or greater than an amount
which is 75 percent of the basic rate of pay payable for a Member of the House of
Congress in which such employee was employed.
(B) The restrictions contained in paragraph (6) apply only to acts by a former
employee who, for at least 60 days, in the aggregate, during the 1-year period before
that former employee's service as such employee terminated, was employed in a
position for which the rate of basic pay, exclusive of any locality-based pay
adjustment under section 5302 of title 5 is equal to or greater than the basic rate of
pay payable for level IV of the Executive Schedule.
(8) EXCEPTION.— This subsection shall not apply to contacts with the staff of the
Secretary of the Senate or the Clerk of the House of Representatives regarding
14
compliance with lobbying disclosure requirements under the Lobbying Disclosure Act of
1995.
(9) DEFINITIONS.—As used in this subsection—
(A) the term ''committee of Congress'' includes standing committees, joint
committees, and select committees;
(B) a person is an employee of a House of Congress if that person is an employee
of the Senate or an employee of the House of Representatives;
(C) the term ''employee of the House of Representatives'' means an employee of a
Member of the House of Representatives, an employee of a committee of the House
of Representatives, an employee of a joint committee of the Congress whose pay is
disbursed by the Clerk of the House of Representatives, and an employee on the
leadership staff of the House of Representatives;
(D) the term ''employee of the Senate'' means an employee of a Senator, an
employee of a committee of the Senate, an employee of a joint committee of the
Congress whose pay is disbursed by the Secretary of the Senate, and an employee on
the leadership staff of the Senate;
(E) a person is an employee of a Member of the House of Representatives if that
person is an employee of a Member of the House of Representatives under the clerk
hire allowance;
(F) a person is an employee of a Senator if that person is an employee in a
position in the office of a Senator;
(G) the term ''employee of any other legislative office of the Congress'' means an
officer or employee of the Architect of the Capitol, the United States Botanic Garden,
the Government Accountability Office, the Government Printing Office, 2 the Library
of Congress, the Office of Technology Assessment, the Congressional Budget Office,
the United States Capitol Police, and any other agency, entity, or office in the
legislative branch not covered by paragraph (1), (2), (3), (4), or (5) of this subsection;
(H) the term ''employee on the leadership staff of the House of Representatives''
means an employee of the office of a Member of the leadership of the House of
Representatives described in subparagraph (L), and any elected minority employee of
the House of Representatives;
(I) the term ''employee on the leadership staff of the Senate'' means an employee
of the office of a Member of the leadership of the Senate described in subparagraph
(M);
(J) the term ''Member of Congress'' means a Senator or a Member of the House of
Representatives;
(K) the term ''Member of the House of Representatives'' means a Representative
in, or a Delegate or Resident Commissioner to, the Congress;
(L) the term ''Member of the leadership of the House of Representatives'' means
the Speaker, majority leader, minority leader, majority whip, minority whip, chief
2
The Government Printing Office has been redesignated the Government Publishing Office. Consolidated and Further Continuing Appropriations
Act, 2015, Pub. L. 113-235 § 1301, 128 Stat. 2130 (2014).
15
deputy majority whip, chief deputy minority whip, chairman of the Democratic
Steering Committee, chairman and vice chairman of the Democratic Caucus,
chairman, vice chairman, and secretary of the Republican Conference, chairman of
the Republican Research Committee, and chairman of the Republican Policy
Committee, of the House of Representatives (or any similar position created on or
after the effective date set forth in section 102(a) of the Ethics Reform Act of 1989);
(M) the term ''Member of the leadership of the Senate'' means the Vice President,
and the President pro tempore, Deputy President pro tempore, majority leader,
minority leader, majority whip, minority whip, chairman and secretary of the
Conference of the Majority, chairman and secretary of the Conference of the
Minority, chairman and co-chairman of the Majority Policy Committee, and chairman
of the Minority Policy Committee, of the Senate (or any similar position created on or
after the effective date set forth in section 102(a) of the Ethics Reform Act of 1989).
(f) RESTRICTIONS RELATING TO FOREIGN ENTITIES.—
(1) RESTRICTIONS.—Any person who is subject to the restrictions contained in
subsection (c), (d), or (e) and who knowingly, within 1 year after leaving the position,
office, or employment referred to in such subsection—
(A) represents a foreign entity before any officer or employee of any department
or agency of the United States with the intent to influence a decision of such officer
or employee in carrying out his or her official duties, or
(B) aids or advises a foreign entity with the intent to influence a decision of any
officer or employee of any department or agency of the United States, in carrying out
his or her official duties,
shall be punished as provided in section 216 of this title.
(2) SPECIAL RULE FOR TRADE REPRESENTATIVE.—With respect to a person who is the
United States Trade Representative or Deputy United States Trade Representative, the
restrictions described in paragraph (1) shall apply to representing, aiding, or advising
foreign entities at any time after the termination of that person's service as the United
States Trade Representative.
(3) DEFINITION.—For purposes of this subsection, the term ''foreign entity'' means the
government of a foreign country as defined in section 1(e) of the Foreign Agents
Registration Act of 1938, as amended, or a foreign political party as defined in section
1(f) of that Act.
(g) SPECIAL RULES FOR DETAILEES.—For purposes of this section, a person who is
detailed from one department, agency, or other entity to another department, agency, or other
entity shall, during the period such person is detailed, be deemed to be an officer or employee
of both departments, agencies, or such entities.
(h) DESIGNATIONS OF SEPARATE STATUTORY AGENCIES AND BUREAUS.—
(1) DESIGNATIONS.—For purposes of subsection (c) and except as provided in
paragraph (2), whenever the Director of the Office of Government Ethics determines that
an agency or bureau within a department or agency in the executive branch exercises
functions which are distinct and separate from the remaining functions of the department
or agency and that there exists no potential for use of undue influence or unfair advantage
16
based on past Government service, the Director shall by rule designate such agency or
bureau as a separate department or agency. On an annual basis the Director of the Office
of Government Ethics shall review the designations and determinations made under this
subparagraph and, in consultation with the department or agency concerned, make such
additions and deletions as are necessary. Departments and agencies shall cooperate to the
fullest extent with the Director of the Office of Government Ethics in the exercise of his
or her responsibilities under this paragraph.
(2) INAPPLICABILITY OF DESIGNATIONS.—No agency or bureau within the Executive
Office of the President may be designated under paragraph (1) as a separate department
or agency. No designation under paragraph (1) shall apply to persons referred to in
subsection (c)(2)(A)(i) or (iii).
(i) DEFINITIONS.—For purposes of this section—
(1) the term ''officer or employee'', when used to describe the person to whom a
communication is made or before whom an appearance is made, with the intent to
influence, shall include—
(A) in subsections (a), (c), and (d), the President and the Vice President; and
(B) in subsection (f), the President, the Vice President, and Members of Congress;
(2) the term ''participated'' means an action taken as an officer or employee through
decision, approval, disapproval, recommendation, the rendering of advice, investigation,
or other such action; and
(3) the term ''particular matter'' includes any investigation, application, request for a
ruling or determination, rulemaking, contract, controversy, claim, charge, accusation,
arrest, or judicial or other proceeding.
(j) EXCEPTIONS.—
(1) OFFICIAL GOVERNMENT DUTIES.— (A) In general.— The restrictions contained in
this section shall not apply to acts done in carrying out official duties on behalf of the
United States or the District of Columbia or as an elected official of a State or local
government.
(B) Tribal organizations and inter-tribal consortiums. —The restrictions contained
in this section shall not apply to acts authorized by section 104(j) of the Indian SelfDetermination and Education Assistance Act (25 U.S.C. 450i(j)).
(2) STATE AND LOCAL GOVERNMENTS AND INSTITUTIONS, HOSPITALS, AND
ORGANIZATIONS.—The restrictions contained in subsections (c), (d), and (e) shall not
apply to acts done in carrying out official duties as an employee of—
(A) an agency or instrumentality of a State or local government if the appearance,
communication, or representation is on behalf of such government, or
(B) an accredited, degree-granting institution of higher education, as defined in
section 101 of the Higher Education Act of 1965 [20 U.S.C. 1001], or a hospital or
medical research organization, exempted and defined under section 501(c)(3) of the
Internal Revenue Code of 1986 [26 U.S.C. 501(c)(3)], if the appearance,
communication, or representation is on behalf of such institution, hospital, or
organization.
(3) INTERNATIONAL ORGANIZATIONS.—The restrictions contained in this section shall
17
not apply to an appearance or communication on behalf of, or advice or aid to, an
international organization in which the United States participates, if the Secretary of State
certifies in advance that such activity is in the interests of the United States.
(4) SPECIAL KNOWLEDGE.—The restrictions contained in subsections (c), (d), and (e)
shall not prevent an individual from making or providing a statement, which is based on
the individual's own special knowledge in the particular area that is the subject of the
statement, if no compensation is thereby received.
(5) EXCEPTION FOR SCIENTIFIC OR TECHNOLOGICAL INFORMATION.—The restrictions
contained in subsections (a), (c), and (d) shall not apply with respect to the making of
communications solely for the purpose of furnishing scientific or technological
information, if such communications are made under procedures acceptable to the
department or agency concerned or if the head of the department or agency concerned
with the particular matter, in consultation with the Director of the Office of Government
Ethics, makes a certification, published in the Federal Register, that the former officer or
employee has outstanding qualifications in a scientific, technological, or other technical
discipline, and is acting with respect to a particular matter which requires such
qualifications, and that the national interest would be served by the participation of the
former officer or employee. For purposes of this paragraph, the term ''officer or
employee'' includes the Vice President.
(6) EXCEPTION FOR TESTIMONY.—Nothing in this section shall prevent an individual
from giving testimony under oath, or from making statements required to be made under
penalty of perjury. Notwithstanding the preceding sentence—
(A) a former officer or employee of the executive branch of the United States
(including any independent agency) who is subject to the restrictions contained in
subsection (a)(1) with respect to a particular matter may not, except pursuant to court
order, serve as an expert witness for any other person (except the United States) in
that matter; and
(B) a former officer or employee of the District of Columbia who is subject to the
restrictions contained in subsection (a)(1) with respect to a particular matter may not,
except pursuant to court order, serve as an expert witness for any other person (except
the District of Columbia) in that matter.
(7) POLITICAL PARTIES AND CAMPAIGN COMMITTEES.—
(A) Except as provided in subparagraph (B), the restrictions contained in
subsections (c), (d), and (e) shall not apply to a communication or appearance made
solely on behalf of a candidate in his or her capacity as a candidate, an authorized
committee, a national committee, a national Federal campaign committee, a State
committee, or a political party.
(B) Subparagraph (A) shall not apply to—
(i) any communication to, or appearance before, the Federal Election
Commission by a former officer or employee of the Federal Election
Commission; or
18
(ii) a communication or appearance made by a person who is subject to the
restrictions contained in subsections 3 (c), (d), or (e) if, at the time of the
communication or appearance, the person is employed by a person or entity other
than—
(I) a candidate, an authorized committee, a national committee, a national
Federal campaign committee, a State committee, or a political party; or
(II) a person or entity who represents, aids, or advises only persons or
entities described in subclause (I).
(C) For purposes of this paragraph—
(i) the term ''candidate'' means any person who seeks nomination for election,
or election, to Federal or State office or who has authorized others to explore on
his or her behalf the possibility of seeking nomination for election, or election, to
Federal or State office;
(ii) the term ''authorized committee'' means any political committee designated
in writing by a candidate as authorized to receive contributions or make
expenditures to promote the nomination for election, or the election, of such
candidate, or to explore the possibility of seeking nomination for election, or the
election, of such candidate, except that a political committee that receives
contributions or makes expenditures to promote more than 1 candidate may not be
designated as an authorized committee for purposes of subparagraph (A);
(iii) the term ''national committee'' means the organization which, by virtue of
the bylaws of a political party, is responsible for the day-to-day operation of such
political party at the national level;
(iv) the term ''national Federal campaign committee'' means an organization
that, by virtue of the bylaws of a political party, is established primarily for the
purpose of providing assistance, at the national level, to candidates nominated by
that party for election to the office of Senator or Representative in, or Delegate or
Resident Commissioner to, the Congress;
(v) the term ''State committee'' means the organization which, by virtue of the
bylaws of a political party, is responsible for the day-to-day operation of such
political party at the State level;
(vi) the term ''political party'' means an association, committee, or
organization that nominates a candidate for election to any Federal or State
elected office whose name appears on the election ballot as the candidate of such
association, committee, or organization; and
(vii) the term ''State'' means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or possession of
the United States.
(k)(1)(A) The President may grant a waiver of a restriction imposed by this section to any
officer or employee described in paragraph (2) if the President determines and certifies in
3
So in original. Probably should be ''subsection''.
19
writing that it is in the public interest to grant the waiver and that the services of the officer
or employee are critically needed for the benefit of the Federal Government. Not more than
25 officers and employees currently employed by the Federal Government at any one time
may have been granted waivers under this paragraph.
(B)(i) A waiver granted under this paragraph to any person shall apply only with
respect to activities engaged in by that person after that person's Federal Government
employment is terminated and only to that person's employment at a Governmentowned, contractor operated entity with which the person served as an officer or
employee immediately before the person's Federal Government employment began.
(ii) Notwithstanding clause (i), a waiver granted under this paragraph to any
person who was an officer or employee of Lawrence Livermore National
Laboratory, Los Alamos National Laboratory, or Sandia National Laboratory
immediately before the person's Federal Government employment began shall
apply to that person's employment by any such national laboratory after the
person's employment by the Federal Government is terminated.
(2) Waivers under paragraph (1) may be granted only to civilian officers and employees
of the executive branch, other than officers and employees in the Executive Office of the
President.
(3) A certification under paragraph (1) shall take effect upon its publication in the Federal
Register and shall identify—
(A) the officer or employee covered by the waiver by name and by position, and
(B) the reasons for granting the waiver.
A copy of the certification shall also be provided to the Director of the Office of Government
Ethics.
(4) The President may not delegate the authority provided by this subsection.
(5)(A) Each person granted a waiver under this subsection shall prepare reports, in
accordance with subparagraph (B), stating whether the person has engaged in activities
otherwise prohibited by this section for each six-month period described in subparagraph (B),
and if so, what those activities were.
(B) A report under subparagraph (A) shall cover each six-month period beginning
on the date of the termination of the person's Federal Government employment (with
respect to which the waiver under this subsection was granted) and ending two years
after that date. Such report shall be filed with the President and the Director of the
Office of Government Ethics not later than 60 days after the end of the six-month
period covered by the report. All reports filed with the Director under this paragraph
shall be made available for public inspection and copying.
(C) If a person fails to file any report in accordance with subparagraphs (A) and
(B), the President shall revoke the waiver and shall notify the person of the
revocation. The revocation shall take effect upon the person's receipt of the
notification and shall remain in effect until the report is filed.
(D) Any person who is granted a waiver under this subsection shall be ineligible
for appointment in the civil service unless all reports required of such person by
subparagraphs (A) and (B) have been filed.
20
(E) As used in this subsection, the term ''civil service'' has the meaning given that
term in section 2101 of title 5.
(l) CONTRACT ADVICE BY FORMER DETAILS.—Whoever, being an employee of a private
sector organization assigned to an agency under chapter 37 of title 5, within one year after
the end of that assignment, knowingly represents or aids, counsels, or assists in representing
any other person (except the United States) in connection with any contract with that agency
shall be punished as provided in section 216 of this title.
18 U.S.C. § 208. Acts affecting a personal financial interest
(a) Except as permitted by subsection (b) hereof, whoever, being an officer or employee
of the executive branch of the United States Government, or of any independent agency of
the United States, a Federal Reserve bank director, officer, or employee, or an officer or
employee of the District of Columbia, including a special Government employee, participates
personally and substantially as a Government officer or employee, through decision,
approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise,
in a judicial or other proceeding, application, request for a ruling or other determination,
contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to
his knowledge, he, his spouse, minor child, general partner, organization in which he is
serving as officer, director, trustee, general partner or employee, or any person or
organization with whom he is negotiating or has any arrangement concerning prospective
employment, has a financial interest—
Shall be subject to the penalties set forth in section 216 of this title.
(b) Subsection (a) shall not apply—
(1) if the officer or employee first advises the Government official responsible for
appointment to his or her position of the nature and circumstances of the judicial or other
proceeding, application, request for a ruling or other determination, contract, claim,
controversy, charge, accusation, arrest, or other particular matter and makes full
disclosure of the financial interest and receives in advance a written determination made
by such official that the interest is not so substantial as to be deemed likely to affect the
integrity of the services which the Government may expect from such officer or
employee;
(2) if, by regulation issued by the Director of the Office of Government Ethics,
applicable to all or a portion of all officers and employees covered by this section, and
published in the Federal Register, the financial interest has been exempted from the
requirements of subsection (a) as being too remote or too inconsequential to affect the
integrity of the services of the Government officers or employees to which such
regulation applies;
(3) in the case of a special Government employee serving on an advisory committee
within the meaning of the Federal Advisory Committee Act (including an individual
being considered for an appointment to such a position), the official responsible for the
employee's appointment, after review of the financial disclosure report filed by the
individual pursuant to the Ethics in Government Act of 1978, certifies in writing that the
need for the individual's services outweighs the potential for a conflict of interest created
21
by the financial interest involved; or
(4) if the financial interest that would be affected by the particular matter involved is
that resulting solely from the interest of the officer or employee, or his or her spouse or
minor child, in birthrights—
(A) in an Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act, which is recognized as eligible for the
special programs and services provided by the United States to Indians because of
their status as Indians,
(B) in an Indian allotment the title to which is held in trust by the United States or
which is inalienable by the allottee without the consent of the United States, or
(C) in an Indian claims fund held in trust or administered by the United States,
if the particular matter does not involve the Indian allotment or claims fund or the Indian
tribe, band, nation, organized group or community, or Alaska Native village corporation
as a specific party or parties.
(c)(1) For the purpose of paragraph (1) of subsection (b), in the case of class A and B
directors of Federal Reserve banks, the Board of Governors of the Federal Reserve System
shall be deemed to be the Government official responsible for appointment.
(2) The potential availability of an exemption under any particular paragraph of
subsection (b) does not preclude an exemption being granted pursuant to another
paragraph of subsection (b).
(d)(1) Upon request, a copy of any determination granting an exemption under subsection
(b)(1) or (b)(3) shall be made available to the public by the agency granting the exemption
pursuant to the procedures set forth in section 105 of the Ethics in Government Act of 1978.
In making such determination available, the agency may withhold from disclosure any
information contained in the determination that would be exempt from disclosure under
section 552 of title 5. For purposes of determinations under subsection (b)(3), the information
describing each financial interest shall be no more extensive than that required of the
individual in his or her financial disclosure report under the Ethics in Government Act of
1978.
(2) The Office of Government Ethics, after consultation with the Attorney General,
shall issue uniform regulations for the issuance of waivers and exemptions under
subsection (b) which shall—
(A) list and describe exemptions; and
(B) provide guidance with respect to the types of interests that are not so
substantial as to be deemed likely to affect the integrity of the services the
Government may expect from the employee.
18 U.S.C. § 209. Salary of Government officials and employees payable only by United
States
(a) Whoever receives any salary, or any contribution to or supplementation of salary, as
compensation for his services as an officer or employee of the executive branch of the United
States Government, of any independent agency of the United States, or of the District of
22
Columbia, from any source other than the Government of the United States, except as may be
contributed out of the treasury of any State, county, or municipality; or
Whoever, whether an individual, partnership, association, corporation, or other
organization pays, makes any contribution to, or in any way supplements, the salary of any
such officer or employee under circumstances which would make its receipt a violation of
this subsection—
Shall be subject to the penalties set forth in section 216 of this title.
(b) Nothing herein prevents an officer or employee of the executive branch of the United
States Government, or of any independent agency of the United States, or of the District of
Columbia, from continuing to participate in a bona fide pension, retirement, group life, health
or accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plan
maintained by a former employer.
(c) This section does not apply to a special Government employee or to an officer or
employee of the Government serving without compensation, whether or not he is a special
Government employee, or to any person paying, contributing to, or supplementing his salary
as such.
(d) This section does not prohibit payment or acceptance of contributions, awards, or
other expenses under the terms of chapter 41 of title 5.
(e) This section does not prohibit the payment of actual relocation expenses incident to
participation, or the acceptance of same by a participant in an executive exchange or
fellowship program in an executive agency: Provided, That such program has been
established by statute or Executive order of the President, offers appointments not to exceed
three hundred and sixty-five days, and permits no extensions in excess of ninety additional
days or, in the case of participants in overseas assignments, in excess of three hundred and
sixty-five days.
(f) This section does not prohibit acceptance or receipt, by any officer or employee
injured during the commission of an offense described in section 351 or 1751 of this title, of
contributions or payments from an organization which is described in section 501(c)(3) of the
Internal Revenue Code of 1986 and which is exempt from taxation under section 501(a) of
such Code.
(g)(1) This section does not prohibit an employee of a private sector organization, while
assigned to an agency under chapter 37 of title 5, from continuing to receive pay and benefits
from such organization in accordance with such chapter.
(2) For purposes of this subsection, the term "agency" means an agency (as defined
by section 3701 of title 5) and the Office of the Chief Technology Officer of the District
of Columbia.
(h) This section does not prohibit a member of the reserve components of the armed
forces on active duty pursuant to a call or order to active duty under a provision of law
referred to in section 101(a)(13) of title 10 from receiving from any person that employed
such member before the call or order to active duty any payment of any part of the salary or
wages that such person would have paid the member if the member’s employment had not
been interrupted by such call or order to active duty.
23
18 U.S.C. § 210. Offer to procure appointive public office
Whoever pays or offers or promises any money or thing of value, to any person, firm, or
corporation in consideration of the use or promise to use any influence to procure any
appointive office or place under the United States for any person, shall be fined under this
title or imprisoned not more than one year, or both.
18 U.S.C. § 211. Acceptance or solicitation to obtain appointive public office
Whoever solicits or receives, either as a political contribution, or for personal emolument,
any money or thing of value, in consideration of the promise of support or use of influence in
obtaining for any person any appointive office or place under the United States, shall be fined
under this title or imprisoned not more than one year, or both.
Whoever solicits or receives any thing of value in consideration of aiding a person to
obtain employment under the United States either by referring his name to an executive
department or agency of the United States or by requiring the payment of a fee because such
person has secured such employment shall be fined under this title, or imprisoned not more
than one year, or both. This section shall not apply to such services rendered by an
employment agency pursuant to the written request of an executive department or agency of
the United States.
18 U.S.C. § 216. Penalties and injunctions
(a) The punishment for an offense under section 203, 204, 205, 207, 208, or 209 of this
title is the following:
(1) Whoever engages in the conduct constituting the offense shall be imprisoned for
not more than one year or fined in the amount set forth in this title, or both.
(2) Whoever willfully engages in the conduct constituting the offense shall be
imprisoned for not more than five years or fined in the amount set forth in this title, or
both.
(b) The Attorney General may bring a civil action in the appropriate United States district
court against any person who engages in conduct constituting an offense under section 203,
204, 205, 207, 208, or 209 of this title and, upon proof of such conduct by a preponderance
of the evidence, such person shall be subject to a civil penalty of not more than $50,000 4 for
each violation or the amount of compensation which the person received or offered for the
prohibited conduct, whichever amount is greater. The imposition of a civil penalty under this
subsection does not preclude any other criminal or civil statutory, common law, or
administrative remedy, which is available by law to the United States or any other person.
(c) If the Attorney General has reason to believe that a person is engaging in conduct
constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title, the
4
The maximum amount of this alternative dollar-specific portion of the civil monetary penalty provided for under this section was adjusted
from $50,000 to $55,000 in 1999 by the Department of Justice in an inflation adjustment rulemaking. See 28 C.F.R. § 85.3(c). The
maximum amounts of this and other civil monetary penalties identified by footnotes in this Compilation of Federal Ethics Laws are subject
to possible periodic further inflation adjustments by such rulemakings in the future.
24
Attorney General may petition an appropriate United States district court for an order
prohibiting that person from engaging in such conduct. The court may issue an order
prohibiting that person from engaging in such conduct if the court finds that the conduct
constitutes such an offense. The filing of a petition under this section does not preclude any
other remedy which is available by law to the United States or any other person.
18 U.S.C. § 218. Voiding transactions in violation of chapter; recovery by the United States
In addition to any other remedies provided by law the President or, under regulations
prescribed by him, the head of any department or agency involved, may declare void and
rescind any contract, loan, grant, subsidy, license, right, permit, franchise, use, authority,
privilege, benefit, certificate, ruling, decision, opinion, or rate schedule awarded, granted,
paid, furnished, or published, or the performance of any service or transfer or delivery of any
thing to, by or for any agency of the United States or officer or employee of the United States
or person acting on behalf thereof, in relation to which there has been a final conviction for
any violation of this chapter, and the United States shall be entitled to recover in addition to
any penalty prescribed by law or in a contract the amount expended or the thing transferred
or delivered on its behalf, or the reasonable value thereof.
18 U.S.C. § 219. Officers and employees acting as agents of foreign principals
(a) Whoever, being a public official, is or acts as an agent of a foreign principal required
to register under the Foreign Agents Registration Act of 1938 or a lobbyist required to
register under the Lobbying Disclosure Act of 1995 in connection with the representation of
a foreign entity, as defined in section 3(6) of that Act shall be fined under this title or
imprisoned for not more than two years, or both.
(b) Nothing in this section shall apply to the employment of any agent of a foreign
principal as a special Government employee in any case in which the head of the employing
agency certifies that such employment is required in the national interest. A copy of any
certification under this paragraph shall be forwarded by the head of such agency to the
Attorney General who shall cause the same to be filed with the registration statement and
other documents filed by such agent, and made available for public inspection in accordance
with section 6 of the Foreign Agents Registration Act of 1938, as amended.
(c) For the purpose of this section ''public official'' means Member of Congress, Delegate,
or Resident Commissioner, either before or after he has qualified, or an officer or employee
or person acting for or on behalf of the United States, or any department, agency, or branch
of Government thereof, including the District of Columbia, in any official function, under or
by authority of any such department, agency, or branch of Government.
II. ETHICS IN GOVERNMENT ACT OF 1978
A. Public Financial Disclosure Requirements
5 U.S.C. app. § 101. Persons required to file
(a) Within thirty days of assuming the position of an officer or employee described in
25
subsection (f), an individual shall file a report containing the information described in section
102(b) unless the individual has left another position described in subsection (f) within thirty
days prior to assuming such new position or has already filed a report under this title with
respect to nomination for the new position or as a candidate for the position.
(b)(1) Within five days of the transmittal by the President to the Senate of the nomination
of an individual (other than an individual nominated for appointment to a position as a
Foreign Service Officer or a grade or rank in the uniformed services for which the pay grade
prescribed by section 201 of title 37, United States Code, is O-6 or below) to a position,
appointment to which requires the advice and consent of the Senate, such individual shall file
a report containing the information described in section 102(b). Such individual shall, not
later than the date of the first hearing to consider the nomination of such individual, make
current the report filed pursuant to this paragraph by filing the information required by
section 102(a)(1)(A) with respect to income and honoraria received as of the date which
occurs five days before the date of such hearing. Nothing in this Act shall prevent any
Congressional committee from requesting, as a condition of confirmation, any additional
financial information from any Presidential nominee whose nomination has been referred to
that committee.
(2) An individual whom the President or the President-elect has publicly announced
he intends to nominate to a position may file the report required by paragraph (1) at any
time after that public announcement, but not later than is required under the first sentence
of such paragraph.
(c) Within thirty days of becoming a candidate as defined in section 301 of the Federal
Campaign Act of 1971, in a calendar year for nomination or election to the office of
President, Vice President, or Member of Congress, or on or before May 15 of that calendar
year, whichever is later, but in no event later than 30 days before the election, and on or
before May 15 of each successive year an individual continues to be a candidate, an
individual other than an incumbent President, Vice President, or Member of Congress shall
file a report containing the information described in section 102(b). Notwithstanding the
preceding sentence, in any calendar year in which an individual continues to be a candidate
for any office but all elections for such office relating to such candidacy were held in prior
calendar years, such individual need not file a report unless he becomes a candidate for
another vacancy in that office or another office during that year.
(d) Any individual who is an officer or employee described in subsection (f) during any
calendar year and performs the duties of his position or office for a period in excess of sixty
days in that calendar year shall file on or before May 15 of the succeeding year a report
containing the information described in section 102(a).
(e) Any individual who occupies a position described in subsection (f) shall, on or before
the thirtieth day after termination of employment in such position, file a report containing the
information described in section 102(a) covering the preceding calendar year if the report
required by subsection (d) has not been filed and covering the portion of the calendar year in
which such termination occurs up to the date the individual left such office or position, unless
such individual has accepted employment in another position described in subsection (f).
(f) The officers and employees referred to in subsections (a), (d), and (e) are—
26
(1) the President;
(2) the Vice President;
(3) each officer or employee in the executive branch, including a special Government
employee as defined in section 202 of title 18, United States Code, who occupies a
position classified above GS-15 of the General Schedule or, in the case of positions not
under the General Schedule, for which the rate of basic pay is equal to or greater than 120
percent of the minimum rate of basic pay payable for GS-15 of the General Schedule;
each member of a uniformed service whose pay grade is at or in excess of O-7 under
section 201 of title 37, United States Code; and each officer or employee in any other
position determined by the Director of the Office of Government Ethics to be of equal
classification;
(4) each employee appointed pursuant to section 3105 of title 5, United States Code;
(5) any employee not described in paragraph (3) who is in a position in the executive
branch which is excepted from the competitive service by reason of being of a
confidential or policymaking character, except that the Director of the Office of
Government Ethics may, by regulation, exclude from the application of this paragraph
any individual, or group of individuals, who are in such positions, but only in cases in
which the Director determines such exclusion would not affect adversely the integrity of
the Government or the public's confidence in the integrity of the Government;
(6) the Postmaster General, the Deputy Postmaster General, each Governor of the
Board of Governors of the United States Postal Service and each officer or employee of
the United States Postal Service or Postal Regulatory Commission who occupies a
position for which the rate of basic pay is equal to or greater than 120 percent of the
minimum rate of basic pay payable for GS-15 of the General Schedule;
(7) the Director of the Office of Government Ethics and each designated agency
ethics official;
(8) any civilian employee not described in paragraph (3), employed in the Executive
Office of the President (other than a special Government 5 employee) who holds a
commission of appointment from the President;
(9) a Member of Congress as defined under section 109(12);
(10) an officer or employee of the Congress as defined under section 109(13);
(11) a judicial officer as defined under section 109(10); and
(12) a judicial employee as defined under section 109(8).
(g)(1) Reasonable extensions of time for filing any report may be granted under
procedures prescribed by the supervising ethics office for each branch, but the total of such
extensions shall not exceed ninety days.
(2)(A) In the case of an individual who is serving in the Armed Forces, or serving in
support of the Armed Forces, in an area while that area is designated by the President by
Executive order as a combat zone for purposes of section 112 of the Internal Revenue
Code of 1986, the date for the filing of any report shall be extended so that the date is 180
5
So in original. Probably should be capitalized.
27
days after the later of—
(i) the last day of the individual's service in such area during such designated
period; or
(ii) the last day of the individual's hospitalization as a result of injury received
or disease contracted while serving in such area.
(B) The Office of Government Ethics, in consultation with the Secretary of
Defense, may prescribe procedures under this paragraph.
(h) The provisions of subsections (a), (b), and (e) shall not apply to an individual who, as
determined by the designated agency ethics official or Secretary concerned (or in the case of
a Presidential appointee under subsection (b), the Director of the Office of Government
Ethics), the congressional ethics committees, or the Judicial Conference, is not reasonably
expected to perform the duties of his office or position for more than sixty days in a calendar
year, except that if such individual performs the duties of his office or position for more than
sixty days in a calendar year—
(1) the report required by subsections (a) and (b) shall be filed within fifteen days of
the sixtieth day, and
(2) the report required by subsection (e) shall be filed as provided in such subsection.
(i) The supervising ethics office for each branch may grant a publicly available request
for a waiver of any reporting requirement under this section for an individual who is
expected to perform or has performed the duties of his office or position less than one
hundred and thirty days in a calendar year, but only if the supervising ethics office
determines that—
(1) such individual is not a full-time employee of the Government,
(2) such individual is able to provide services specially needed by the Government,
(3) it is unlikely that the individual's outside employment or financial interests will
create a conflict of interest, and
(4) public financial disclosure by such individual is not necessary in the
circumstances.
5 U.S.C. app. § 102. Contents of reports
(a) Each report filed pursuant to section 101(d) and (e) shall include a full and complete
statement with respect to the following:
(1)(A) The source, type, and amount or value of income (other than income referred
to in subparagraph (B)) from any source (other than from current employment by the
United States Government), and the source, date, and amount of honoraria from any
source, received during the preceding calendar year, aggregating $200 or more in value
and, effective January 1, 1991, the source, date, and amount of payments made to
charitable organizations in lieu of honoraria, and the reporting individual shall
simultaneously file with the applicable supervising ethics office, on a confidential basis, a
corresponding list of recipients of all such payments, together with the dates and amounts
of such payments.
(B) The source and type of income which consists of dividends, rents, interest,
and capital gains, received during the preceding calendar year which exceeds $200 in
28
amount or value, and an indication of which of the following categories the amount or
value of such item of income is within:
(i) not more than $1,000,
(ii) greater than $1,000 but not more than $2,500,
(iii) greater than $2,500 but not more than $5,000,
(iv) greater than $5,000 but not more than $15,000,
(v) greater than $15,000 but not more than $50,000,
(vi) greater than $50,000 but not more than $100,000,
(vii) greater than $100,000 but not more than $1,000,000,
(viii) greater than $1,000,000 but not more than $5,000,000, or
(ix) greater than $5,000,000.
(2)(A) The identity of the source, a brief description, and the value of all gifts
aggregating more than the minimal value as established by section 7342(a)(5) of title 5,
United States Code, or $250, whichever is greater, received from any source other than a
relative of the reporting individual during the preceding calendar year, except that any
food, lodging, or entertainment received as personal hospitality of an individual need not
be reported, and any gift with a fair market value of $100 or less, as adjusted at the same
time and by the same percentage as the minimal value is adjusted, need not be aggregated
for purposes of this subparagraph.
(B) The identity of the source and a brief description (including a travel itinerary,
dates, and nature of expenses provided) of reimbursements received from any source
aggregating more than the minimal value as established by section 7342(a)(5) of title
5, United States Code, or $250, whichever is greater and received during the
preceding calendar year.
(C) In an unusual case, a gift need not be aggregated under subparagraph (A) if a
publicly available request for a waiver is granted.
(3) The identity and category of value of any interest in property held during the
preceding calendar year in a trade or business, or for investment or the production of
income, which has a fair market value which exceeds $1,000 as of the close of the
preceding calendar year, excluding any personal liability owed to the reporting individual
by a spouse,, 6 or by a parent, brother, sister, or child of the reporting individual or of the
reporting individual's spouse, or any deposits aggregating $5,000 or less in a personal
savings account. For purposes of this paragraph, a personal savings account shall include
any certificate of deposit or any other form of deposit in a bank, savings and loan
association, credit union, or similar financial institution.
(4) The identity and category of value of the total liabilities owed to any creditor
other than a spouse, or a parent, brother, sister, or child of the reporting individual or of
the reporting individual's spouse which exceed $10,000 at any time during the preceding
calendar year, excluding—
(A) any mortgage secured by real property which is a personal residence of the
reporting individual or his spouse, except that this exception shall not apply to a
6
So in original.
29
reporting individual—
(i) described in paragraph (1), (2), or (9) of section 101(f);
(ii) described in section 101(b) who has been nominated for appointment as an
officer or employee in the executive branch described in subsection (f) of such
section, other than—
(I) an individual appointed to a position—
(aa) as a Foreign Service Officer below the rank of ambassador; or
(bb) in the uniformed services for which the pay grade prescribed by
section 201 of title 37, United States Code is O–6 or below; or
(II) a special Government employee, as defined under section 202 of title
18, United States Code; or
(iii) described in section 101(f) who is in a position in the executive branch
the appointment to which is made by the President and requires advice and
consent of the Senate, other than—
(I) an individual appointed to a position—
(aa) as a Foreign Service Officer below the rank of ambassador; or
(bb) in the uniformed services for which the pay grade prescribed by
section 201 of title 37, United States Code is O–6 or below; or
(II) a special Government employee, as defined under section 202 of title
18, United States Code; and
(B) any loan secured by a personal motor vehicle, household furniture, or
appliances, which loan does not exceed the purchase price of the item which secures
it.
With respect to revolving charge accounts, only those with an outstanding liability which
exceeds $10,000 as of the close of the preceding calendar year need be reported under
this paragraph.
(5) Except as provided in this paragraph, a brief description, the date, and category of
value of any purchase, sale or exchange during the preceding calendar year which
exceeds $1,000—
(A) in real property, other than property used solely as a personal residence of the
reporting individual or his spouse; or
(B) in stocks, bonds, commodities futures, and other forms of securities.
Reporting is not required under this paragraph of any transaction solely by and between
the reporting individual, his spouse, or dependent children.
(6)(A) The identity of all positions held on or before the date of filing during the
current calendar year (and, for the first report filed by an individual, during the two-year
period preceding such calendar year) as an officer, director, trustee, partner, proprietor,
representative, employee, or consultant of any corporation, company, firm, partnership,
or other business enterprise, any nonprofit organization, any labor organization, or any
educational or other institution other than the United States. This subparagraph shall not
require the reporting of positions held in any religious, social, fraternal, or political entity
and positions solely of an honorary nature.
(B) If any person, other than the United States Government, paid a nonelected
30
reporting individual compensation in excess of $5,000 in any of the two calendar
years prior to the calendar year during which the individual files his first report under
this title, the individual shall include in the report—
(i) the identity of each source of such compensation; and
(ii) a brief description of the nature of the duties performed or services
rendered by the reporting individual for each such source.
The preceding sentence shall not require any individual to include in such report any
information which is considered confidential as a result of a privileged relationship,
established by law, between such individual and any person nor shall it require an
individual to report any information with respect to any person for whom services were
provided by any firm or association of which such individual was a member, partner, or
employee unless such individual was directly involved in the provision of such services.
(7) A description of the date, parties to, and terms of any agreement or arrangement
with respect to (A) future employment; (B) a leave of absence during the period of the
reporting individual's Government service; (C) continuation of payments by a former
employer other than the United States Government; and (D) continuing participation in
an employee welfare or benefit plan maintained by a former employer.
(8) The category of the total cash value of any interest of the reporting individual in a
qualified blind trust, unless the trust instrument was executed prior to July 24, 1995 and
precludes the beneficiary from receiving information on the total cash value of any
interest in the qualified blind trust.
(b)(1) Each report filed pursuant to subsections (a), (b), and (c) of section 101 shall
include a full and complete statement with respect to the information required by—
(A) paragraph (1) of subsection (a) for the year of filing and the preceding
calendar year,
(B) paragraphs (3) and (4) of subsection (a) as of the date specified in the report
but which is less than thirty-one days before the filing date, and
(C) paragraphs (6) and (7) of subsection (a) as of the filing date but for periods
described in such paragraphs.
(2)(A) In lieu of filling out one or more schedules of a financial disclosure form, an
individual may supply the required information in an alternative format, pursuant to
either rules adopted by the supervising ethics office for the branch in which such
individual serves or pursuant to a specific written determination by such office for a
reporting individual.
(B) In lieu of indicating the category of amount or value of any item contained in
any report filed under this title, a reporting individual may indicate the exact dollar
amount of such item.
(c) In the case of any individual described in section 101(e), any reference to the
preceding calendar year shall be considered also to include that part of the calendar year of
filing up to the date of the termination of employment.
(d)(1) The categories for reporting the amount or value of the items covered in
paragraphs (3), (4), (5), and (8) of subsection (a) are as follows:
(A) not more than $15,000;
31
(B) greater than $15,000 but not more than $50,000;
(C) greater than $50,000 but not more than $100,000;
(D) greater than $100,000 but not more than $250,000;
(E) greater than $250,000 but not more than $500,000;
(F) greater than $500,000 but not more than $1,000,000;
(G) greater than $1,000,000 but not more than $5,000,000;
(H) greater than $5,000,000 but not more than $25,000,000;
(I) greater than $25,000,000 but not more than $50,000,000; and
(J) greater than $50,000,000.
(2) For the purposes of paragraph (3) of subsection (a) if the current value of an
interest in real property (or an interest in a real estate partnership) is not ascertainable
without an appraisal, an individual may list (A) the date of purchase and the purchase
price of the interest in the real property, or (B) the assessed value of the real property for
tax purposes, adjusted to reflect the market value of the property used for the assessment
if the assessed value is computed at less than 100 percent of such market value, but such
individual shall include in his report a full and complete description of the method used
to determine such assessed value, instead of specifying a category of value pursuant to
paragraph (1) of this subsection. If the current value of any other item required to be
reported under paragraph (3) of subsection (a) is not ascertainable without an appraisal,
such individual may list the book value of a corporation whose stock is not publicly
traded, the net worth of a business partnership, the equity value of an individually owned
business, or with respect to other holdings, any recognized indication of value, but such
individual shall include in his report a full and complete description of the method used
in determining such value. In lieu of any value referred to in the preceding sentence, an
individual may list the assessed value of the item for tax purposes, adjusted to reflect the
market value of the item used for the assessment if the assessed value is computed at less
than 100 percent of such market value, but a full and complete description of the method
used in determining such assessed value shall be included in the report.
(e)(1) Except as provided in the last sentence of this paragraph, each report required by
section 101 shall also contain information listed in paragraphs (1) through (5) of subsection
(a) of this section respecting the spouse or dependent child of the reporting individual as
follows:
(A) The source of items of earned income earned by a spouse from any person
which exceed $1,000 and the source and amount of any honoraria received by a
spouse, except that, with respect to earned income (other than honoraria), if the
spouse is self-employed in business or a profession, only the nature of such business
or profession need be reported.
(B) All information required to be reported in subsection (a)(1)(B) with respect to
income derived by a spouse or dependent child from any asset held by the spouse or
dependent child and reported pursuant to subsection (a)(3).
(C) In the case of any gifts received by a spouse or dependent child which are not
received totally independent of the relationship of the spouse or dependent child to
the reporting individual, the identity of the source and a brief description of gifts of
32
transportation, lodging, food, or entertainment and a brief description and the value of
other gifts.
(D) In the case of any reimbursements received by a spouse or dependent child
which are not received totally independent of the relationship of the spouse or
dependent child to the reporting individual, the identity of the source and a brief
description of each such reimbursement.
(E) In the case of items described in paragraphs (3) through (5) of subsection (a),
all information required to be reported under these paragraphs other than items (i)
which the reporting individual certifies represent the spouse's or dependent child's
sole financial interest or responsibility and which the reporting individual has no
knowledge of, (ii) which are not in any way, past or present, derived from the income,
assets, or activities of the reporting individual, and (iii) from which the reporting
individual neither derives, nor expects to derive, any financial or economic benefit.
(F) For purposes of this section, categories with amounts or values greater than
$1,000,000 set forth in sections 102(a)(1)(B) and 102(d)(1) shall apply to the income,
assets, or liabilities of spouses and dependent children only if the income, assets, or
liabilities are held jointly with the reporting individual. All other income, assets, or
liabilities of the spouse or dependent children required to be reported under this
section in an amount or value greater than $1,000,000 shall be categorized only as an
amount or value greater than $1,000,000.
Reports required by subsections (a), (b), and (c) of section 101 shall, with respect to the
spouse and dependent child of the reporting individual, only contain information listed in
paragraphs (1), (3), and (4) of subsection (a), as specified in this paragraph.
(2) No report shall be required with respect to a spouse living separate and apart from
the reporting individual with the intention of terminating the marriage or providing for
permanent separation; or with respect to any income or obligations of an individual
arising from the dissolution of his marriage or the permanent separation from his spouse.
(f)(1) Except as provided in paragraph (2), each reporting individual shall report the
information required to be reported pursuant to subsections (a), (b), and (c) of this section
with respect to the holdings of and the income from a trust or other financial arrangement
from which income is received by, or with respect to which a beneficial interest in principal
or income is held by, such individual, his spouse, or any dependent child.
(2) A reporting individual need not report the holdings of or the source of income
from any of the holdings of—
(A) any qualified blind trust (as defined in paragraph (3));
(B) a trust—
(i) which was not created directly by such individual, his spouse, or any
dependent child, and
(ii) the holdings or sources of income of which such individual, his spouse,
and any dependent child have no knowledge of; or
(C) an entity described under the provisions of paragraph (8),
but such individual shall report the category of the amount of income received by him,
his spouse, or any dependent child from the trust or other entity under subsection
33
(a)(1)(B) of this section.
(3) For purposes of this subsection, the term ''qualified blind trust'' includes any trust
in which a reporting individual, his spouse, or any minor or dependent child has a
beneficial interest in the principal or income, and which meets the following
requirements:
(A)(i) The trustee of the trust and any other entity designated in the trust
instrument to perform fiduciary duties is a financial institution, an attorney, a certified
public accountant, a broker, or an investment advisor who—
(I) is independent of and not associated with any interested party so that
the trustee or other person cannot be controlled or influenced in the
administration of the trust by any interested party; and
(II) is not and has not been an employee of or affiliated with any interested
party and is not a partner of, or involved in any joint venture or other
investment with, any interested party; and
(III) is not a relative of any interested party.
(ii) Any officer or employee of a trustee or other entity who is involved in the
management or control of the trust—
(I) is independent of and not associated with any interested party so that
such officer or employee cannot be controlled or influenced in the
administration of the trust by any interested party;
(II) is not a partner of, or involved in any joint venture or other investment
with, any interested party; and
(III) is not a relative of any interested party.
(B) Any asset transferred to the trust by an interested party is free of any
restriction with respect to its transfer or sale unless such restriction is expressly
approved by the supervising ethics office of the reporting individual.
(C) The trust instrument which establishes the trust provides that—
(i) except to the extent provided in subparagraph (B) of this paragraph, the
trustee in the exercise of his authority and discretion to manage and control the
assets of the trust shall not consult or notify any interested party;
(ii) the trust shall not contain any asset the holding of which by an interested
party is prohibited by any law or regulation;
(iii) the trustee shall promptly notify the reporting individual and his
supervising ethics office when the holdings of any particular asset transferred to
the trust by any interested party are disposed of or when the value of such holding
is less than $1,000;
(iv) the trust tax return shall be prepared by the trustee or his designee, and
such return and any information relating thereto (other than the trust income
summarized in appropriate categories necessary to complete an interested party's
tax return), shall not be disclosed to any interested party;
(v) an interested party shall not receive any report on the holdings and sources
of income of the trust, except a report at the end of each calendar quarter with
respect to the total cash value of the interest of the interested party in the trust or
34
the net income or loss of the trust or any reports necessary to enable the interested
party to complete an individual tax return required by law or to provide the
information required by subsection (a)(1) of this section, but such report shall not
identify any asset or holding;
(vi) except for communications which solely consist of requests for
distributions of cash or other unspecified assets of the trust, there shall be no
direct or indirect communication between the trustee and an interested party with
respect to the trust unless such communication is in writing and unless it relates
only (I) to the general financial interest and needs of the interested party
(including, but not limited to, an interest in maximizing income or long-term
capital gain), (II) to the notification of the trustee of a law or regulation
subsequently applicable to the reporting individual which prohibits the interested
party from holding an asset, which notification directs that the asset not be held
by the trust, or (III) to directions to the trustee to sell all of an asset initially placed
in the trust by an interested party which in the determination of the reporting
individual creates a conflict of interest or the appearance thereof due to the
subsequent assumption of duties by the reporting individual (but nothing herein
shall require any such direction); and
(vii) the interested parties shall make no effort to obtain information with
respect to the holdings of the trust, including obtaining a copy of any trust tax
return filed or any information relating thereto except as otherwise provided in
this subsection.
(D) The proposed trust instrument and the proposed trustee is approved by the
reporting individual's supervising ethics office.
(E) For purposes of this subsection, ''interested party'' means a reporting
individual, his spouse, and any minor or dependent child; ''broker'' has the meaning
set forth in section 3(a)(4) of the Securities and Exchange Act of 1934 (15 U.S.C.
78c(a)(4)); and ''investment adviser'' includes any investment adviser who, as
determined under regulations prescribed by the supervising ethics office, is generally
involved in his role as such an adviser in the management or control of trusts.
(F) Any trust qualified by a supervising ethics office before the effective date of
title II of the Ethics Reform Act of 1989 shall continue to be governed by the law and
regulations in effect immediately before such effective date.
(4)(A) An asset placed in a trust by an interested party shall be considered a financial
interest of the reporting individual, for the purposes of any applicable conflict of interest
statutes, regulations, or rules of the Federal Government (including section 208 of title 18,
United States Code), until such time as the reporting individual is notified by the trustee that
such asset has been disposed of, or has a value of less than $1,000.
(B)(i) The provisions of subparagraph (A) shall not apply with respect to a trust
created for the benefit of a reporting individual, or the spouse, dependent child, or
minor child of such a person, if the supervising ethics office for such reporting
individual finds that—
35
(I) the assets placed in the trust consist of a well-diversified portfolio of
readily marketable securities;
(II) none of the assets consist of securities of entities having substantial
activities in the area of the reporting individual's primary area of
responsibility;
(III) the trust instrument prohibits the trustee, notwithstanding the
provisions of paragraphs (3)(C)(iii) and (iv) of this subsection, from making
public or informing any interested party of the sale of any securities;
(IV) the trustee is given power of attorney, notwithstanding the provisions
of paragraph (3)(C)(v) of this subsection, to prepare on behalf of any
interested party the personal income tax returns and similar returns which may
contain information relating to the trust; and
(V) except as otherwise provided in this paragraph, the trust instrument
provides (or in the case of a trust established prior to the effective date of this
Act which by its terms does not permit amendment, the trustee, the reporting
individual, and any other interested party agree in writing) that the trust shall
be administered in accordance with the requirements of this subsection and
the trustee of such trust meets the requirements of paragraph (3)(A).
(ii) In any instance covered by subparagraph (B) in which the reporting
individual is an individual whose nomination is being considered by a
congressional committee, the reporting individual shall inform the congressional
committee considering his nomination before or during the period of such
individual's confirmation hearing of his intention to comply with this paragraph.
(5)(A) The reporting individual shall, within thirty days after a qualified blind trust is
approved by his supervising ethics office, file with such office a copy of—
(i) the executed trust instrument of such trust (other than those provisions
which relate to the testamentary disposition of the trust assets), and
(ii) a list of the assets which were transferred to such trust, including the
category of value of each asset as determined under subsection (d) of this section.
This subparagraph shall not apply with respect to a trust meeting the requirements for being
considered a qualified blind trust under paragraph (7) of this subsection.
(B) The reporting individual shall, within thirty days of transferring an asset
(other than cash) to a previously established qualified blind trust, notify his
supervising ethics office of the identity of each such asset and the category of value
of each asset as determined under subsection (d) of this section.
(C) Within thirty days of the dissolution of a qualified blind trust, a reporting
individual shall—
(i) notify his supervising ethics office of such dissolution, and
(ii) file with such office a copy of a list of the assets of the trust at the time of
such dissolution and the category of value under subsection (d) of this section of
each such asset.
(D) Documents filed under subparagraphs (A), (B), and (C) of this paragraph and
the lists provided by the trustee of assets placed in the trust by an interested party
36
which have been sold shall be made available to the public in the same manner as a
report is made available under section 105 and the provisions of that section shall
apply with respect to such documents and lists.
(E) A copy of each written communication with respect to the trust under
paragraph (3)(C)(vi) shall be filed by the person initiating the communication with
the reporting individual's supervising ethics office within five days of the date of the
communication.
(6)(A) A trustee of a qualified blind trust shall not knowingly and willfully, or
negligently, (i) disclose any information to an interested party with respect to such trust
that may not be disclosed under paragraph (3) of this subsection; (ii) acquire any holding
the ownership of which is prohibited by the trust instrument; (iii) solicit advice from any
interested party with respect to such trust, which solicitation is prohibited by paragraph
(3) of this subsection or the trust agreement; or (iv) fail to file any document required by
this subsection.
(B) A reporting individual shall not knowingly and willfully, or negligently, (i)
solicit or receive any information with respect to a qualified blind trust of which he is
an interested party that may not be disclosed under paragraph (3)(C) of this
subsection or (ii) fail to file any document required by this subsection.
(C)(i) The Attorney General may bring a civil action in any appropriate United
States district court against any individual who knowingly and willfully violates the
provisions of subparagraph (A) or (B) of this paragraph. The court in which such
action is brought may assess against such individual a civil penalty in any amount not
to exceed $10,000. 7
(ii) The Attorney General may bring a civil action in any appropriate United
States district court against any individual who negligently violates the provisions
of subparagraph (A) or (B) of this paragraph. The court in which such action is
brought may assess against such individual a civil penalty in any amount not to
exceed $5,000. 8
(7) Any trust may be considered to be a qualified blind trust if—
(A) the trust instrument is amended to comply with the requirements of paragraph
(3) or, in the case of a trust instrument which does not by its terms permit
amendment, the trustee, the reporting individual, and any other interested party agree
in writing that the trust shall be administered in accordance with the requirements of
this subsection and the trustee of such trust meets the requirements of paragraph
(3)(A); except that in the case of any interested party who is a dependent child, a
7
The maximum amount of this civil monetary penalty was adjusted from $10,000 to $11,000 in 1999 by the Department of Justice in an
inflation adjustment rulemaking, and as reflected in a coordinated adjustment rulemaking issued at the same time by the Office of
Government Ethics (OGE). See 28 C.F.R. § 85.3(a)(1) and 5 C.F.R. § 2634.702(a). As noted in footnote two on p. 24 above, the maximum
amounts of this and other civil monetary penalties identified by footnotes in this Federal Ethics Laws Compilation are subject to such
possible future periodic rulemaking inflation adjustments.
8
The maximum amount of this civil monetary penalty was adjusted from $5,000 to $5,500 in 1999 by a Justice Department inflation
adjustment rulemaking, and as reflected in a coordinated OGE adjustment rulemaking; it can be further adjusted periodically in future such
rulemakings. See 28 C.F.R. § 85.3(a)(2) and 5 C.F.R. § 2634.702(b).
37
parent or guardian of such child may execute the agreement referred to in this
subparagraph;
(B) a copy of the trust instrument (except testamentary provisions) and a copy of
the agreement referred to in subparagraph (A), and a list of the assets held by the trust
at the time of approval by the supervising ethics office, including the category of
value of each asset as determined under subsection (d) of this section, are filed with
such office and made available to the public as provided under paragraph (5)(D) of
this subsection; and
(C) the supervising ethics office determines that approval of the trust arrangement
as a qualified blind trust is in the particular case appropriate to assure compliance
with applicable laws and regulations.
(8) A reporting individual shall not be required to report the financial interests held by
a widely held investment fund (whether such fund is a mutual fund, regulated investment
company, pension or deferred compensation plan, or other investment fund), if—
(A)(i) the fund is publicly traded; or
(ii) the assets of the fund are widely diversified; and
(B) the reporting individual neither exercises control over nor has the ability to
exercise control over the financial interests held by the fund.
(g) Political campaign funds, including campaign receipts and expenditures, need not be
included in any report filed pursuant to this title.
(h) A report filed pursuant to subsection (a), (d), or (e) of section 101 need not contain
the information described in subparagraphs (A), (B), and (C) of subsection (a)(2) with
respect to gifts and reimbursements received in a period when the reporting individual was
not an officer or employee of the Federal Government.
(i) A reporting individual shall not be required under this title to report—
(1) financial interests in or income derived from—
(A) any retirement system under title 5, United States Code (including the Thrift
Savings Plan under subchapter III of chapter 84 of such title); or
(B) any other retirement system maintained by the United States for officers or
employees of the United States, including the President, or for members of the
uniformed services; or
(2) benefits received under the Social Security Act (42 U.S.C. 301 et seq.).
5 U.S.C. app. § 103. Filing of reports
(a) Except as otherwise provided in this section, the reports required under this title shall
be filed by the reporting individual with the designated agency ethics official at the agency
by which he is employed (or in the case of an individual described in section 101(e), was
employed) or in which he will serve. The date any report is received (and the date of receipt
of any supplemental report) shall be noted on such report by such official.
(b) The President, the Vice President, and independent counsel and persons appointed by
independent counsel under chapter 40 of title 28, United States Code, shall file reports
required under this title with the Director of the Office of Government Ethics.
38
(c) Copies of the reports required to be filed under this title by the Postmaster General,
the Deputy Postmaster General, the Governors of the Board of Governors of the United
States Postal Service, designated agency ethics officials, employees described in section
105(a)(2)(A) or (B), 106(a)(1)(A) or (B), or 107(a)(1)(A) or (b)(1)(A)(i), of title 3, United
States Code, candidates for the office of President or Vice President and officers and
employees in (and nominees to) offices or positions which require confirmation by the
Senate or by both Houses of Congress other than individuals nominated to be judicial officers
and those referred to in subsection (f) shall be transmitted to the Director of the Office of
Government Ethics. The Director shall forward a copy of the report of each nominee to the
congressional committee considering the nomination.
(d) Reports required to be filed under this title by the Director of the Office of
Government Ethics shall be filed in the Office of Government Ethics and, immediately after
being filed, shall be made available to the public in accordance with this title.
(e) Each individual identified in section 101(c) who is a candidate for nomination or
election to the Office of President or Vice President shall file the reports required by this title
with the Federal Election Commission.
(f) Reports required of members of the uniformed services shall be filed with the
Secretary concerned.
(g) Each supervising ethics office shall develop and make available forms for reporting
the information required by this title.
(h)(1) The reports required under this title shall be filed by a reporting individual with—
(A)(i)(I) the Clerk of the House of Representatives, in the case of a Representative
in Congress, a Delegate to Congress, the Resident Commissioner from Puerto Rico,
an officer or employee of the Congress whose compensation is disbursed by the Chief
Administrative Officer of the House of Representatives, an officer or employee of the
Architect of the Capitol, United States Capitol Police, the United States Botanic
Garden, the Congressional Budget Office, the Government Printing Office, 9 the
Library of Congress, or the Copyright Royalty Tribunal (including any individual
terminating service, under section 101(e), in any office or position referred to in this
subclause), or an individual described in section 101(c) who is a candidate for
nomination or election as a Representative in Congress, a Delegate to Congress, or
the Resident Commissioner from Puerto Rico; and
(II) the Secretary of the Senate, in the case of a Senator, an officer or
employee of the Congress whose compensation is disbursed by the Secretary
of the Senate, an officer or employee of the Government Accountability
Office, the Office of Technology Assessment, or the Office of the Attending
Physician (including any individual terminating service, under section 101(e),
in any office or position referred to in this subclause), or an individual
described in section 101(c) who is a candidate for nomination or election as a
Senator; and
9
The Government Printing Office has been redesignated the Government Publishing Office. Consolidated and Further Continuing Appropriations
Act, 2015, Pub. L. 113-235 § 1301, 128 Stat. 2130 (2014).
39
(ii) in the case of an officer or employee of the Congress as described under
section 101(f)(10) who is employed by an agency or commission established in
the legislative branch after the date of the enactment of the Ethics Reform Act of
1989—
(I) the Secretary of the Senate or the Clerk of the House of
Representatives, as the case may be, as designated in the statute establishing
such agency or commission; or
(II) if such statute does not designate such committee, the Secretary of the
Senate for agencies and commissions established in even numbered calendar
years, and the Clerk of the House of Representatives for agencies and
commissions established in odd numbered calendar years; and
(B) the Judicial Conference with regard to a judicial officer or employee
described under paragraphs (11) and (12) of section 101(f) (including individuals
terminating service in such office or position under section 101(e) or immediately
preceding service in such office or position).
(2) The date any report is received (and the date of receipt of any supplemental
report) shall be noted on such report by such committee.
(i)(1) A copy of each report filed under this title by a Member or an individual who is a
candidate for the office of Member shall be sent by the Clerk of the House of Representatives
or Secretary of the Senate, as the case may be, to the appropriate State officer designated
under section 316(a) of the Federal Election Campaign Act of 1971 of the State represented
by the Member or in which the individual is a candidate, as the case may be, within the 30day period beginning on the day the report is filed with the Clerk or Secretary.
(2) The requirements of paragraph (1) do not apply to any report filed under this title
which is filed electronically and for which there is online public access, in accordance
with the systems developed by the Secretary and Sergeant at Arms of the Senate and the
Clerk of the House of Representatives under section 8(b) of the Stop Trading on
Congressional Knowledge Act of 2012.
(j)(1) A copy of each report filed under this title with the Clerk of the House of
Representatives shall be sent by the Clerk to the Committee on Standards of Official Conduct
of the House of Representatives within the 7-day period beginning on the day the report is
filed.
(2) A copy of each report filed under this title with the Secretary of the Senate shall
be sent by the Secretary to the Select Committee on Ethics of the Senate within the 7-day
period beginning on the day the report is filed.
(k) In carrying out their responsibilities under this title with respect to candidates for
office, the Clerk of the House of Representatives and the Secretary of the Senate shall avail
themselves of the assistance of the Federal Election Commission. The Commission shall
make available to the Clerk and the Secretary on a regular basis a complete list of names and
addresses of all candidates registered with the Commission, and shall cooperate and
coordinate its candidate information and notification program with the Clerk and the
Secretary to the greatest extent possible.
40
(l) Not later than 30 days after receiving notification of any transaction required to be
reported under section 102(a)(5)(B), but in no case later than 45 days after such transaction,
the following persons, if required to file a report under any subsection of section 101, subject
to any waivers and exclusions, shall file a report of the transaction: 10
(1) The President.
(2) The Vice President.
(3) Each officer or employee in the executive branch, including a special Government
employee as defined in section 202 of title 18, United States Code, who occupies a
position classified above GS–15 of the General Schedule or, in the case of positions not
under the General Schedule, for which the rate of basic pay is equal to or greater than 120
percent of the minimum rate of basic pay payable for GS–15 of the General Schedule;
each member of a uniformed service whose pay grade is at or in excess of O–7 under
section 201 of title 37, United States Code; and each officer or employee in any other
position determined by the Director of the Office of Government Ethics to be of equal
classification.
(4) Each employee appointed pursuant to section 3105 of title 5, United States Code.
(5) Any employee not described in paragraph (3) who is in a position in the executive
branch which is excepted from the competitive service by reason of being of a
confidential or policymaking character, except that the Director of the Office of
Government Ethics may, by regulation, exclude from the application of this paragraph
any individual, or group of individuals, who are in such positions, but only in cases in
which the Director determines such exclusion would not affect adversely the integrity of
the Government or the public’s confidence in the integrity of the Government.
(6) The Postmaster General, the Deputy Postmaster General, each Governor of the
Board of Governors of the United States Postal Service and each officer or employee of
the United States Postal Service or Postal Regulatory Commission who occupies a
position for which the rate of basic pay is equal to or greater than 120 percent of the
minimum rate of basic pay payable for GS–15 of the General Schedule.
(7) The Director of the Office of Government Ethics and each designated agency
ethics official.
(8) Any civilian employee not described in paragraph (3), employed in the Executive
Office of the President (other than a special Government employee) who holds a
commission of appointment from the President.
(9) A Member of Congress, as defined under section 109(12).
(10) An officer or employee of the Congress, as defined under section 109(13). 11
10
The transaction reporting requirements in this section “shall not be construed to apply to a widely held investment fund (whether such
fund is a mutual fund, regulated investment company, pension or deferred compensation plan, or other investment fund), if—(1)(A) the
fund is publicly traded; or (B) the assets of the fund are widely diversified; and (2) the reporting individual neither exercises control over
nor has the ability to exercise control over the financial interests held by the fund.” STOCK Act, Pub. L. 112-105 § 14, 126 Stat. 291
(2012).
11
For purposes of implementing subsection (l) of section 103 of the Ethics in Government Act of 1978 (as added by section 6 of the
STOCK Act, Public Law 112-105), section 102(e) of such Act (5 U.S.C. App. 102(e)) shall apply as if the report under such subsection (l)
were a report under section 101 of such Act (5 U.S.C. App. 101) but only with respect to the transaction information required under such
subsection (1). See Act of Aug. 16, 2012, Pub. L. 112-173 § 2, 126 Stat. 1310 (2012); Act of Sept. 28, 2012, Pub. L. 112-178 § 3(a), 126
41
5 U.S.C. app. § 104. Failure to file or filing false reports
(a)(1) The Attorney General may bring a civil action in any appropriate United States
district court against any individual who knowingly and willfully falsifies or who knowingly
and willfully fails to file or report any information that such individual is required to report
pursuant to section 102. The court in which such action is brought may assess against such
individual a civil penalty in any amount, not to exceed $50,000. 12
(2)(A) It shall be unlawful for any person to knowingly and willfully—
(i) falsify any information that such person is required to report under section
102; and
(ii) fail to file or report any information that such person is required to report
under section 102.
(B) Any person who—
(i) violates subparagraph (A)(i) shall be fined under title 18, United States
Code, imprisoned for not more than 1 year, or both; and
(ii) violates subparagraph (A)(ii) shall be fined under title 18, United States
Code.
(b) The head of each agency, each Secretary concerned, the Director of the Office of
Government Ethics, each congressional ethics committee, or the Judicial Conference, as the
case may be, shall refer to the Attorney General the name of any individual which such
official or committee has reasonable cause to believe has willfully failed to file a report or
has willfully falsified or willfully failed to file information required to be reported.
Whenever the Judicial Conference refers a name to the Attorney General under this
subsection, the Judicial Conference also shall notify the judicial council of the circuit in
which the named individual serves of the referral.
(c) The President, the Vice President, the Secretary concerned, the head of each agency,
the Office of Personnel Management, a congressional ethics committee, and the Judicial
Conference, may take any appropriate personnel or other action in accordance with
applicable law or regulation against any individual failing to file a report or falsifying or
failing to report information required to be reported.
(d)(1) Any individual who files a report required to be filed under this title more than 30
days after the later of—
(A) the date such report is required to be filed pursuant to the provisions of this
title and the rules and regulations promulgated thereunder; or
(B) if a filing extension is granted to such individual under section 101(g), the last
day of the filing extension period,
shall, at the direction of and pursuant to regulations issued by the supervising ethics office,
pay a filing fee of $200. All such fees shall be deposited in the miscellaneous receipts of the
Stat. 1408 (2012).
12
The maximum amount of this civil monetary penalty was changed by law in 2007 to $50,000, superseding the prior inflation adjustment
from $10,000 to $11,000 in a 1999 inflation adjustment rulemaking of the Justice Department, and as reflected in a coordinated OGE
adjustment rulemaking. Four years after this statutory adjustment, this penalty can be further adjusted periodically in future such
rulemakings.
42
Treasury. The authority under this paragraph to direct the payment of a filing fee may be
delegated by the supervising ethics office in the executive branch to other agencies in the
executive branch.. 13
(2) The supervising ethics office may waive the filing fee under this subsection in
extraordinary circumstances.
5 U.S.C. app. § 105. Custody of and public access to reports
(a) Each agency, each supervising ethics office in the executive or judicial branch, the
Clerk of the House of Representatives, and the Secretary of the Senate shall make available
to the public, in accordance with subsection (b), each report filed under this title with such
agency or office or with the Clerk or the Secretary of the Senate, except that—
(1) this section does not require public availability of a report filed by any individual
in the Office of the Director of National Intelligence, the Central Intelligence Agency, the
Defense Intelligence Agency, the National Geospatial-Intelligence Agency, or the
National Security Agency, or any individual engaged in intelligence activities in any
agency of the United States, if the President finds or has found that, due to the nature of
the office or position occupied by such individual, public disclosure of such report would,
be 14 revealing the identity of the individual or other sensitive information, compromise
the national interest of the United States; and such individuals may be authorized,
notwithstanding section 104(a), to file such additional reports as are necessary to protect
their identity from public disclosure if the President first finds or has found that such
filing is necessary in the national interest; and
(2) any report filed by an independent counsel whose identity has not been disclosed
by the division of the court under chapter 40 of title 28, United States Code, and any
report filed by any person appointed by that independent counsel under such chapter,
shall not be made available to the public under this title.
(b)(1) Except as provided in the second sentence of this subsection, each agency, each
supervising ethics office in the executive or judicial branch, the Clerk of the House of
Representatives, and the Secretary of the Senate shall, within thirty days after any report is
received under this title by such agency or office or by the Clerk or the Secretary of the
Senate, as the case may be,, 15 permit inspection of such report by or furnish a copy of such
report to any person requesting such inspection or copy. With respect to any report required
to be filed by May 15 of any year, such report shall be made available for public inspection
within 30 calendar days after May 15 of such year or within 30 days of the date of filing of
such a report for which an extension is granted pursuant to section 101(g). The agency,
office, Clerk, or Secretary of the Senate, as the case may be 16 may require a reasonable fee to
13
So in original.
14
So in original. Probably should be ''by''.
15
So in original.
16
So in original. Probably should be followed by a comma.
43
be paid in any amount which is found necessary to recover the cost of reproduction or
mailing of such report excluding any salary of any employee involved in such reproduction
or mailing. A copy of such report may be furnished without charge or at a reduced charge if
it is determined that waiver or reduction of the fee is in the public interest.
(2) Notwithstanding paragraph (1), a report may not be made available under this
section to any person nor may any copy thereof be provided under this section to any
person except upon a written application by such person stating—
(A) that person's name, occupation and address;
(B) the name and address of any other person or organization on whose behalf the
inspection or copy is requested; and
(C) that such person is aware of the prohibitions on the obtaining or use of the
report.
Any such application shall be made available to the public throughout the period during
which the report is made available to the public.
(3)(A) This section does not require the immediate and unconditional availability of
reports filed by an individual described in section 109(8) or 109(10) of this Act if a
finding is made by the Judicial Conference, in consultation with United States Marshals
Service, that revealing personal and sensitive information could endanger that individual
or a family member of that individual.
(B) A report may be redacted pursuant to this paragraph only—
(i) to the extent necessary to protect the individual who filed the report or a
family member of that individual; and
(ii) for as long as the danger to such individual exists.
(C) The Administrative Office of the United States Courts shall submit to the
Committees on the Judiciary of the House of Representatives and of the Senate and
the Senate Committee on Homeland Security and Governmental Affairs and the
House Committee on Oversight and Government Reform an annual report with
respect to the operation of this paragraph including—
(i) the total number of reports redacted pursuant to this paragraph;
(ii) the total number of individuals whose reports have been redacted pursuant
to this paragraph;
(iii) the types of threats against individuals whose reports are redacted, if
appropriate;
(iv) the nature or type of information redacted;
(v) what steps or procedures are in place to ensure that sufficient information
is available to litigants to determine if there is a conflict of interest;
(vi) principles used to guide implementation of redaction authority; and
(vii) any public complaints received relating to redaction.
(D) The Judicial Conference, in consultation with the Department of Justice, shall
issue regulations setting forth the circumstances under which redaction is appropriate
under this paragraph and the procedures for redaction.
(E) This paragraph shall expire on December 31, 2017, and apply to filings
through calendar year 2017.
44
(c)(1) It shall be unlawful for any person to obtain or use a report—
(A) for any unlawful purpose;
(B) for any commercial purpose, other than by news and communications media
for dissemination to the general public;
(C) for determining or establishing the credit rating of any individual; or
(D) for use, directly or indirectly, in the solicitation of money for any political,
charitable, or other purpose.
(2) The Attorney General may bring a civil action against any person who obtains or
uses a report for any purpose prohibited in paragraph (1) of this subsection. The court in
which such action is brought may assess against such person a penalty in any amount not
to exceed $10,000. 17 Such remedy shall be in addition to any other remedy available
under statutory or common law.
(d)(1) Any report filed with or transmitted to an agency or supervising ethics office or to
the Clerk of the House of Representatives or the Secretary of the Senate pursuant to this title
shall be retained by such agency or office or by the Clerk of the House of Representatives or
the Secretary of the Senate, as the case may be.
(2) Such report shall be made available to the public—
(A) in the case of a Member of Congress until a date that is 6 years from the date
the individual ceases to be a Member of Congress; and
(B) in the case of all other reports filed pursuant to this title, for a period of 6
years after receipt of the report.
(3) After the relevant time period identified under paragraph (2), the report shall be
destroyed unless needed in an ongoing investigation, except that in the case of an individual
who filed the report pursuant to section 101(b) and was not subsequently confirmed by the
Senate, or who filed the report pursuant to section 101(c) and was not subsequently elected,
such reports shall be destroyed 1 year after the individual either is no longer under
consideration by the Senate or is no longer a candidate for nomination or election to the
Office of President, Vice President, or as a Member of Congress, unless needed in an
ongoing investigation or inquiry.
17
The maximum amount of this civil monetary penalty was adjusted from $10,000 to $11,000 in 1999 by an inflation adjustment
rulemaking of the Justice Department, and as reflected in a coordinated OGE adjustment rulemaking; it can be further adjusted periodically
in future such rulemakings. See 28 C.F.R. § 85.3(a)(4) and 5 C.F.R. § 2634.703.
45
Pub. L. 112-105 §§ 8(a)-(b) (STOCK Act). Public filing and disclosure of financial
disclosure forms of Members of Congress and congressional staff
(a) PUBLIC, ONLINE DISCLOSURE OF FINANCIAL DISCLOSURE FORMS OF MEMBERS OF
CONGRESS AND CONGRESSIONAL STAFF. 18—
(1) IN GENERAL.—Not later than September 30, 2012, or 90 days after the date of
enactment of this Act, whichever is later, the Secretary of the Senate and the Sergeant at
Arms of the Senate, and the Clerk of the House of Representatives, shall ensure that
financial disclosure forms filed by Members of Congress, candidates for Congress, and
employees of Congress in calendar year 2012 and in subsequent years pursuant to title I
of the Ethics in Government Act of 1978 are made available to the public on the
respective official websites of the Senate and the House of Representatives not later than
30 days after such forms are filed.
(2) EXTENSIONS.—Notices of extension for financial disclosure shall be made
available electronically under this subsection along with its related disclosure.
(3) REPORTING TRANSACTIONS.—In the case of a transaction disclosure required by
section 103(l) of the Ethics in Government Act of 1978, as added by this Act, such
disclosure shall be filed not later than the date required by that section. Notices of
extension for transaction disclosure shall be made available electronically under this
subsection along with its related disclosure.
(4) EXPIRATION.—The requirements of this subsection shall expire upon
implementation of the public disclosure system established under subsection (b).
(b) ELECTRONIC FILING AND ONLINE PUBLIC AVAILABILITY OF FINANCIAL DISCLOSURE
FORMS OF MEMBERS OF CONGRESS.—
(1) IN GENERAL.—Subject to paragraph (6) and not later than January 1, 2014, the
Secretary of the Senate and the Sergeant at Arms of the Senate and the Clerk of the
House of Representatives shall develop systems to enable—
(A) electronic filing of reports received by them pursuant to section 103(h)(1)(A)
of title I of the Ethics in Government Act of 1978; and
(B) public access to—
(i) financial disclosure reports filed by Members of Congress and candidates
for Congress,
(ii) reports filed by Members of Congress and candidates for Congress of a
transaction disclosure required by section 103(l) of the Ethics in Government Act
of 1978, and
(iii) notices of extensions, amendments, and blind trusts, with respect to
financial disclosure reports described in clauses (i) and (ii),
pursuant to title I of the Ethics in Government Act of 1978 (5 U.S.C. App. 101 et
seq.), through databases that are maintained on the official websites of the House of
Representatives and the Senate;
18
Except with respect to financial disclosure forms filed by any Member of Congress or any candidate for Congress, section 8(a) shall not
be effective. See Act of Apr. 15, 2013, Pub. L. 112-7 § 1, 127 Stat. 438 (2013).
46
(2) LOGIN.—For purposes of filings under paragraph (1)(B), section 105(b)(2) of the
Ethics in Government Act of 1978 does not apply.
(3) PUBLIC AVAILABILITY.—Pursuant to section 105(b)(1) of the Ethics in
Government Act of 1978, electronic availability on the official websites of the Senate and
the House of Representatives under paragraph (1)(B) shall be deemed to have met the
public availability requirement.
(4) FILERS COVERED.—Individuals required under the Ethics in Government Act of
1978 or the Senate Rules to file financial disclosure reports with the Secretary of the
Senate or the Clerk of the House of Representatives shall be able to file reports
electronically using the systems developed by the Secretary of the Senate, the Sergeant at
Arms of the Senate, and the Clerk of the House of Representatives.
(5) EXTENSIONS.—Notices of extension for financial disclosure shall be made
available electronically under paragraph (1)(B) along with its related disclosure.
(6) ADDITIONAL TIME.—The requirements of this subsection may be implemented
after the date provided in paragraph (1) if the Secretary of the Senate or the Clerk of the
House of Representatives identifies in writing to relevant congressional committees the
additional time needed for such implementation.
Pub. L. 112-105 § 11 (STOCK Act). Executive branch reporting
(a) EXECUTIVE BRANCH REPORTING. 19—
(1) IN GENERAL.—Not later than September 30, 2015, or 90 days after the date of
enactment of this Act, whichever is later, the President shall ensure that financial
disclosure forms filed pursuant to title I of the Ethics in Government Act of 1978 (5
U.S.C. App. 101 et seq.), in calendar year 2012 and in subsequent years, by executive
branch employees specified in section 101 of that Act are made available to the public on
the official websites of the respective executive branch agencies not later than 30 days
after such forms are filed.
(2) EXTENSIONS.—Notices of extension for financial disclosure shall be made
available electronically along with the related disclosure.
(3) REPORTING TRANSACTIONS.—In the case of a transaction disclosure required by
section 103(l) of the Ethics in Government Act of 1978, as added by this Act, such
disclosure shall be filed not later than the date required by that section. Notices of
extension for transaction disclosure shall be made available electronically under this
subsection along with its related disclosure.
(4) EXPIRATION.—The requirements of this subsection shall expire upon
implementation of the public disclosure system established under subsection (b).
(b) ELECTRONIC FILING AND ONLINE PUBLIC AVAILABILITY OF FINANCIAL DISCLOSURE
FORMS OF CERTAIN EXECUTIVE BRANCH OFFICIALS.—
19
Except with respect to financial disclosure forms filed by the President, the Vice President, and any officer occupying a position listed in
section 5312 or section 5313 of title 5, United Sates Code, having been nominated by the President and confirmed by the Senate to that position,
section 11(a) shall not be effective. See Act of Apr. 15, 2013, Pub. L. 112-7 § 1, 127 Stat. 438 (2013).
47
(1) IN GENERAL.—Subject to paragraph (6), and not later than January 1, 2014, the
President, acting through the Director of the Office of Government Ethics, shall develop
systems to enable—
(A) electronic filing of reports required by section 103 of the Ethics in
Government Act of 1978 (5 U.S.C. App. 103), other than subsection (h) of such
section; and
(B) public access to—
(i) financial disclosure reports filed by the President, Vice President, and any
officer occupying a position listed in section 5312 or section 5313 of title 5,
United States Code, having been nominated by the President and confirmed by
the Senate to that position,
(ii) reports filed by any individual described in clause (i) of a transaction
disclosure required by section 103(l) of the Ethics in Government Act of 1978,
and
(iii) notices of extensions, amendments, and blind trusts, with respect to
financial disclosure reports described in clauses (i) and (ii),
pursuant to title I of the Ethics in Government Act of 1978 (5 U.S.C. App. 101 et
seq.), through databases that are maintained on the official website of the Office of
Government Ethics.
(2) LOGIN.—For purposes of filings under paragraph (1)(B), section 105(b)(2) of the
Ethics in Government Act of 1978 (5 U.S.C. App. 105(b)(2)) does not apply.
(3) PUBLIC AVAILABILITY.—Pursuant to section 105(b)(1) of the Ethics in
Government Act of 1978 (5 U.S.C. App. 105(b)(1)), electronic availability on the official
website of the Office of Government Ethics under paragraph (1)(B) shall be deemed to
have met the public availability requirement.
(4) FILERS COVERED.—Executive branch employees required under title I of the
Ethics in Government Act of 1978 to file financial disclosure reports shall be able to file
the reports electronically with their supervising ethics office.
(5) EXTENSIONS.—Notices of extension for financial disclosure shall be made
available electronically under paragraph (1)(B) along with its related disclosure.
(6) ADDITIONAL TIME.—The requirements of this subsection may be implemented
after the date provided in paragraph (1) if the Director of the Office of Government
Ethics, after consultation with the Clerk of the House of Representatives and Secretary of
the Senate, identifies in writing to relevant congressional committees the additional time
needed for such implementation.
5 U.S.C. app. § 106. Review of reports
(a)(1) Each designated agency ethics official or Secretary concerned shall make
provisions to ensure that each report filed with him under this title is reviewed within sixty
days after the date of such filing, except that the Director of the Office of Government Ethics
shall review only those reports required to be transmitted to him under this title within sixty
days after the date of transmittal.
48
(2) Each congressional ethics committee and the Judicial Conference shall make
provisions to ensure that each report filed under this title is reviewed within sixty days
after the date of such filing.
(b)(1) If after reviewing any report under subsection (a), the Director of the Office of
Government Ethics, the Secretary concerned, the designated agency ethics official, a person
designated by the congressional ethics committee, or a person designated by the Judicial
Conference, as the case may be, is of the opinion that on the basis of information contained
in such report the individual submitting such report is in compliance with applicable laws and
regulations, he shall state such opinion on the report, and shall sign such report.
(2) If the Director of the Office of Government Ethics, the Secretary concerned, the
designated agency ethics official, a person designated by the congressional ethics
committee, or a person designated by the Judicial Conference, after reviewing any report
under subsection (a)—
(A) believes additional information is required to be submitted, he shall notify the
individual submitting such report what additional information is required and the time
by which it must be submitted, or
(B) is of the opinion, on the basis of information submitted, that the individual is
not in compliance with applicable laws and regulations, he shall notify the individual,
afford a reasonable opportunity for a written or oral response, and after consideration
of such response, reach an opinion as to whether or not, on the basis of information
submitted, the individual is in compliance with such laws and regulations.
(3) If the Director of the Office of Government Ethics, the Secretary concerned, the
designated agency ethics official, a person designated by a congressional ethics
committee, or a person designated by the Judicial Conference, reaches an opinion under
paragraph (2)(B) that an individual is not in compliance with applicable laws and
regulations, the official or committee shall notify the individual of that opinion and, after
an opportunity for personal consultation (if practicable), determine and notify the
individual of which steps, if any, would in the opinion of such official or committee be
appropriate for assuring compliance with such laws and regulations and the date by
which such steps should be taken. Such steps may include, as appropriate—
(A) divestiture,
(B) restitution,
(C) the establishment of a blind trust,
(D) request for an exemption under section 208(b) of title 18, United States Code,
or
(E) voluntary request for transfer, reassignment, limitation of duties, or
resignation.
The use of any such steps shall be in accordance with such rules or regulations as the
supervising ethics office may prescribe.
(4) If steps for assuring compliance with applicable laws and regulations are not taken
by the date set under paragraph (3) by an individual in a position in the executive branch
(other than in the Foreign Service or the uniformed services), appointment to which
49
requires the advice and consent of the Senate, the matter shall be referred to the President
for appropriate action.
(5) If steps for assuring compliance with applicable laws and regulations are not taken
by the date set under paragraph (3) by a member of the Foreign Service or the uniformed
services, the Secretary concerned shall take appropriate action.
(6) If steps for assuring compliance with applicable laws and regulations are not taken
by the date set under paragraph (3) by any other officer or employee, the matter shall be
referred to the head of the appropriate agency, the congressional ethics committee, or the
Judicial Conference, for appropriate action; except that in the case of the Postmaster
General or Deputy Postmaster General, the Director of the Office of Government Ethics
shall recommend to the Governors of the Board of Governors of the United States Postal
Service the action to be taken.
(7) Each supervising ethics office may render advisory opinions interpreting this title
within its respective jurisdiction. Notwithstanding any other provision of law, the
individual to whom a public advisory opinion is rendered in accordance with this
paragraph, and any other individual covered by this title who is involved in a fact
situation which is indistinguishable in all material aspects, and who acts in good faith in
accordance with the provisions and findings of such advisory opinion shall not, as a result
of such act, be subject to any penalty or sanction provided by this title.
5 U.S.C. app. § 107. Confidential reports and other additional requirements
(a)(1) Each supervising ethics office may require officers and employees under its
jurisdiction (including special Government employees as defined in section 202 of title 18,
United States Code) to file confidential financial disclosure reports, in such form as the
supervising ethics office may prescribe. The information required to be reported under this
subsection by the officers and employees of any department or agency shall be set forth in
rules or regulations prescribed by the supervising ethics office, and may be less extensive
than otherwise required by this title, or more extensive when determined by the supervising
ethics office to be necessary and appropriate in light of sections 202 through 209 of title 18,
United States Code, regulations promulgated thereunder, or the authorized activities of such
officers or employees. Any individual required to file a report pursuant to section 101 shall
not be required to file a confidential report pursuant to this subsection, except with respect to
information which is more extensive than information otherwise required by this title.
Subsections (a), (b), and (d) of section 105 shall not apply with respect to any such report.
(2) Any information required to be provided by an individual under this subsection
shall be confidential and shall not be disclosed to the public.
(3) Nothing in this subsection exempts any individual otherwise covered by the
requirement to file a public financial disclosure report under this title from such
requirement.
(b) The provisions of this title requiring the reporting of information shall supersede any
general requirement under any other provision of law or regulation with respect to the
reporting of information required for purposes of preventing conflicts of interest or apparent
50
conflicts of interest. Such provisions of this title shall not supersede the requirements of
section 7342 of title 5, United States Code.
(c) Nothing in this Act requiring reporting of information shall be deemed to authorize
the receipt of income, gifts, or reimbursements; the holding of assets, liabilities, or positions;
or the participation in transactions that are prohibited by law, Executive order, rule, or
regulation.
5 U.S.C. app. § 108. Authority of Comptroller General
(a) The Comptroller General shall have access to financial disclosure reports filed under
this title for the purposes of carrying out his statutory responsibilities.
(b) No later than December 31, 1992, and regularly thereafter, the Comptroller General
shall conduct a study to determine whether the provisions of this title are being carried out
effectively.
5 U.S.C. app. § 109. Definitions
For the purposes of this title, the term—
(1) ''congressional ethics committees'' means the Select Committee on Ethics of the
Senate and the Committee on Standards of Official Conduct of the House of
Representatives;
(2) ''dependent child'' means, when used with respect to any reporting individual, any
individual who is a son, daughter, stepson, or stepdaughter and who—
(A) is unmarried and under age 21 and is living in the household of such reporting
individual; or
(B) is a dependent of such reporting individual within the meaning of section 152
of the Internal Revenue Code of 1986 [26 U.S.C. 152];
(3) ''designated agency ethics official'' means an officer or employee who is
designated to administer the provisions of this title within an agency;
(4) ''executive branch'' includes each Executive agency (as defined in section 105 of
title 5, United States Code), other than the General Accounting Office, and any other
entity or administrative unit in the executive branch;
(5) ''gift'' means a payment, advance, forbearance, rendering, or deposit of money, or
any thing of value, unless consideration of equal or greater value is received by the
donor, but does not include—
(A) bequest and other forms of inheritance;
(B) suitable mementos of a function honoring the reporting individual;
(C) food, lodging, transportation, and entertainment provided by a foreign
government within a foreign country or by the United States Government, the District
of Columbia, or a State or local government or political subdivision thereof;
(D) food and beverages which are not consumed in connection with a gift of
overnight lodging;
(E) communications to the offices of a reporting individual, including
subscriptions to newspapers and periodicals; or
51
(F) consumable products provided by home-State businesses to the offices of a
reporting individual who is an elected official, if those products are intended for
consumption by persons other than such reporting individual;
(6) ''honoraria'' has the meaning given such term in section 505 of this Act;
(7) ''income'' means all income from whatever source derived, including but not
limited to the following items: compensation for services, including fees, commissions,
and similar items; gross income derived from business (and net income if the individual
elects to include it); gains derived from dealings in property; interest; rents; royalties;
dividends; annuities; income from life insurance and endowment contracts; pensions;
income from discharge of indebtedness; distributive share of partnership income; and
income from an interest in an estate or trust;
(8) ''judicial employee'' means any employee of the judicial branch of the
Government, of the United States Sentencing Commission, of the Tax Court, of the Court
of Federal Claims, of the Court of Appeals for Veterans Claims, or of the United States
Court of Appeals for the Armed Forces, who is not a judicial officer and who is
authorized to perform adjudicatory functions with respect to proceedings in the judicial
branch, or who occupies a position for which the rate of basic pay is equal to or greater
than 120 percent of the minimum rate of basic pay payable for GS-15 of the General
Schedule;
(9) ''Judicial Conference'' means the Judicial Conference of the United States;
(10) ''judicial officer'' means the Chief Justice of the United States, the Associate
Justices of the Supreme Court, and the judges of the United States courts of appeals,
United States district courts, including the district courts in Guam, the Northern Mariana
Islands, and the Virgin Islands, Court of Appeals for the Federal Circuit, Court of
International Trade, Tax Court, Court of Federal Claims, Court of Appeals for Veterans
Claims, United States Court of Appeals for the Armed Forces, and any court created by
Act of Congress, the judges of which are entitled to hold office during good behavior;
(11) ''legislative branch'' includes—
(A) the Architect of the Capitol;
(B) the Botanic Gardens;
(C) the Congressional Budget Office;
(D) the Government Accountability Office;
(E) the Government Printing Office; 20
(F) the Library of Congress;
(G) the United States Capitol Police;
(H) the Office of Technology Assessment; and
(I) any other agency, entity, office, or commission established in the legislative
branch;
(12) ''Member of Congress'' means a United States Senator, a Representative in
Congress, a Delegate to Congress, or the Resident Commissioner from Puerto Rico;
20
The Government Printing Office has been redesignated the Government Publishing Office. Consolidated and Further Continuing
Appropriations Act, 2015, Pub. L. 113-235 § 1301, 128 Stat. 2130 (2014).
52
(13) ''officer or employee of the Congress'' means—
(A) any individual described under subparagraph (B), other than a Member of
Congress or the Vice President, whose compensation is disbursed by the Secretary of
the Senate or the Chief Administrative Officer of the House of Representatives;
(B)(i) each officer or employee of the legislative branch (except any officer or
employee of the Government Accountability Office) who, for at least 60 days,
occupies a position for which the rate of basic pay is equal to or greater than 120
percent of the minimum rate of basic pay payable for GS-15 of the General Schedule;
(ii) each officer or employee of the Government Accountability Office who,
for at least 60 consecutive days, occupies a position for which the rate of basic
pay, minus the amount of locality pay that would have been authorized under
section 5304 of title 5, United States Code (had the officer or employee been paid
under the General Schedule) for the locality within which the position of such
officer or employee is located (as determined by the Comptroller General), is
equal to or greater than 120 percent of the minimum rate of basic pay payable for
GS-15 of the General Schedule; and
(iii) at least one principal assistant designated for purposes of this paragraph
by each Member who does not have an employee who occupies a position for
which the rate of basic pay is equal to or greater than 120 percent of the minimum
rate of basic pay payable for GS-15 of the General Schedule;
(14) ''personal hospitality of any individual'' means hospitality extended for a
nonbusiness purpose by an individual, not a corporation or organization, at the personal
residence of that individual or his family or on property or facilities owned by that
individual or his family;
(15) ''reimbursement'' means any payment or other thing of value received by the
reporting individual, other than gifts, to cover travel-related expenses of such individual
other than those which are—
(A) provided by the United States Government, the District of Columbia, or a
State or local government or political subdivision thereof;
(B) required to be reported by the reporting individual under section 7342 of
title 5, United States Code; or
(C) required to be reported under section 304 of the Federal Election Campaign
Act of 1971 (2 U.S.C. 434);
(16) ''relative'' means an individual who is related to the reporting individual, as
father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first
cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson,
granddaughter, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law,
sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half
brother, half sister, or who is the grandfather or grandmother of the spouse of the
reporting individual, and shall be deemed to include the fiance or fiancee of the reporting
individual;
(17) ''Secretary concerned'' has the meaning set forth in section 101(a)(9) of title 10,
United States Code, and, in addition, means—
53
(A) the Secretary of Commerce, with respect to matters concerning the National
Oceanic and Atmospheric Administration;
(B) the Secretary of Health and Human Services, with respect to matters
concerning the Public Health Service; and
(C) the Secretary of State, with respect to matters concerning the Foreign Service;
(18) ''supervising ethics office'' means—
(A) the Select Committee on Ethics of the Senate, for Senators, officers and
employees of the Senate, and other officers or employees of the legislative branch
required to file financial disclosure reports with the Secretary of the Senate pursuant
to section 103(h) of this title;
(B) the Committee on Standards of Official Conduct of the House of
Representatives, for Members, officers and employees of the House of
Representatives and other officers or employees of the legislative branch required to
file financial disclosure reports with the Clerk of the House of Representatives
pursuant to section 103(h) of this title;
(C) the Judicial Conference for judicial officers and judicial employees; and
(D) the Office of Government Ethics for all executive branch officers and
employees; and
(19) ''value'' means a good faith estimate of the dollar value if the exact value is
neither known nor easily obtainable by the reporting individual.
5 U.S.C. app. § 110. Notice of actions taken to comply with ethics agreements
(a) In any case in which an individual agrees with that individual's designated agency
ethics official, the Office of Government Ethics, a Senate confirmation committee, a
congressional ethics committee, or the Judicial Conference, to take any action to comply with
this Act or any other law or regulation governing conflicts of interest of, or establishing
standards of conduct applicable with respect to, officers or employees of the Government,
that individual shall notify in writing the designated agency ethics official, the Office of
Government Ethics, the appropriate committee of the Senate, the congressional ethics
committee, or the Judicial Conference, as the case may be, of any action taken by the
individual pursuant to that agreement. Such notification shall be made not later than the date
specified in the agreement by which action by the individual must be taken, or not later than
three months after the date of the agreement, if no date for action is so specified.
(b) If an agreement described in subsection (a) requires that the individual recuse himself
or herself from particular categories of agency or other official action, the individual shall
reduce to writing those subjects regarding which the recusal agreement will apply and the
process by which it will be determined whether the individual must recuse himself or herself
in a specific instance. An individual shall be considered to have complied with the
requirements of subsection (a) with respect to such recusal agreement if such individual files
a copy of the document setting forth the information described in the preceding sentence with
such individual's designated agency ethics official or the appropriate supervising ethics office
within the time prescribed in the last sentence of subsection (a).
54
5 U.S.C. app. § 111. Administration of provisions
The provisions of this title shall be administered by—
(1) the Director of the Office of Government Ethics, the designated agency ethics
official, or the Secretary concerned, as appropriate, with regard to officers and employees
described in paragraphs (1) through (8) of section 101(f);
(2) the Select Committee on Ethics of the Senate and the Committee on Standards of
Official Conduct of the House of Representatives, as appropriate, with regard to officers
and employees described in paragraphs (9) and (10) of section 101(f); and
(3) the Judicial Conference in the case of an officer or employee described in
paragraphs (11) and (12) of section 101(f).
The Judicial Conference may delegate any authority it has under this title to an ethics
committee established by the Judicial Conference.
B. Office of Government Ethics
5 U.S.C. app. § 401. Establishment; appointment of Director
(a) There is established an executive agency to be known as the Office of Government
Ethics.
(b) There shall be at the head of the Office of Government Ethics a Director (hereinafter
referred to as the ''Director''), who shall be appointed by the President, by and with the advice
and consent of the Senate. Effective with respect to any individual appointed or reappointed
by the President as Director on or after October 1, 1983, the term of service of the Director
shall be five years.
(c) The Director may—
(1) appoint officers and employees, including attorneys, in accordance with chapter
51 and subchapter III of chapter 53 of title 5, United States Code; and
(2) contract for financial and administrative services (including those related to
budget and accounting, financial reporting, personnel, and procurement) with the General
Services Administration, or such other Federal agency as the Director determines
appropriate, for which payment shall be made in advance, or by reimbursement, from
funds of the Office of Government Ethics in such amounts as may be agreed upon by the
Director and the head of the agency providing such services.
Contract authority under paragraph (2) shall be effective for any fiscal year only to the extent
that appropriations are available for that purpose.
5 U.S.C. app. § 402. Authority and functions
(a) The Director shall provide, in consultation with the Office of Personnel Management,
overall direction of executive branch policies related to preventing conflicts of interest on the
part of officers and employees of any executive agency, as defined in section 105 of title 5,
United States Code.
(b) The responsibilities of the Director shall include—
(1) developing, in consultation with the Attorney General and the Office of Personnel
Management, rules and regulations to be promulgated by the President or the Director
55
pertaining to conflicts of interest and ethics in the executive branch, including rules and
regulations establishing procedures for the filing, review, and public availability of
financial statements filed by officers and employees in the executive branch as required
by title II of this Act;
(2) developing, in consultation with the Attorney General and the Office of Personnel
Management, rules and regulations to be promulgated by the President or the Director
pertaining to the identification and resolution of conflicts of interest;
(3) monitoring and investigating compliance with the public financial disclosure
requirements of title II of this Act by officers and employees of the executive branch and
executive agency officials responsible for receiving, reviewing, and making available
financial statements filed pursuant to such title;
(4) conducting a review of financial statements to determine whether such statements
reveal possible violations of applicable conflict of interest laws or regulations and
recommending appropriate action to correct any conflict of interest or ethical problems
revealed by such review;
(5) monitoring and investigating individual and agency compliance with any
additional financial reporting and internal review requirements established by law for the
executive branch;
(6) interpreting rules and regulations issued by the President or the Director
governing conflict of interest and ethical problems and the filing of financial statements;
(7) consulting, when requested, with agency ethics counselors and other responsible
officials regarding the resolution of conflict of interest problems in individual cases;
(8) establishing a formal advisory opinion service whereby advisory opinions are
rendered on matters of general applicability or on important matters of first impression
after, to the extent practicable, providing interested parties with an opportunity to
transmit written comments with respect to the request for such advisory opinion, and
whereby such advisory opinions are compiled, published, and made available to agency
ethics counselors and the public;
(9) ordering corrective action on the part of agencies and employees which the
Director deems necessary;
(10) requiring such reports from executive agencies as the Director deems necessary;
(11) assisting the Attorney General in evaluating the effectiveness of the conflict of
interest laws and in recommending appropriate amendments;
(12) evaluating, with the assistance of the Attorney General and the Office of
Personnel Management, the need for changes in rules and regulations issued by the
Director and the agencies regarding conflict of interest and ethical problems, with a view
toward making such rules and regulations consistent with and an effective supplement to
the conflict of interest laws;
(13) cooperating with the Attorney General in developing an effective system for
reporting allegations of violations of the conflict of interest laws to the Attorney General,
as required by section 535 of title 28, United States Code;
(14) providing information on and promoting understanding of ethical standards in
executive agencies; and
56
(15) developing, in consultation with the Office of Personnel Management, and
promulgating such rules and regulations as the Director determines necessary or desirable
with respect to the evaluation of any item required to be reported by title II of this Act.
(c) In the development of policies, rules, regulations, procedures, and forms to be
recommended, authorized, or prescribed by him, the Director shall consult when appropriate
with the executive agencies affected and with the Attorney General.
(d)(1) The Director shall, by the exercise of any authority otherwise available to the
Director under this title, ensure that each executive agency has established written procedures
relating to how the agency is to collect, review, evaluate, and, if applicable, make publicly
available, financial disclosure statements filed by any of its officers or employees.
(2) In carrying out paragraph (1), the Director shall ensure that each agency's
procedures are in conformance with all applicable requirements, whether established by
law, rule, regulation, or Executive order.
(e) In carrying out subsection (b)(10), the Director shall prescribe regulations under
which—
(1) each executive agency shall be required to submit to the Office an annual report
containing—
(A) a description and evaluation of the agency's ethics program, including any
educational, counseling, or other services provided to officers and employees, in
effect during the period covered by the report; and
(B) the position title and duties of—
(i) each official who was designated by the agency head to have primary
responsibility for the administration, coordination, and management of the
agency's ethics program during any portion of the period covered by the report;
and
(ii) each officer or employee who was designated to serve as an alternate to
the official having primary responsibility during any portion of such period; and
(C) any other information that the Director may require in order to carry out the
responsibilities of the Director under this title; and
(2) each executive agency shall be required to inform the Director upon referral of
any alleged violation of Federal conflict of interest law to the Attorney General pursuant
to section 535 of title 28, United States Code, except that nothing under this paragraph
shall require any notification or disclosure which would otherwise be prohibited by law.
(f)(1) In carrying out subsection (b)(9) with respect to executive agencies, the Director—
(A) may—
(i) order specific corrective action on the part of an agency based on the
failure of such agency to establish a system for the collection, filing, review, and,
when applicable, public inspection of financial disclosure statements, in
accordance with applicable requirements, or to modify an existing system in order
to meet applicable requirements; or
(ii) order specific corrective action involving the establishment or
modification of an agency ethics program (other than with respect to any matter
under clause (i)) in accordance with applicable requirements; and
57
(B) shall, if an agency has not complied with an order under subparagraph (A)
within a reasonable period of time, notify the President and the Congress of the
agency's noncompliance in writing (including, with the notification, any written
comments which the agency may provide).
(2)(A) In carrying out subsection (b)(9) with respect to individual officers and
employees—
(i) the Director may make such recommendations and provide such advice to
such officers and employees as the Director considers necessary to ensure
compliance with rules, regulations, and Executive orders relating to conflicts of
interest or standards of conduct;
(ii) if the Director has reason to believe that an officer or employee is
violating, or has violated, any rule, regulation, or Executive order relating to
conflicts of interest or standards of conduct, the Director—
(I) may recommend to the head of the officer's or employee's agency that
such agency head investigate the possible violation and, if the agency head
finds such a violation, that such agency head take any appropriate disciplinary
action (such as reprimand, suspension, demotion, or dismissal) against the
officer or employee, except that, if the officer or employee involved is the
agency head, any such recommendation shall instead be submitted to the
President; and
(II) shall notify the President in writing if the Director determines that the
head of an agency has not conducted an investigation pursuant to subclause (I)
within a reasonable time after the Director recommends such action;
(iii) if the Director finds that an officer or employee is violating any rule,
regulation, or Executive order relating to conflicts of interest or standards of
conduct, the Director—
(I) may order the officer or employee to take specific action (such as
divestiture, recusal, or the establishment of a blind trust) to end such violation;
and
(II) shall, if the officer or employee has not complied with the order under
subclause (I) within a reasonable period of time, notify, in writing, the head of
the officer's or employee's agency of the officer's or employee's
noncompliance, except that, if the officer or employee involved is the agency
head, the notification shall instead be submitted to the President; and
(iv) if the Director finds that an officer or employee is violating, or has
violated, any rule, regulation, or Executive order relating to conflicts of interest or
standards of conduct, the Director—
(I) may recommend to the head of the officer's or employee's agency that
appropriate disciplinary action (such as reprimand, suspension, demotion, or
dismissal) be brought against the officer or employee, except that if the officer
or employee involved is the agency head, any such recommendations shall
instead be submitted to the President; and
58
(II) may notify the President in writing if the Director determines that the
head of an agency has not taken appropriate disciplinary action within a
reasonable period of time after the Director recommends such action.
(B)(i) In order to carry out the Director's duties and responsibilities under
subparagraph (A)(iii) or (iv) with respect to individual officers and employees, the
Director may conduct investigations and make findings concerning possible
violations of any rule, regulation, or Executive order relating to conflicts of interest or
standards of conduct applicable to officers and employees of the executive branch.
(ii)(I) Subject to clause (iv) of this subparagraph, before any finding is made
under subparagraphs (A)(iii) or (iv), the officer or employee involved shall be
afforded notification of the alleged violation, and an opportunity to comment,
either orally or in writing, on the alleged violation.
(II) The Director shall, in accordance with section 553 of title 5, United
States Code, establish procedures for such notification and comment.
(iii) Subject to clause (iv) of this subparagraph, before any action is ordered
under subparagraph (A)(iii), the officer or employee involved shall be afforded an
opportunity for a hearing, if requested by such officer or employee, except that
any such hearing shall be conducted on the record.
(iv) The procedures described in clauses (ii) and (iii) of this subparagraph do
not apply to findings or orders for action made to obtain compliance with the
financial disclosure requirements in title 2 21 of this Act. For those findings and
orders, the procedures in section 206 of this Act shall apply.
(3) The Director shall send a copy of any order under paragraph (2)(A)(iii) to—
(A) the officer or employee who is the subject of such order; and
(B) the head of officer's or employee's agency or, if such officer or employee is
the agency head, to the President.
(4) For purposes of paragraphs (2)(A)(ii), (iii), (iv), and (3)(B), in the case of an
officer or employee within an agency which is headed by a board, committee, or other
group of individuals (rather than by a single individual), any notification,
recommendation, or other matter which would otherwise be sent to an agency head shall
instead be sent to the officer's or employee's appointing authority.
(5) Nothing in this title shall be considered to allow the Director (or any designee) to
make any finding that a provision of title 18, United States Code, or any criminal law of
the United States outside of such title, has been or is being violated.
(6) Notwithstanding any other provision of law, no record developed pursuant to the
authority of this section concerning an investigation of an individual for a violation of
any rule, regulation, or Executive order relating to a conflict of interest shall be made
available pursuant to section 552(a)(3) of title 5, United States Code, unless the request
for such information identifies the individual to whom such records relate and the subject
matter of any alleged violation to which such records relate, except that nothing in this
21
So in original. Probably should be title ''II''.
59
subsection shall affect the application of the provisions of section 552(b) of title 5, United
States Code, to any record so identified.
5 U.S.C. app. § 403. Administrative provisions
(a) Upon the request of the Director, each executive agency is directed to—
(1) make its services, personnel, and facilities available to the Director to the greatest
practicable extent for the performance of functions under this Act; and
(2) except when prohibited by law, furnish to the Director all information and records
in its possession which the Director may determine to be necessary for the performance
of his duties.
The authority of the Director under this section includes the authority to request assistance
from the inspector general of an agency in conducting investigations pursuant to the Office of
Government Ethics responsibilities under this Act. The head of any agency may detail such
personnel and furnish such services, with or without reimbursement, as the Director may
request to carry out the provisions of this Act 22
(b)(1) The Director is authorized to accept and utilize on behalf of the United States, any
gift, donation, bequest, or devise of money, use of facilities, personal property, or services for
the purpose of aiding or facilitating the work of the Office of Government Ethics.
(2) No gift may be accepted—
(A) that attaches conditions inconsistent with applicable laws or regulations; or
(B) that is conditioned upon or will require the expenditure of appropriated funds
that are not available to the Office of Government Ethics.
(3) The Director shall establish written rules setting forth the criteria to be used in
determining whether the acceptance of contributions of money, services, use of facilities,
or personal property under this subsection would reflect unfavorably upon the ability of
the Office of Government Ethics, or any employee of such Office, to carry out its
responsibilities or official duties in a fair and objective manner, or would compromise the
integrity or the appearance of the integrity of its programs or any official involved in
those programs.
5 U.S.C. app. § 404. Rules and regulations
In promulgating rules and regulations pertaining to financial disclosure, conflict of
interest, and ethics in the executive branch, the Director shall issue rules and regulations in
accordance with chapter 5 of title 5, United States Code. Any person may seek judicial
review of any such rule or regulation.
5 U.S.C. app. § 405. Authorization of appropriations
There are authorized to be appropriated to carry out this title such sums as may be
necessary for fiscal year 2007.
22
So in original. Probably should be followed by a period.
60
5 U.S.C. app. § 408. Reports to Congress 23
The Director shall, no later than April 30 of each year in which the second session of a
Congress begins, submit to the Congress a report containing—
(1) a summary of the actions taken by the Director during a 2-year period ending on
December 31 of the preceding year in order to carry out the Director's functions and
responsibilities under this title; and
(2) such other information as the Director may consider appropriate.
C. Outside Earned Income and Activities
5 U.S.C. app. § 501. Outside earned income limitation
(a) OUTSIDE EARNED INCOME LIMITATION.—
(1) Except as provided by paragraph (2), a Member or an officer or employee who is
a noncareer officer or employee and who occupies a position classified above GS-15 of
the General Schedule or, in the case of positions not under the General Schedule, for
which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of
basic pay payable for GS-15 of the General Schedule, may not in any calendar year have
outside earned income attributable to such calendar year which exceeds 15 percent of the
annual rate of basic pay for level II of the Executive Schedule under section 5313 of title
5, United States Code, as of January 1 of such calendar year.
(2) In the case of any individual who during a calendar year becomes a Member or an
officer or employee who is a noncareer officer or employee and who occupies a position
classified above GS-15 of the General Schedule or, in the case of positions not under the
General Schedule, for which the rate of basic pay is equal to or greater than 120 percent
of the minimum rate of basic pay payable for GS-15 of the General Schedule, such
individual may not have outside earned income attributable to the portion of that calendar
year which occurs after such individual becomes a Member or such an officer or
employee which exceeds 15 percent of the annual rate of basic pay for level II of the
Executive Schedule under section 5313 of title 5, United States Code, as of January 1 of
such calendar year multiplied by a fraction the numerator of which is the number of days
such individual is a Member or such officer or employee during such calendar year and
the denominator of which is 365.
(b) HONORARIA PROHIBITION.—An individual may not receive any honorarium while that
individual is a Member, officer or employee.
(c) TREATMENT OF CHARITABLE CONTRIBUTIONS.—Any honorarium which, except for
subsection (b), might be paid to a Member, officer or employee, but which is paid instead on
behalf of such Member, officer or employee to a charitable organization, shall be deemed not
to be received by such Member, officer or employee. No such payment shall exceed $2,000
or be made to a charitable organization from which such individual or a parent, sibling,
spouse, child, or dependent relative of such individual derives any financial benefit.
23
This requirement is no longer effective. Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66, § 3003(c), 109 Stat.
707, 735-36 (1995).
61
5 U.S.C. app. § 502. Limitations on outside employment
(a) LIMITATIONS.—A Member or an officer or employee who is a noncareer officer or
employee and who occupies a position classified above GS-15 of the General Schedule or, in
the case of positions not under the General Schedule, for which the rate of basic pay is equal
to or greater than 120 percent of the minimum rate of basic pay payable for GS-15 of the
General Schedule shall not—
(1) receive compensation for affiliating with or being employed by a firm,
partnership, association, corporation, or other entity which provides professional services
involving a fiduciary relationship;
(2) permit that Member's, officer's, or employee's name to be used by any such firm,
partnership, association, corporation, or other entity;
(3) receive compensation for practicing a profession which involves a fiduciary
relationship;
(4) serve for compensation as an officer or member of the board of any association,
corporation, or other entity; or
(5) receive compensation for teaching, without the prior notification and approval of
the appropriate entity referred to in section 503.
(b) Teaching compensation of justices and judges retired from regular active service.—
For purposes of the limitation under section 501(a), any compensation for teaching approved
under subsection (a)(5) of this section shall not be treated as outside earned income—
(1) when received by a justice of the United States retired from regular active service
under section 371(b) of title 28, United States Code;
(2) when received by a judge of the United States retired from regular active service
under section 371(b) of title 28, United States Code, for teaching performed during any
calendar year for which such judge has met the requirements of subsection (f) of section
371 of title 28, United States Code, as certified in accordance with such subsection; or
(3) when received by a justice or judge of the United States retired from regular
active service under section 372(a) of title 28, United States Code.
5 U.S.C. app. § 503. Administration
This title shall be subject to the rules and regulations of—
(1) and administered by—
(A) the Committee on Standards of Official Conduct of the House of
Representatives, with respect to Members, officers, and employees of the House of
Representatives; and
(B) in the case of Senators and legislative branch officers and employees other
than those officers and employees specified in subparagraph (A), the committee to
which reports filed by such officers and employees under title I are transmitted under
such title, except that the authority of this section may be delegated by such
committee with respect to such officers and employees;
(2) the Office of Government Ethics and administered by designated agency ethics
officials with respect to officers and employees of the executive branch; and
62
(3) and administered by the Judicial Conference of the United States (or such other
agency as it may designate) with respect to officers and employees of the judicial branch.
5 U.S.C. app. § 504. Civil Penalties
(a) CIVIL ACTION.—The Attorney General may bring a civil action in any appropriate
United States district court against any individual who violates any provision of section 501
or 502. The court in which such action is brought may assess against such individual a civil
penalty of not more than $10,000 24 or the amount of compensation, if any, which the
individual received for the prohibited conduct, whichever is greater.
(b) ADVISORY OPINIONS.—Any entity described in section 503 may render advisory
opinions interpreting this title, in writing, to individuals covered by this title. Any individual
to whom such an advisory opinion is rendered and any other individual covered by this title
who is involved in a fact situation which is indistinguishable in all material aspects, and who,
after the issuance of such advisory opinion, acts in good faith in accordance with its
provisions and findings shall not, as a result of such actions, be subject to any sanction under
subsection (a).
5 U.S.C. app. § 505. Definitions
For purposes of this title:
(1) The term ''Member'' means a Senator in, a Representative in, or a Delegate or
Resident Commissioner to, the Congress.
(2) The term ''officer or employee'' means any officer or employee of the Government
except any special Government employee (as defined in section 202 of title 18, United
States Code).
(3) The term ''honorarium'' means a payment of money or any thing of value for an
appearance, speech or article (including a series of appearances, speeches, or articles if
the subject matter is directly related to the individual's official duties or the payment is
made because of the individual's status with the Government) by a Member, officer or
employee, excluding any actual and necessary travel expenses incurred by such
individual (and one relative) to the extent that such expenses are paid or reimbursed by
any other person, and the amount otherwise determined shall be reduced by the amount
of any such expenses to the extent that such expenses are not paid or reimbursed.
(4) The term ''travel expenses'' means, with respect to a Member, officer or employee,
or a relative of any such individual, the cost of transportation, and the cost of lodging and
meals while away from his or her residence or principal place of employment.
(5) The term ''charitable organization'' means an organization described in section
170(c) of the Internal Revenue Code of 1986 (26 U.S.C. 170(c)).
24
The maximum amount of this alternative dollar-specific portion of the civil monetary penalty provided for under this section was adjusted
from $10,000 to $11,000 in 1999 by an inflation adjustment rulemaking of the Justice Department, and as reflected in a coordinated OGE
adjustment rulemaking; it can be further adjusted periodically in future such rulemakings. See 28 C.F.R. § 85.3(a)(5) and 5 C.F.R. §
2636.104(a).
63
D. Use of Nonpublic Information for Private Profit
Pub. L. 112-105 § 3 (STOCK Act). Prohibition of the use of nonpublic information for
private profit
The Select Committee on Ethics of the Senate and the Committee on Ethics of the House
of Representatives shall issue interpretive guidance of the relevant rules of each chamber,
including rules on conflicts of interest and gifts, clarifying that a Member of Congress and an
employee of Congress may not use nonpublic information derived from such person's
position as a Member of Congress or employee of Congress or gained from the performance
of such person's official responsibilities as a means for making a private profit.
Pub. L. 112-105 § 9(a) (STOCK Act). Other Federal officials
(a) PROHIBITION OF THE USE OF NONPUBLIC INFORMATION FOR PRIVATE PROFIT.—
(1) EXECUTIVE BRANCH EMPLOYEES.—The Office of Government Ethics shall issue
such interpretive guidance of the relevant Federal ethics statutes and regulations,
including the Standards of Ethical Conduct for executive branch employees, related to
use of nonpublic information, as necessary to clarify that no executive branch employee
may use nonpublic information derived from such person's position as an executive
branch employee or gained from the performance of such person's official responsibilities
as a means for making a private profit.
(2) JUDICIAL OFFICERS.—The Judicial Conference of the United States shall issue
such interpretive guidance of the relevant ethics rules applicable to Federal judges,
including the Code of Conduct for United States Judges, as necessary to clarify that no
judicial officer may use nonpublic information derived from such person's position as a
judicial officer or gained from the performance of such person's official responsibilities
as a means for making a private profit.
(3) JUDICIAL EMPLOYEES.—The Judicial Conference of the United States shall issue
such interpretive guidance of the relevant ethics rules applicable to judicial employees as
necessary to clarify that no judicial employee may use nonpublic information derived
from such person's position as a judicial employee or gained from the performance of
such person's official responsibilities as a means for making a private profit.
E. Post-Employment Negotiation Restrictions
Pub. L. 112-105 § 17 (STOCK Act). Post-employment negotiation restrictions
(a) RESTRICTION EXTENDED TO EXECUTIVE AND JUDICIAL BRANCHES.—Notwithstanding
any other provision of law, an individual required to file a financial disclosure report under
section 101 of the Ethics in Government Act of 1978 (5 U.S.C. App. 101) may not directly
negotiate or have any agreement of future employment or compensation unless such
individual, within 3 business days after the commencement of such negotiation or agreement
of future employment or compensation, files with the individual's supervising ethics office a
statement, signed by such individual, regarding such negotiations or agreement, including the
name of the private entity or entities involved in such negotiations or agreement, and the date
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such negotiations or agreement commenced.
(b) RECUSAL.—An individual filing a statement under subsection (a) shall recuse himself
or herself whenever there is a conflict of interest, or appearance of a conflict of interest, for
such individual with respect to the subject matter of the statement, and shall notify the
individual's supervising ethics office of such recusal. An individual making such recusal
shall, upon such recusal, submit to the supervising ethics office the statement under
subsection (a) with respect to which the recusal was made.
E. General Provisions (STOCK Act)
Pub. L. 112-105 § 2 (STOCK Act). Definitions
In this Act:
(1) MEMBER OF CONGRESS.—The term “Member of Congress” means a member of
the Senate or House of Representatives, a Delegate to the House of Representatives, and
the Resident Commissioner from Puerto Rico.
(2) EMPLOYEE OF CONGRESS.—The term “employee of Congress” means—
(A) any individual (other than a Member of Congress), whose compensation is
disbursed by the Secretary of the Senate or the Chief Administrative Officer of the
House of Representatives; and
(B) any other officer or employee of the legislative branch (as defined in section
109(11) of the Ethics in Government Act of 1978 (5 U.S.C. App. 109(11))).
(3) EXECUTIVE BRANCH EMPLOYEE.—The term “executive branch employee”—
(A) has the meaning given the term “employee” under section 2105 of title 5,
United States Code; and
(B) includes—
(i) the President;
(ii) the Vice President; and
(iii) an employee of the United States Postal Service or the Postal Regulatory
Commission.
(4) JUDICIAL OFFICER.—The term “judicial officer” has the meaning given that term
under section 109(10) of the Ethics in Government Act of 1978 (5 U.S.C. App. 109(10)).
(5) JUDICIAL EMPLOYEE.—The term “judicial employee” has the meaning given that
term in section 109(8) of the Ethics in Government Act of 1978 (5 U.S.C. App. 109(8)).
(6) SUPERVISING ETHICS OFFICE.—The term “supervising ethics office” has the
meaning given that term in section 109(18) of the Ethics in Government Act of 1978 (5
U.S.C. App. 109(18)).
Pub. L. 112-105 § 10 (STOCK Act). Rule of construction
Nothing in this Act, the amendments made by this Act, or the interpretive guidance to be
issued pursuant to sections 3 and 9 of this Act, shall be construed to—
(1) impair or limit the construction of the antifraud provisions of the securities laws or
the Commodity Exchange Act or the authority of the Securities and Exchange
Commission or the Commodity Futures Trading Commission under those provisions;
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(2) be in derogation of the obligations, duties, and functions of a Member of
Congress, an employee of Congress, an executive branch employee, a judicial officer, or
a judicial employee, arising from such person's official position; or
(3) be in derogation of existing laws, regulations, or ethical obligations governing
Members of Congress, employees of Congress, executive branch employees, judicial
officers, or judicial employees.
III. PROCUREMENT AND CONTRACTING
A. Restrictions on Obtaining and Disclosing Certain Information
41 U.S.C. § 2101. Definitions
In this chapter:
(1) CONTRACTING OFFICER.—The term “contracting officer” means an individual
who, by appointment in accordance with applicable regulations, has the authority to enter
into a Federal agency procurement contract on behalf of the Government and to make
determinations and findings with respect to the contract.
(2) CONTRACTOR BID OR PROPOSAL INFORMATION.—The term “contractor bid or
proposal information” means any of the following information submitted to a Federal
agency as part of, or in connection with, a bid or proposal to enter into a Federal agency
procurement contract, if that information previously has not been made available to the
public or disclosed publicly:
(A) Cost or pricing data (as defined in section 2306a(h) of title 10 with respect to
procurements subject to that section and section 3501(a) of this title with respect to
procurements subject to that section).
(B) Indirect costs and direct labor rates.
(C) Proprietary information about manufacturing processes, operations, or
techniques marked by the contractor in accordance with applicable law or regulation.
(D) Information marked by the contractor as “contractor bid or proposal
information”, in accordance with applicable law or regulation.
(3) FEDERAL AGENCY.—The term “Federal agency” has the meaning given that term
in section 102 of title 40.
(4) FEDERAL AGENCY PROCUREMENT.—The term “Federal agency procurement”
means the acquisition (by using competitive procedures and awarding a contract) of
goods or services (including construction) from non-Federal sources by a Federal agency
using appropriated funds.
(5) OFFICIAL.—The term “official” means—
(A) an officer, as defined in section 2104 of title 5;
(B) an employee, as defined in section 2105 of title 5; and
(C) a member of the uniformed services, as defined in section 2101(3) of title 5.
(6) PROTEST.—The term “protest” means a written objection by an interested party to
the award or proposed award of a Federal agency procurement contract, pursuant to
subchapter V of chapter 35 of title 31.
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(7) SOURCE SELECTION INFORMATION.—The term “source selection information”
means any of the following information prepared for use by a Federal agency to evaluate
a bid or proposal to enter into a Federal agency procurement contract, if that information
previously has not been made available to the public or disclosed publicly:
(A) Bid prices submitted in response to a Federal agency solicitation for sealed
bids, or lists of those bid prices before public bid opening.
(B) Proposed costs or prices submitted in response to a Federal agency
solicitation, or lists of those proposed costs or prices.
(C) Source selection plans.
(D) Technical evaluation plans.
(E) Technical evaluations of proposals.
(F) Cost or price evaluations of proposals.
(G) Competitive range determinations that identify proposals that have a
reasonable chance of being selected for award of a contract.
(H) Rankings of bids, proposals, or competitors.
(I) Reports and evaluations of source selection panels, boards, or advisory
councils.
(J) Other information marked as “source selection information” based on a caseby-case determination by the head of the agency, the head’s designee, or the
contracting officer that its disclosure would jeopardize the integrity or successful
completion of the Federal agency procurement to which the information relates.
41 U.S.C. § 2102. Prohibitions on disclosing and obtaining procurement information
(a) PROHIBITION ON DISCLOSING PROCUREMENT INFORMATION.—
(1) IN GENERAL.—Except as provided by law, a person described in paragraph (3)
shall not knowingly disclose contractor bid or proposal information or source selection
information before the award of a Federal agency procurement contract to which the
information relates.
(2) EMPLOYEE OF PRIVATE SECTOR ORGANIZATION.—In addition to the restriction in
paragraph (1), an employee of a private sector organization assigned to an agency under
chapter 37 of title 5 shall not knowingly disclose contractor bid or proposal information
or source selection information during the 3-year period after the employee’s assignment
ends, except as provided by law.
(3) APPLICATION.—Paragraph (1) applies to a person that—
(A)(i) is a present or former official of the Federal Government; or
(ii) is acting or has acted for or on behalf of, or who is advising or has advised
the Federal Government with respect to, a Federal agency procurement; and
(B) by virtue of that office, employment, or relationship has or had access to
contractor bid or proposal information or source selection information.
(b) PROHIBITION ON OBTAINING PROCUREMENT INFORMATION.—Except as provided by
law, a person shall not knowingly obtain contractor bid or proposal information or source
selection information before the award of a Federal agency procurement contract to
which the information relates.
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41 U.S.C. § 2103. Actions required of procurement officers when contacted regarding
non-Federal employment
(a) ACTIONS REQUIRED.—An agency official participating personally and substantially in
a Federal agency procurement for a contract in excess of the simplified acquisition threshold
who contacts or is contacted by a person that is a bidder or offeror in that Federal agency
procurement regarding possible non-Federal employment for that official shall—
(1) promptly report the contact in writing to the official’s supervisor and to the
designated agency ethics official (or designee) of the agency in which the official is
employed; and
(2)(A) reject the possibility of non-Federal employment; or (B) disqualify himself or
herself from further personal and substantial participation in that Federal agency
procurement until the agency authorizes the official to resume participation in the
procurement, in accordance with the requirements of section 208 of title 18 and
applicable agency regulations on the grounds that—
(i) the person is no longer a bidder or offeror in that Federal agency procurement;
or
(ii) all discussions with the bidder or offeror regarding possible non-Federal
employment have terminated without an agreement or arrangement for employment.
(b) RETENTION OF REPORTS.—The agency shall retain each report required by this section
for not less than 2 years following the submission of the report. The reports shall be made
available to the public on request, except that any part of a report that is exempt from the
disclosure requirements of section 552 of title 5 under subsection (b)(1) of that section may
be withheld from disclosure to the public.
(c) PERSONS SUBJECT TO PENALTIES.—The following are subject to the penalties and
administrative actions set forth in section 2105 of this title:
(1) An official who knowingly fails to comply with the requirements of this section.
(2) A bidder or offeror that engages in employment discussions with an official who
is subject to the restrictions of this section, knowing that the official has not complied
with paragraph (1) or (2) of subsection (a).
41 U.S.C. § 2104. Prohibition on former official’s acceptance of compensation from
contractor
(a) PROHIBITION.—A former official of a Federal agency may not accept compensation
from a contractor as an employee, officer, director, or consultant of the contractor within one
year after the official—
(1) served, when the contractor was selected or awarded a contract, as the procuring
contracting officer, the source selection authority, a member of the source selection
evaluation board, or the chief of a financial or technical evaluation team in a procurement
in which that contractor was selected for award of a contract in excess of $10,000,000;
(2) served as the program manager, deputy program manager, or administrative
contracting officer for a contract in excess of $10,000,000 awarded to that contractor; or
(3) personally made for the Federal agency a decision to—
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(A) award a contract, subcontract, modification of a contract or subcontract, or a
task order or delivery order in excess of $10,000,000 to that contractor;
(B) establish overhead or other rates applicable to one or more contracts for that
contractor that are valued in excess of $10,000,000;
(C) approve issuance of one or more contract payments in excess of $10,000,000
to that contractor; or
(D) pay or settle a claim in excess of $10,000,000 with that contractor.
(b) WHEN COMPENSATION MAY be ACCEPTED.—Subsection (a) does not prohibit a former
official of a Federal agency from accepting compensation from a division or affiliate of a
contractor that does not produce the same or similar products or services as the entity of the
contractor that is responsible for the contract referred to in paragraph (1), (2), or (3) of
subsection (a).
(c) IMPLEMENTING REGULATIONS.—Regulations implementing this section shall include
procedures for an official or former official of a Federal agency to request advice from the
appropriate designated agency ethics official regarding whether the official or former official
is or would be precluded by this section from accepting compensation from a particular
contractor.
(d) PERSONS SUBJECT TO PENALTIES.—The following are subject to the penalties and
administrative actions set forth in section 2105 of this title:
(1) A former official who knowingly accepts compensation in violation of this
section.
(2) A contractor that provides compensation to a former official knowing that the
official accepts the compensation in violation of this section.
41 U.S.C. § 2105. Penalties and administrative actions
(a) CRIMINAL PENALTIES.—A person that violates section 2102 of this title to exchange
information covered by section 2102 of this title for anything of value or to obtain or give a
person a competitive advantage in the award of a Federal agency procurement contract shall
be fined under title 18, imprisoned for not more than 5 years, or both.
(b) CIVIL PENALTIES.—The Attorney General may bring a civil action in an appropriate
district court of the United States against a person that engages in conduct that violates
section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the
evidence—
(1) an individual is liable to the Federal Government for a civil penalty of not more
than $50,000 for each violation plus twice the amount of compensation that the individual
received or offered for the prohibited conduct; and (2) an organization is liable to the
Federal Government for a civil penalty of not more than $500,000 for each violation plus
twice the amount of compensation that the organization received or offered for the
prohibited conduct.
(c) ADMINISTRATIVE ACTIONS.—
(1) TYPES OF ACTION THAT FEDERAL AGENCY MAY TAKE.—A Federal agency that
receives information that a contractor or a person has violated section 2102, 2103, or
2104 of this title shall consider taking one or more of the following actions, as
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appropriate:
(A) Canceling the Federal agency procurement, if a contract has not yet been
awarded.
(B) Rescinding a contract with respect to which—
(i) the contractor or someone acting for the contractor has been convicted for
an offense punishable under subsection (a); or
(ii) the head of the agency that awarded the contract has determined, based on
a preponderance of the evidence, that the contractor or a person acting for the
contractor has engaged in conduct constituting the offense.
(C) Initiating a suspension or debarment proceeding for the protection of the
Federal Government in accordance with procedures in the Federal Acquisition
Regulation.
(D) Initiating an adverse personnel action, pursuant to the procedures in chapter
75 of title 5 or other applicable law or regulation.
(2) AMOUNT GOVERNMENT ENTITLED TO RECOVER.—When a Federal agency rescinds
a contract pursuant to paragraph (1)(B), the Federal Government is entitled to recover, in
addition to any penalty prescribed by law, the amount expended under the contract.
(3) PRESENT RESPONSIBILITY AFFECTED BY CONDUCT.—For purposes of a suspension
or debarment proceeding initiated pursuant to paragraph (1)(C), engaging in conduct
constituting an offense under section 2102, 2103, or 2104 of this title affects the present
responsibility of a Federal Government contractor or subcontractor.
41 U.S.C. § 2106. Reporting information believed to constitute evidence of offense
A person may not file a protest against the award or proposed award of a Federal agency
procurement contract alleging a violation of section 2102, 2103, or 2104 of this title, and the
Comptroller General may not consider that allegation in deciding a protest, unless the person,
no later than 14 days after the person first discovered the possible violation, reported to the
Federal agency responsible for the procurement the information that the person believed
constitutes evidence of the offense.
41 U.S.C. § 2107. Savings provisions
This chapter does not—
(1) restrict the disclosure of information to, or its receipt by, a person or class of persons
authorized, in accordance with applicable agency regulations or procedures, to receive that
information;
(2) restrict a contractor from disclosing its own bid or proposal information or the
recipient from receiving that information;
(3) restrict the disclosure or receipt of information relating to a Federal agency
procurement after it has been canceled by the Federal agency before contract award unless
the Federal agency plans to resume the procurement;
(4) prohibit individual meetings between a Federal agency official and an offeror or
potential offeror for, or a recipient of, a contract or subcontract under a Federal agency
procurement, provided that unauthorized disclosure or receipt of contractor bid or proposal
70
information or source selection information does not occur;
(5) authorize the withholding of information from, nor restrict its receipt by, Congress, a
committee or subcommittee of Congress, the Comptroller General, a Federal agency, or an
inspector general of a Federal agency;
(6) authorize the withholding of information from, nor restrict its receipt by, the
Comptroller General in the course of a protest against the award or proposed award of a
Federal agency procurement contract; or
(7) limit the applicability of a requirement, sanction, contract penalty, or remedy
established under another law or regulation.
B. Interest of Members of Congress
41 U.S.C. § 6306. Prohibition on Members of Congress making contracts with Federal
Government
(a) IN GENERAL.—A Member of Congress may not enter into or benefit from a contract or
agreement or any part of a contract or agreement with the Federal Government.
(b) EXEMPTIONS.—
(1) IN GENERAL.—Subsection (a) does not apply to contracts that the Secretary of
Agriculture may enter into with farmers.
(2) CERTAIN ACTS.—Subsection (a) does not apply to a contract entered into under—
(A) the Agricultural Adjustment Act (7 U.S.C. 601 et seq.);
(B) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); or
(C) the Home Owners’ Loan Act (12 U.S.C. 1461 et seq.).
(3) PUBLIC RECORD.—An exemption under this subsection shall be made a matter of
public record.
C. Contracts by or with Members of Congress
18 U.S.C. § 431. Contracts by Member of Congress
Whoever, being a Member of or Delegate to Congress, or a Resident Commissioner,
either before or after he has qualified, directly or indirectly, himself, or by any other person
in trust for him, or for his use or benefit, or on his account, undertakes, executes, holds, or
enjoys, in whole or in part, any contract or agreement, made or entered into in behalf of the
United States or any agency thereof, by any officer or person authorized to make contracts on
its behalf, shall be fined under this title.
All contracts or agreements made in violation of this section shall be void; and whenever
any sum of money is advanced by the United States or any agency thereof, in consideration
of any such contract or agreement, it shall forthwith be repaid; and in case of failure or
refusal to repay the same when demanded by the proper officer of the department or agency
under whose authority such contract or agreement shall have been made or entered into, suit
shall at once be brought against the person so failing or refusing and his sureties for the
recovery of the money so advanced.
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18 U.S.C. § 432. Officer or employee contracting with Member of Congress
Whoever, being an officer or employee of the United States, on behalf of the United
States or any agency thereof, directly or indirectly makes or enters into any contract, bargain,
or agreement, with any Member of or Delegate to Congress, or any Resident Commissioner,
either before or after he has qualified, shall be fined under this title.
18 U.S.C. § 433. Exemptions with respect to certain contracts
Sections 431 and 432 of this title shall not extend to any contract or agreement made or
entered into, or accepted by any incorporated company for the general benefit of such
corporation; nor to the purchase or sale of bills of exchange or other property where the same
are ready for delivery and payment therefor is made at the time of making or entering into the
contract or agreement. Nor shall the provisions of such sections apply to advances, loans,
discounts, purchase or repurchase agreements, extensions, or renewals thereof, or
acceptances, releases or substitutions of security therefor or other contracts or agreements
made or entered into under the Reconstruction Finance Corporation Act, the Agricultural
Adjustment Act, the Federal Farm Loan Act, the Emergency Farm Mortgage Act of 1933, the
Farm Credit Act of 1933, or the Home Owners Loan Act of 1933, the Farmers' Home
Administration Act of 1946, the Bankhead-Jones Farm Tenant Act, or to crop insurance
agreements or contracts or agreements of a kind which the Secretary of Agriculture may
enter into with farmers.
Any exemption permitted by this section shall be made a matter of public record.
IV. GIFTS AND TRAVEL
A. Gifts to Federal employees
5 U.S.C. § 7353. Gifts to Federal employees
(a) Except as permitted by subsection (b), no Member of Congress or officer or employee
of the executive, legislative, or judicial branch shall solicit or accept anything of value from a
person—
(1) seeking official action from, doing business with, or (in the case of executive
branch officers and employees) conducting activities regulated by, the individual's
employing entity; or
(2) whose interests may be substantially affected by the performance or
nonperformance of the individual's official duties.
(b)(1) Each supervising ethics office is authorized to issue rules or regulations
implementing the provisions of this section and providing for such reasonable exceptions as
may be appropriate.
(2)(A) Subject to subparagraph (B), a Member, officer, or employee may accept a gift
pursuant to rules or regulations established by such individual's supervising ethics office
pursuant to paragraph (1).
(B) No gift may be accepted pursuant to subparagraph (A) in return for being
influenced in the performance of any official act.
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(3) Nothing in this section precludes a Member, officer, or employee from accepting
gifts on behalf of the United States Government or any of its agencies in accordance with
statutory authority.
(4) Nothing in this section precludes an employee of a private sector organization,
while assigned to an agency under chapter 37, from continuing to receive pay and
benefits from such organization in accordance with such chapter.
(c) A Member of Congress or an officer or employee who violates this section shall be
subject to appropriate disciplinary and other remedial action in accordance with any
applicable laws, Executive orders, and rules or regulations.
(d) For purposes of this section—
(1) the term ''supervising ethics office'' means—
(A) the Committee on Standards of Official Conduct of the House of
Representatives or the House of Representatives as a whole, for Members, officers,
and employees of the House of Representatives;
(B) the Select Committee on Ethics of the Senate, or the Senate as a whole, for
Senators, officers, and employees of the Senate;
(C) the Judicial Conference of the United States for judges and judicial branch
officers and employees;
(D) the Office of Government Ethics for all executive branch officers and
employees; and
(E) in the case of legislative branch officers and employees other than those
specified in subparagraphs (A) and (B), the committee referred to in either such
subparagraph to which reports filed by such officers and employees under title I of
the Ethics in Government Act of 1978 are transmitted under such title, except that the
authority of this section may be delegated by such committee with respect to such
officers and employees; and
(2) the term ''officer or employee'' means an individual holding an appointive or
elective position in the executive, legislative, or judicial branch of Government, other
than a Member of Congress.
5 U.S.C. § 7353 note. Limitation on the acceptance of honorary club memberships
(a) DEFINITIONS.—In this section:
(1) GIFT.—The term ''gift'' has the meaning given under section 109(5) of the Ethics
in Government Act of 1978 (5 U.S.C. App.).
(2) JUDICIAL OFFICER.—The term ''judicial officer'' has the meaning given under
section 109(10) of the Ethics in Government Act of 1978 (5 U.S.C. App.).
(b) PROHIBITION ON ACCEPTANCE OF HONORARY CLUB MEMBERSHIPS.—A judicial
officer may not accept a gift of an honorary club membership with a value of more than $50
in any calendar year.
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B. Gifts to Superiors
5 U.S.C. § 7351. Gifts to superiors
(a) An employee may not—
(1) solicit a contribution from another employee for a gift to an official superior;
(2) make a donation as a gift or give a gift to an official superior; or
(3) accept a gift from an employee receiving less pay than himself.
(b) An employee who violates this section shall be subject to appropriate disciplinary
action by the employing agency or entity.
(c) Each supervising ethics office (as defined in section 7353(d)(1)) is authorized to issue
regulations implementing this section, including regulations exempting voluntary gifts or
contributions that are given or received for special occasions such as marriage or retirement
or under other circumstances in which gifts are traditionally given or exchanged.
C. Foreign Gifts and Decorations Act
5 U.S.C. § 7342. Receipt and disposition of foreign gifts and decorations
(a) For the purpose of this section—
(1) ''employee'' means—
(A) an employee as defined by section 2105 of this title and an officer or
employee of the United States Postal Service or of the Postal Regulatory
Commission;
(B) an expert or consultant who is under contract under section 3109 of this title
with the United States or any agency, department, or establishment thereof, including,
in the case of an organization performing services under such section, any individual
involved in the performance of such services;
(C) an individual employed by, or occupying an office or position in, the
government of a territory or possession of the United States or the government of the
District of Columbia;
(D) a member of a uniformed service;
(E) the President and the Vice President;
(F) a Member of Congress as defined by section 2106 of this title (except the Vice
President) and any Delegate to the Congress; and
(G) the spouse of an individual described in subparagraphs (A) through (F)
(unless such individual and his or her spouse are separated) or a dependent (within the
meaning of section 152 of the Internal Revenue Code of 1986) of such an individual,
other than a spouse or dependent who is an employee under subparagraphs (A)
through (F);
(2) ''foreign government'' means—
(A) any unit of foreign governmental authority, including any foreign national,
State, local, and municipal government;
(B) any international or multinational organization whose membership is
composed of any unit of foreign government described in subparagraph (A); and
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(C) any agent or representative of any such unit or such organization, while acting
as such;
(3) ''gift'' means a tangible or intangible present (other than a decoration) tendered by,
or received from, a foreign government;
(4) ''decoration'' means an order, device, medal, badge, insignia, emblem, or award
tendered by, or received from, a foreign government;
(5) ''minimal value'' means a retail value in the United States at the time of acceptance
of $100 or less, except that—
(A) on January 1, 1981, and at 3 year intervals thereafter, ''minimal value'' shall be
redefined in regulations prescribed by the Administrator of General Services, in
consultation with the Secretary of State, to reflect changes in the consumer price
index for the immediately preceding 3-year period; and
(B) regulations of an employing agency may define ''minimal value'' for its
employees to be less than the value established under this paragraph; and
(6) ''employing agency'' means—
(A) the Committee on Standards of Official Conduct of the House of
Representatives, for Members and employees of the House of Representatives, except
that those responsibilities specified in subsections (c)(2)(A), (e)(1), and (g)(2)(B)
shall be carried out by the Clerk of the House;
(B) the Select Committee on Ethics of the Senate, for Senators and employees of
the Senate, except that those responsibilities (other than responsibilities involving
approval of the employing agency) specified in subsections (c)(2), (d), and (g)(2)(B)
shall be carried out by the Secretary of the Senate;
(C) the Administrative Office of the United States Courts, for judges and judicial
branch employees; and
(D) the department, agency, office, or other entity in which an employee is
employed, for other legislative branch employees and for all executive branch
employees.
(b) An employee may not—
(1) request or otherwise encourage the tender of a gift or decoration; or
(2) accept a gift or decoration, other than in accordance with the provisions of
subsections (c) and (d).
(c)(1) The Congress consents to—
(A) the accepting and retaining by an employee of a gift of minimal value
tendered and received as a souvenir or mark of courtesy; and
(B) the accepting by an employee of a gift of more than minimal value when such
gift is in the nature of an educational scholarship or medical treatment or when it
appears that to refuse the gift would likely cause offense or embarrassment or
otherwise adversely affect the foreign relations of the United States, except that—
(i) a tangible gift of more than minimal value is deemed to have been accepted
on behalf of the United States and, upon acceptance, shall become the property of
the United States; and
(ii) an employee may accept gifts of travel or expenses for travel taking place
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entirely outside the United States (such as transportation, food, and lodging) of
more than minimal value if such acceptance is appropriate, consistent with the
interests of the United States, and permitted by the employing agency and any
regulations which may be prescribed by the employing agency.
(2) Within 60 days after accepting a tangible gift of more than minimal value (other than
a gift described in paragraph (1)(B)(ii)), an employee shall—
(A) deposit the gift for disposal with his or her employing agency; or
(B) subject to the approval of the employing agency, deposit the gift with that
agency for official use.
Within 30 days after terminating the official use of a gift under subparagraph (B), the
employing agency shall forward the gift to the Administrator of General Services in
accordance with subsection (e)(1) or provide for its disposal in accordance with subsection
(e)(2).
(3) When an employee deposits a gift of more than minimal value for disposal or for
official use pursuant to paragraph (2), or within 30 days after accepting travel or travel
expenses as provided in paragraph (1)(B)(ii) unless such travel or travel expenses are
accepted in accordance with specific instructions of his or her employing agency, the
employee shall file a statement with his or her employing agency or its delegate
containing the information prescribed in subsection (f) for that gift.
(d) The Congress consents to the accepting, retaining, and wearing by an employee of a
decoration tendered in recognition of active field service in time of combat operations or
awarded for other outstanding or unusually meritorious performance, subject to the approval
of the employing agency of such employee. Without this approval, the decoration is deemed
to have been accepted on behalf of the United States, shall become the property of the United
States, and shall be deposited by the employee, within sixty days of acceptance, with the
employing agency for official use, for forwarding to the Administrator of General Services
for disposal in accordance with subsection (e)(1), or for disposal in accordance with
subsection (e)(2).
(e)(1) Except as provided in paragraph (2), gifts and decorations that have been deposited
with an employing agency for disposal shall be (A) returned to the donor, or (B) forwarded to
the Administrator of General Services for transfer, donation, or other disposal in accordance
with the provisions of subtitle I of title 40 and division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41. However, no gift or decoration that has
been deposited for disposal may be sold without the approval of the Secretary of State, upon
a determination that the sale will not adversely affect the foreign relations of the United
States. Gifts and decorations may be sold by negotiated sale.
(2) Gifts and decorations received by a Senator or an employee of the Senate that are
deposited with the Secretary of the Senate for disposal, or are deposited for an official use
which has terminated, shall be disposed of by the Commission on Arts and Antiquities of
the United States Senate. Any such gift or decoration, may be returned by the
Commission to the donor or may be transferred or donated by the Commission, subject to
such terms and conditions as it may prescribe, (A) to an agency or instrumentality of (i)
the United States, (ii) a State, territory, or possession of the United States, or a political
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subdivision of the foregoing, or (iii) the District of Columbia, or (B) to an organization
described in section 501(c)(3) of the Internal Revenue Code of 1986 which is exempt
from taxation under section 501(a) of such Code. Any such gift or decoration not
disposed of as provided in the preceding sentence shall be forwarded to the Administrator
of General Services for disposal in accordance with paragraph (1). If the Administrator
does not dispose of such gift or decoration within one year, he shall, at the request of the
Commission, return it to the Commission and the Commission may dispose of such gift
or decoration in such manner as it considers proper, except that such gift or decoration
may be sold only with the approval of the Secretary of State upon a determination that the
sale will not adversely affect the foreign relations of the United States.
(f)(1) Not later than January 31 of each year, each employing agency or its delegate shall
compile a listing of all statements filed during the preceding year by the employees of that
agency pursuant to subsection (c)(3) and shall transmit such listing to the Secretary of State
who shall publish a comprehensive listing of all such statements in the Federal Register.
(2) Such listings shall include for each tangible gift reported—
(A) the name and position of the employee;
(B) a brief description of the gift and the circumstances justifying acceptance;
(C) the identity, if known, of the foreign government and the name and position of
the individual who presented the gift;
(D) the date of acceptance of the gift;
(E) the estimated value in the United States of the gift at the time of acceptance;
and
(F) disposition or current location of the gift.
(3) Such listings shall include for each gift of travel or travel expenses—
(A) the name and position of the employee;
(B) a brief description of the gift and the circumstances justifying acceptance; and
(C) the identity, if known, of the foreign government and the name and position of
the individual who presented the gift.
(4)(A) In transmitting such listings for an element of the intelligence community, the
head of such element may delete the information described in subparagraph (A) or (C) of
paragraph (2) or in subparagraph (A) or (C) of paragraph (3) if the head of such element
certifies in writing to the Secretary of State that the publication of such information could
adversely affect United States intelligence sources or methods.
(B) Any information not provided to the Secretary of State pursuant to the
authority in subparagraph (A) shall be transmitted to the Director of National
Intelligence who shall keep a record of such information.
(C) In this paragraph, the term “intelligence community” has the meaning given
that term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(g)(1) Each employing agency shall prescribe such regulations as may be necessary to
carry out the purpose of this section. For all employing agencies in the executive branch,
such regulations shall be prescribed pursuant to guidance provided by the Secretary of State.
These regulations shall be implemented by each employing agency for its employees.
(2) Each employing agency shall—
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(A) report to the Attorney General cases in which there is reason to believe that an
employee has violated this section;
(B) establish a procedure for obtaining an appraisal, when necessary, of the value
of gifts; and
(C) take any other actions necessary to carry out the purpose of this section.
(h) The Attorney General may bring a civil action in any district court of the United
States against any employee who knowingly solicits or accepts a gift from a foreign
government not consented to by this section or who fails to deposit or report such gift as
required by this section. The court in which such action is brought may assess a penalty
against such employee in any amount not to exceed the retail value of the gift improperly
solicited or received plus $5,000.
(i) The President shall direct all Chiefs of a United States Diplomatic Mission to inform
their host governments that it is a general policy of the United States Government to prohibit
United States Government employees from receiving gifts or decorations of more than
minimal value.
(j) Nothing in this section shall be construed to derogate any regulation prescribed by any
employing agency which provides for more stringent limitations on the receipt of gifts and
decorations by its employees.
(k) The provisions of this section do not apply to grants and other forms of assistance to
which section 108A of the Mutual Educational and Cultural Exchange Act of 1961 applies.
D. Mutual Educational and Cultural Exchange Act
22 U.S.C. § 2458a. Federal employee participation in cultural exchange programs
(a) GRANTS AND OTHER FOREIGN GOVERNMENT ASSISTANCE; FAMILY OR HOUSEHOLD
EXPENSE ASSISTANCE PROHIBITED; "FEDERAL EMPLOYEE'' DEFINED
(1) Congress consents to the acceptance by a Federal employee of grants and other
forms of assistance provided by a foreign government to facilitate the participation of
such Federal employee in a cultural exchange—
(A) which is of the type described in section 2452(a)(2)(i) of this title,
(B) which is conducted for a purpose comparable to the purpose stated in section
2451 of this title, and
(C) which is specifically approved by the Secretary of State for purposes of this
section;
but the Congress does not consent to the acceptance by any Federal employee of any
portion of any such grant or other form of assistance which provides assistance with
respect to any expenses incurred by or for any member of the family or household of such
Federal employee.
(2) For purposes of this section, the term ''Federal employee'' means any employee as
defined in subparagraphs (A) through (F) of section 7342(a)(1) of Title 5, but does not
include a person described in subparagraph (G) of such section.
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(b) FOREIGN GRANTS AND OTHER ASSISTANCE NOT GIFTS FOR PURPOSES OF SECTION
OF TITLE 5
7342
The grants and other forms of assistance with respect to which the consent of Congress is
given in subsection (a) of this section shall not constitute gifts for purposes of section 7342 of
Title 5.
(c) REGULATIONS
The Secretary of State is authorized to promulgate regulations for purposes of this
section.
E. Acceptance of Travel and Related Expenses from Non-Federal Sources
31 U.S.C. § 1353. Acceptance of travel and related expenses from non-Federal sources
(a) Notwithstanding any other provision of law, the Administrator of General Services, in
consultation with the Director of the Office of Government Ethics, shall prescribe by
regulation the conditions under which an agency in the executive branch (including an
independent agency) may accept payment, or authorize an employee of such agency to accept
payment on the agency's behalf, from non-Federal sources for travel, subsistence, and related
expenses with respect to attendance of the employee (or the spouse of such employee) at any
meeting or similar function relating to the official duties of the employee. Any cash payment
so accepted shall be credited to the appropriation applicable to such expenses. In the case of
a payment in kind so accepted, a pro rata reduction shall be made in any entitlement of the
employee to payment from the Government for such expenses.
(b) Except as provided in this section or section 4111 or 7342 of title 5, an agency or
employee may not accept payment for expenses referred to in subsection (a). An employee
who accepts any payment in violation of the preceding sentence—
(1) may be required, in addition to any penalty provided by law, to repay, for deposit
in the general fund of the Treasury, an amount equal to the amount of the payment so
accepted; and
(2) in the case of a repayment under paragraph (1), shall not be entitled to any
payment from the Government for such expenses.
(c) As used in this section—
(1) the term ''executive branch'' means all executive agencies (as such term is defined
in section 105 of title 5); and
(2) the term ''employee in the executive branch'' means—
(A) an appointed officer or employee in the executive branch; and
(B) an expert or consultant in the executive branch, under section 3109 of title 5;
and
(3) the term ''payment'' means a payment or reimbursement, in cash or in kind.
(d)(1) The head of each agency of the executive branch shall, in the manner provided in
paragraph (2), submit to the Director of the Office of Government Ethics reports of payments
of more than $250 accepted under this section with respect to employees of the agency. The
Director shall make such reports available for public inspection and copying.
(2) The reports required by paragraph (1) shall, with respect to each payment—
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(A) specify the amount and method of payment, the name of the person making
the payment, the name of the employee, the nature of the meeting or similar function,
the time and place of travel, the nature of the expenses, and such other information as
the Administrator of General Services may prescribe by regulation under subsection
(a);
(B) be submitted not later than May 31 of each year with respect to payments in
the preceding period beginning on October 1 and ending on March 31; and
(C) be submitted not later than November 30 of each year with respect to
payments in the preceding period beginning on April 1 and ending on September 30.
F. Acceptance of Contributions, Awards, and Other Payments
5 U.S.C. § 4111. Acceptance of contributions, awards, and other payments
(a) To the extent authorized by regulation of the President, contributions and awards
incident to training in non-Government facilities, and payment of travel, subsistence, and
other expenses incident to attendance at meetings, may be made to and accepted by an
employee, without regard to section 209 of title 18, if the contributions, awards, and
payments are made by an organization determined by the Secretary of the Treasury to be an
organization described by section 501(c)(3) of title 26 which is exempt from taxation under
section 501(a) of title 26.
(b) When a contribution, award, or payment, in cash or in kind, is made to an employee
for travel, subsistence, or other expenses under subsection (a) of this section, an appropriate
reduction, under regulations of the President, shall be made from payment by the
Government to the employee for travel, subsistence, or other expenses incident to training in
a non-Government facility or to attendance at a meeting.
V. EMPLOYMENT
A. Nepotism
5 U.S.C. § 3110. Employment of relatives; restrictions
(a) For the purpose of this section—
(1) agency means—
(A) an Executive agency;
(B) an office, agency, or other establishment in the legislative branch;
(C) an office, agency, or other establishment in the judicial branch; and
(D) the government of the District of Columbia;
(2) ''public official'' means an officer (including the President and a Member of
Congress), a member of the uniformed service, an employee and any other individual, in
whom is vested the authority by law, rule, or regulation, or to whom the authority has
been delegated, to appoint, employ, promote, or advance individuals, or to recommend
individuals for appointment, employment, promotion, or advancement in connection with
employment in an agency; and
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(3) ''relative'' means, with respect to a public official, an individual who is related to
the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first
cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughterin-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter,
stepbrother, stepsister, half brother, or half sister.
(b) A public official may not appoint, employ, promote, advance, or advocate for
appointment, employment, promotion, or advancement, in or to a civilian position in the
agency in which he is serving or over which he exercises jurisdiction or control any
individual who is a relative of the public official. An individual may not be appointed,
employed, promoted, or advanced in or to a civilian position in an agency if such
appointment, employment, promotion, or advancement has been advocated by a public
official, serving in or exercising jurisdiction or control over the agency, who is a relative of
the individual.
(c) An individual appointed, employed, promoted, or advanced in violation of this section
is not entitled to pay, and money may not be paid from the Treasury as pay to an individual
so appointed, employed, promoted, or advanced.
(d) The Office of Personnel Management may prescribe regulations authorizing the
temporary employment, in the event of emergencies resulting from natural disasters or
similar unforeseen events or circumstances, of individuals whose employment would
otherwise be prohibited by this section.
(e) This section shall not be construed to prohibit the appointment of an individual who is
a preference eligible in any case in which the passing over of that individual on a certificate
of eligibles furnished under section 3317(a) of this title will result in the selection for
appointment of an individual who is not a preference eligible.
B. Recommendations for Employment by Members of Congress
5 U.S.C. § 3303. Competitive service; recommendations of Senators or Representatives
An individual concerned in examining an applicant for or appointing him in the
competitive service may not receive or consider a recommendation of the applicant by a
Senator or Representative, except as to the character or residence of the applicant.
C. Dual Pay and Division of Salary or Duties
5 U.S.C. § 5533. Dual pay from more than one position; limitations; exceptions
(a) Except as provided by subsections (b), (c), and (d) of this section, an individual is not
entitled to receive basic pay from more than one position for more than an aggregate of 40
hours of work in one calendar week (Sunday through Saturday).
(b) Except as otherwise provided by subsection (c) of this section, the Office of Personnel
Management, subject to the supervision and control of the President, may prescribe
regulations under which exceptions may be made to the restrictions in subsection (a) of this
section when appropriate authority determines that the exceptions are warranted because
personal services otherwise cannot be readily obtained.
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(c)(1) Unless otherwise authorized by law and except as otherwise provided by paragraph
(2) or (4) of this subsection, appropriated funds are not available for payment to an individual
of pay from more than one position if the pay of one of the positions is paid by the Secretary
of the Senate, the Chief Administrative Officer of the House of Representatives, or the Chief
of the Capitol Police, or one of the positions is under the Office of the Architect of the
Capitol, and if the aggregate gross pay from the positions exceeds $7,724 a year ($10,540, in
the case of pay disbursed by the Secretary of the Senate).
(2) Notwithstanding paragraph (1) of this subsection, appropriated funds are not
available for payment to an individual of pay from more than one position, for each of
which the pay is disbursed by the Chief Administrative Officer of the House of
Representatives or the Chief of the Capitol Police, if the aggregate gross pay from those
positions exceeds the maximum per annum gross rate of pay authorized to be paid to an
employee out of the clerk hire allowance of a Member of the House.
(3) For the purposes of this subsection, ''gross pay'' means the annual rate of pay (or
equivalent thereof in the case of an individual paid on other than an annual basis)
received by an individual.
(4) Paragraph (1) of this subsection does not apply to pay on a when-actuallyemployed basis received from more than one consultant or expert position if the pay is
not received for the same day.
(d) Subsection (a) of this section does not apply to—
(1) pay on a when-actually-employed basis received from more than one consultant or
expert position if the pay is not received for the same hours of the same day;
(2) pay consisting of fees paid on other than a time basis;
(3) pay received by a teacher of the public schools of the District of Columbia for
employment in a position during the summer vacation period;
(4) pay paid by the Tennessee Valley Authority to an employee performing part-time
or intermittent work in addition to his normal duties when the Authority considers it to be
in the interest of efficiency and economy;
(5) pay received by an individual holding a position—
(A) the pay of which is paid by the Secretary of the Senate, the Chief
Administrative Officer of the House of Representatives, or the Chief of the Capitol
Police; or
(B) under the Architect of the Capitol;
(6) pay paid by the United States Coast Guard to an employee occupying a part-time
position of lamplighter; and
(7) pay within the purview of any of the following statutes:
(A) section 162 of title 2;
(B) section 23(b) of title 13;
(C) section 327 of title 15;
(D) section 907 of title 20;
(E) section 873 of title 33; or
(F) section 631 or 631a of title 31, District of Columbia Code.
(e)(1) This section does not apply to an individual employed under sections 174j-1 to
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174j-7 or 174k of title 40.
(2) Subsection (c) of this section does not apply to pay received by a teacher of the
public schools of the District of Columbia for employment in a position during the
summer vacation period.
VI. GOVERNMENT PROPERTY AND INFORMATION
A. Government Property
18 U.S.C. § 641. Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of
another, or without authority, sells, conveys or disposes of any record, voucher, money, or
thing of value of the United States or of any department or agency thereof, or any property
made or being made under contract for the United States or any department or agency
thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or
gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both; but if the
value of such property in the aggregate, combining amounts from all the counts for which the
defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined
under this title or imprisoned not more than one year, or both.
The word ''value'' means face, par, or market value, or cost price, either wholesale or
retail, whichever is greater.
18 U.S.C. § 1719. Franking privilege
Whoever makes use of any official envelope, label, or indorsement 25 authorized by law, to
avoid the payment of postage or registry fee on his private letter, packet, package, or other
matter in the mail, shall be fined under this title.
18 U.S.C. § 1913. Lobbying with appropriated moneys
No part of the money appropriated by any enactment of Congress shall, in the absence of
express authorization by Congress, be used directly or indirectly to pay for any personal
service, advertisement, telegram, telephone, letter, printed or written matter, or other device,
intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an
official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation,
law, ratification, policy or appropriation, whether before or after the introduction of any bill,
measure, or resolution proposing such legislation, law, ratification, policy, or appropriation;
but this shall not prevent officers or employees of the United States or of its departments or
agencies from communicating to any such Member or official, at his request, or to Congress
or such official, through the proper official channels, requests for any legislation, law,
ratification, policy or appropriations which they deem necessary for the efficient conduct of
25
So in original. Probably should be endorsement.
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the public business, or from making any communication whose prohibition by this section
might, in the opinion of the Attorney General, violate the Constitution or interfere with the
conduct of foreign policy, counter-intelligence, intelligence, or national security activities.
Violations of this section shall constitute violations of section 1352(a) of title 31.
31 U.S.C. § 1344. Passenger carrier use
(a)(1) Funds available to a Federal agency, by appropriation or otherwise, may be
expended by the Federal agency for the maintenance, operation, or repair of any passenger
carrier only to the extent that such carrier is used to provide transportation for official
purposes. Notwithstanding any other provision of law, transporting any individual other than
the individuals listed in subsections (b) and (c) of this section between such individual's
residence and such individual's place of employment is not transportation for an official
purpose.
(2) For purposes of paragraph (1), transportation between the residence of an officer
or employee and various locations that is (A) required for the performance of field work, in accordance with regulations
prescribed pursuant to subsection (e) of this section, or
(B) essential for the safe and efficient performance of intelligence,
counterintelligence, protective services, or criminal law enforcement duties, is
transportation for an official purpose, when approved in writing by the head of the
Federal agency.
(3) For purposes of paragraph (1), the transportation of an individual between such
individual's place of employment and a mass transit facility pursuant to subsection (g) is
transportation for an official purpose.
(b) A passenger carrier may be used to transport between residence and place of
employment the following officers and employees of Federal agencies:
(1)(A) the President and the Vice President;
(B) no more than 6 officers or employees in the Executive Office of the President,
as designated by the President; and
(C) no more than 10 additional officers or employees of Federal agencies, as
designated by the President;
(2) the Chief Justice and the Associate Justices of the Supreme Court;
(3)(A) officers compensated at Level I of the Executive Schedule pursuant to section
5312 of title 5; and
(B) a single principal deputy to an officer described in subclause (A) of this
clause, when a determination is made by such officer that such transportation is
appropriate;
(4) principal diplomatic and consular officials abroad, and the United States
Ambassador to the United Nations;
(5) the Deputy Secretary of Defense and Under Secretaries of Defense, the Secretary
of the Air Force, the Secretary of the Army, the Secretary of the Navy, the members and
Vice Chairman of the Joint Chiefs of Staff, and the Commandant of the Coast Guard;
(6) the Director of the Central Intelligence Agency, the Director of the Federal
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Bureau of Investigation, Director of the Bureau of Alcohol, Tobacco, Firearms and
Explosives the Administrator of the Drug Enforcement Administration, and the
Administrator of the National Aeronautics and Space Administration;
(7) the Chairman of the Board of Governors of the Federal Reserve System;
(8) the Comptroller General of the United States and the Postmaster General of the
United States; and
(9) an officer or employee with regard to whom the head of a Federal agency makes a
determination, in accordance with subsection (d) of this section and with regulations
prescribed pursuant to paragraph (1) of subsection (e), that highly unusual circumstances
present a clear and present danger, that an emergency exists, or that other compelling
operational considerations make such transportation essential to the conduct of official
business.
Except as provided in paragraph (2) of subsection (d), any authorization made pursuant to
clause (9) of this subsection to permit the use of a passenger carrier to transport an officer or
employee between residence and place of employment shall be effective for not more than 15
calendar days.
(c) A passenger carrier may be used to transport between residence and place of
employment any person for whom protection is specifically authorized pursuant to section
3056(a) of title 18 or for whom transportation is authorized pursuant to section 28 of the
State Department Basic Authorities Act of 1956, section 2637 of title 10, or section 8(a)(1) of
the Central Intelligence Agency Act of 1949.
(d)(1) Any determination made under subsection (b)(9) of this section shall be in writing
and shall include the name and title of the officer or employee affected, the reason for such
determination, and the duration of the authorization for such officer or employee to use a
passenger carrier for transportation between residence and place of employment.
(2) If a clear and present danger, an emergency, or a compelling operational
consideration described in subsection (b)(9) of this section extends or may extend for a
period in excess of 15 calendar days, the head of the Federal agency shall determine
whether an authorization under such paragraph shall be extended in excess of 15 calendar
days for a period of not more than 90 additional calendar days. Determinations made
under this paragraph may be reviewed by the head of such agency at the end of each such
period, and, where appropriate, a subsequent determination may be made whether such
danger, emergency, or consideration continues to exist and whether an additional
extension, not to exceed 90 calendar days, may be authorized. Determinations made
under this paragraph shall be in accordance with regulations prescribed pursuant to
paragraph (1) of subsection (e).
(3) The authority to make designations under subsection (b)(1) of this section and to
make determinations pursuant to subsections (a)(2) and (b)(3)(B) and (9) of this section
and pursuant to paragraph (2) of this subsection may not be delegated, except that, with
respect to the Executive Office of the President, the President may delegate the authority
of the President under subsection (b)(9) of this section to an officer in the Executive
Office of the President. No designation or determination under this section may be made
solely or principally for the comfort or convenience of the officer or employee.
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(4) Notification of each designation or determination made under subsection (b)(1),
(3)(B), and (9) of this section and under paragraph (2) of this subsection, including the
name and title of the officer or employee affected, the reason for any determination
under subsection (b)(9), and the expected duration of any authorization under subsection
(b)(9), shall be transmitted promptly to the Committee on Government Operations of the
House of Representatives and the Committee on Governmental Affairs of the Senate.
(e)(1) Not later than March 15, 1987, the Administrator of General Services, after
consultation with the Comptroller General, the Director of the Office of Management and
Budget, and the Director of the Administrative Office of the United States Courts, shall
promulgate regulations governing the heads of all Federal agencies in making the
determinations authorized by subsections (a)(2)(A), (b)(9), and (d)(2) of this section. Such
regulations shall specify that the comfort and convenience of an officer or employee is not
sufficient justification for authorizations of transportation under this section.
(2) In promulgating regulations under paragraph (1) of this subsection, the
Administrator of General Services shall provide criteria defining the term "field work"
for purposes of subsection (a)(2)(A) of this section. Such criteria shall ensure that
transportation between an employee's residence and the location of the field work will be
authorized only to the extent that such transportation will substantially increase the
efficiency and economy of the Government.
(f) Each Federal agency shall maintain logs or other records necessary to establish the
official purpose for Government transportation provided between an individual's residence
and such individual's place of employment pursuant to this section.
(g)(1) If and to the extent that the head of a Federal agency, in his or her sole discretion,
deems it appropriate, a passenger carrier may be used to transport an officer or employee of a
Federal agency between the officer's or employee's place of employment and a mass transit
facility (whether or not publicly owned) in accordance with succeeding provisions of this
subsection.
(2) Notwithstanding section 1343, a Federal agency that provides transportation
services under this subsection (including by passenger carrier) may absorb the costs of such
services using any funds available to such agency, whether by appropriation or otherwise.
(3) In carrying out this subsection, a Federal agency, to the maximum extent
practicable and consistent with sound budget policy, should (A) use alternative fuel vehicles for the provision of transportation services;
(B) to the extent consistent with the purposes of this subsection, provide
transportation services in a manner that does not result in additional gross income for
Federal income tax purposes; and
(C) coordinate with other Federal agencies to share, and otherwise avoid
duplication of, transportation services provided under this subsection.
(4) For purposes of any determination under chapter 81 of title 5 or chapter 171 of
title 28, an individual shall not be considered to be in the "performance of duty" or
"acting within the scope of his or her office or employment" by virtue of the fact that
such individual is receiving transportation services under this subsection. Nor shall any
time during which an individual uses such services be considered when calculating the
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hours of work or employment for that individual for purposes of title 5 of the United
States Code, including chapter 55 of that title.
(5)(A) The Administrator of General Services, after consultation with the appropriate
agencies, shall prescribe any regulations necessary to carry out this subsection.
(B) Transportation services under this subsection shall be subject neither to the
last sentence of subsection (d)(3) nor to any regulations under the last sentence of
subsection (e)(1).
(6) In this subsection, the term "passenger carrier" means a passenger motor vehicle
or similar means of transportation that is owned, leased, or provided pursuant to contract
by the United States Government.
(h) As used in this section (1) the term "passenger carrier" means a passenger motor vehicle, aircraft,
boat, ship, or other similar means of transportation that is owned or leased by the United
States Government; and
(2) the term "Federal agency" means (A) a department—
(i) including independent establishments, other agencies, and wholly owned
Government corporations; but
(ii) not including the Senate, House of Representatives, or Architect of the
Capitol, or the officers or employees thereof;
(B) an Executive department (as such term is defined in section 101 of title 5);
(C) a military department (as such term is defined in section 102 of title 5);
(D) a Government corporation (as such term is defined in section 103(1) of title
5);
(E) a Government controlled corporation (as such term is defined in section
103(2) of title 5);
(F) a mixed-ownership Government corporation (as such term is defined in
section 9101(2) of this title);
(G) any establishment in the executive branch of the Government (including the
Executive Office of the President);
(H) any independent regulatory agency (including an independent regulatory
agency specified in section 3502(10) of title 44);
(I) the Smithsonian Institution; and
(J) any nonappropriated fund instrumentality of the United States, except that
such term does not include the government of the District of Columbia.
(i) Notwithstanding section 410(a) of title 39, this section applies to the United States
Postal Service.
B. Information
18 U.S.C. § 798. Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise
makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to
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the safety or interest of the United States or for the benefit of any foreign government to the
detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic
system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device,
apparatus, or appliance used or prepared or planned for use by the United States or any
foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any
foreign government; or
(4) obtained by the processes of communication intelligence from the
communications of any foreign government, knowing the same to have been obtained by
such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
(b) As used in subsection (a) of this section—
The term ''classified information'' means information which, at the time of a violation
of this section, is, for reasons of national security, specifically designated by a United
States Government Agency for limited or restricted dissemination or distribution;
The terms ''code,'' ''cipher,'' and ''cryptographic system'' include in their meanings, in
addition to their usual meanings, any method of secret writing and any mechanical or
electrical device or method used for the purpose of disguising or concealing the contents,
significance, or meanings of communications;
The term ''foreign government'' includes in its meaning any person or persons acting
or purporting to act for or on behalf of any faction, party, department, agency, bureau, or
military force of or within a foreign country, or for or on behalf of any government or any
person or persons purporting to act as a government within a foreign country, whether or
not such government is recognized by the United States;
The term ''communication intelligence'' means all procedures and methods used in the
interception of communications and the obtaining of information from such
communications by other than the intended recipients;
The term ''unauthorized person'' means any person who, or agency which, is not
authorized to receive information of the categories set forth in subsection (a) of this
section, by the President, or by the head of a department or agency of the United States
Government which is expressly designated by the President to engage in communication
intelligence activities for the United States.
(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of
information to any regularly constituted committee of the Senate or House of Representatives
of the United States of America, or joint committee thereof.
(d)(1) Any person convicted of a violation of this section shall forfeit to the United States
irrespective of any provision of State law—
(A) any property constituting, or derived from, any proceeds the person obtained,
directly or indirectly, as the result of such violation; and
(B) any of the person's property used, or intended to be used, in any manner or
part, to commit, or to facilitate the commission of, such violation.
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(2) The court, in imposing sentence on a defendant for a conviction of a violation of
this section, shall order that the defendant forfeit to the United States all property
described in paragraph (1).
(3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e)
through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 U.S.C. 853(b), (c), and (e)-(p)), shall apply to—
(A) property subject to forfeiture under this subsection;
(B) any seizure or disposition of such property; and
(C) any administrative or judicial proceeding in relation to such property,
if not inconsistent with this subsection.
(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime
Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42
U.S.C. 10601) all amounts from the forfeiture of property under this subsection
remaining after the payment of expenses for forfeiture and sale authorized by law.
(5) As used in this subsection, the term ''State'' means any State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
18 U.S.C. § 1905. Disclosure of confidential information generally
Whoever, being an officer or employee of the United States or of any department or
agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent
of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 13111314), or being an employee of a private sector organization who is or was assigned to an
agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any
manner or to any extent not authorized by law any information coming to him in the course
of his employment or official duties or by reason of any examination or investigation made
by, or return, report or record made to or filed with, such department or agency or officer or
employee thereof, which information concerns or relates to the trade secrets, processes,
operations, style of work, or apparatus, or to the identity, confidential statistical data, amount
or source of any income, profits, losses, or expenditures of any person, firm, partnership,
corporation, or association; or permits any income return or copy thereof or any book
containing any abstract or particulars thereof to be seen or examined by any person except as
provided by law; shall be fined under this title, or imprisoned not more than one year, or
both; and shall be removed from office or employment.
50 U.S.C. § 783(a). Offenses; communication of classified information by Government
officer or employee
It shall be unlawful for any officer or employee of the United States or of any department
or agency thereof, or of any corporation the stock of which is owned in whole or in major
part by the United States or any department or agency thereof, to communicate in any
manner or by any means, to any other person whom such officer or employee knows or has
reason to believe to be an agent or representative of any foreign government, any information
of a kind which shall have been classified by the President (or by the head of any such
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department, agency, or corporation with the approval of the President) as affecting the
security of the United States, knowing or having reason to know that such information has
been so classified, unless such officer or employee shall have been specifically authorized by
the President, or by the head of the department, agency, or corporation by which this officer
or employee is employed, to make such disclosure of such information.
VII. TAXES IN CERTAIN MATTERS
A. Self-Dealings With Foundations
26 U.S.C. § 4941. Taxes on self-dealing
(a) INITIAL TAXES.—
(1) ON SELF-DEALER.—There is hereby imposed a tax on each act of self-dealing
between a disqualified person and a private foundation. The rate of tax shall be equal to
10 percent of the amount involved with respect to the act of self-dealing for each year (or
part thereof) in the taxable period. The tax imposed by this paragraph shall be paid by
any disqualified person (other than a foundation manager acting only as such) who
participates in the act of self-dealing. In the case of a government official (as defined in
section 4946(c)), a tax shall be imposed by this paragraph only if such disqualified person
participates in the act of self-dealing knowing that it is such an act.
(2) ON FOUNDATION MANAGER.—In any case in which a tax is imposed by paragraph
(1), there is hereby imposed on the participation of any foundation manager in an act of
self-dealing between a disqualified person and a private foundation, knowing that it is
such an act, a tax equal to 5 percent of the amount involved with respect to the act of selfdealing for each year (or part thereof) in the taxable period, unless such participation is
not willful and is due to reasonable cause. The tax imposed by this paragraph shall be
paid by any foundation manager who participated in the act of self-dealing.
(b) ADDITIONAL TAXES.—
(1) ON SELF-DEALER.—In any case in which an initial tax is imposed by subsection
(a)(1) on an act of self-dealing by a disqualified person with a private foundation and the
act is not corrected within the taxable period, there is hereby imposed a tax equal to 200
percent of the amount involved. The tax imposed by this paragraph shall be paid by any
disqualified person (other than a foundation manager acting only as such) who
participated in the act of self-dealing.
(2) ON FOUNDATION MANAGER.—In any case in which an additional tax is imposed by
paragraph (1), if a foundation manager refused to agree to part or all of the correction,
there is hereby imposed a tax equal to 50 percent of the amount involved. The tax
imposed by this paragraph shall be paid by any foundation manager who refused to agree
to part or all of the correction.
(c) SPECIAL RULES.—For purposes of subsections (a) and (b)—
(1) JOINT AND SEVERAL LIABILITY.—If more than one person is liable under any
paragraph of subsection (a) or (b) with respect to any one act of self-dealing, all such
persons shall be jointly and severally liable under such paragraph with respect to such
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act.
(2) $20,000 LIMIT FOR MANAGEMENT.—With respect to any one act of self- dealing,
the maximum amount of the tax imposed by subsection (a)(2) shall not exceed $20,000,
and the maximum amount of the tax imposed by subsection (b)(2) shall not exceed
$20,000.
(d) SELF-DEALING.—
(1) IN GENERAL.—For purposes of this section, the term ''self-dealing'' means any
direct or indirect—
(A) sale or exchange, or leasing, of property between a private foundation and a
disqualified person;
(B) lending of money or other extension of credit between a private foundation
and a disqualified person;
(C) furnishing of goods, services, or facilities between a private foundation and a
disqualified person;
(D) payment of compensation (or payment or reimbursement of expenses) by a
private foundation to a disqualified person;
(E) transfer to, or use by or for the benefit of, a disqualified person of the income
or assets of a private foundation; and
(F) agreement by a private foundation to make any payment of money or other
property to a government official (as defined in section 4946(c)), other than an
agreement to employ such individual for any period after the termination of his
government service if such individual is terminating his government service within a
90-day period.
(2) SPECIAL RULES.—For purposes of paragraph (1)—
(A) the transfer of real or personal property by a disqualified person to a private
foundation shall be treated as a sale or exchange if the property is subject to a
mortgage or similar lien which the foundation assumes or if it is subject to a mortgage
or similar lien which a disqualified person placed on the property within the 10-year
period ending on the date of the transfer;
(B) the lending of money by a disqualified person to a private foundation shall not
be an act of self-dealing if the loan is without interest or other charge (determined
without regard to section 7872) and if the proceeds of the loan are used exclusively
for purposes specified in section 501(c)(3);
(C) the furnishing of goods, services, or facilities by a disqualified person to a
private foundation shall not be an act of self-dealing if the furnishing is without
charge and if the goods, services, or facilities so furnished are used exclusively for
purposes specified in section 501(c)(3);
(D) the furnishing of goods, services, or facilities by a private foundation to a
disqualified person shall not be an act of self-dealing if such furnishing is made on a
basis no more favorable than that on which such goods, services, or facilities are
made available to the general public;
(E) except in the case of a government official (as defined in section 4946(c)), the
payment of compensation (and the payment or reimbursement of expenses) by a
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private foundation to a disqualified person for personal services which are reasonable
and necessary to carrying out the exempt purpose of the private foundation shall not
be an act of self-dealing if the compensation (or payment or reimbursement) is not
excessive;
(F) any transaction between a private foundation and a corporation which is a
disqualified person (as defined in section 4946(a)), pursuant to any liquidation,
merger, redemption, recapitalization, or other corporate adjustment, organization, or
reorganization, shall not be an act of self-dealing if all of the securities of the same
class as that held by the foundation are subject to the same terms and such terms
provide for receipt by the foundation of no less than fair market value;
(G) in the case of a government official (as defined in section 4946(c)), paragraph
(1) shall in addition not apply to—
(i) prizes and awards which are subject to the provisions of section 74(b)
(without regard to paragraph (3) thereof), if the recipients of such prizes and
awards are selected from the general public,
(ii) scholarships and fellowship grants which would be subject to the
provisions of section 117(a) (as in effect on the day before the date of the
enactment of the Tax Reform Act of 1986) and are to be used for study at an
educational organization described in section 170(b)(1)(A)(ii),
(iii) any annuity or other payment (forming part of a stock-bonus, pension, or
profit-sharing plan) by a trust which is a qualified trust under section 401,
(iv) any annuity or other payment under a plan which meets the requirements
of section 404(a)(2),
(v) any contribution or gift (other than a contribution or gift of money) to, or
services or facilities made available to, any such individual, if the aggregate value
of such contributions, gifts, services, and facilities to, or made available to, such
individual during any calendar year does not exceed $25,
(vi) any payment made under chapter 41 of title 5, United States Code, or
(vii) any payment or reimbursement of traveling expenses for travel solely
from one point in the United States to another point in the United States, but only
if such payment or reimbursement does not exceed the actual cost of the
transportation involved plus an amount for all other traveling expenses not in
excess of 125 percent of the maximum amount payable under section 5702 of title
5, United States Code, for like travel by employees of the United States; and
(H) the leasing by a disqualified person to a private foundation of office space for
use by the foundation in a building with other tenants who are not disqualified
persons shall not be treated as an act of self-dealing if—
(i) such leasing of office space is pursuant to a binding lease which was in
effect on October 9, 1969, or pursuant to renewals of such a lease;
(ii) the execution of such lease was not a prohibited transaction (within the
meaning of section 503(b) or any corresponding provision of prior law) at the
time of such execution; and
(iii) the terms of the lease (or any renewal) reflect an arm's-length transaction.
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(e) OTHER DEFINITIONS.—For purposes of this section—
(1) TAXABLE PERIOD.—The term ''taxable period'' means, with respect to any act of
self-dealing, the period beginning with the date on which the act of self-dealing occurs
and ending on the earliest of—
(A) the date of mailing a notice of deficiency with respect to the tax imposed by
subsection (a)(1) under section 6212,
(B) the date on which the tax imposed by subsection (a)(1) is assessed, or
(C) the date on which correction of the act of self-dealing is completed.
(2) AMOUNT INVOLVED.—The term ''amount involved'' means, with respect to any act
of self-dealing, the greater of the amount of money and the fair market value of the other
property given or the amount of money and the fair market value of the other property
received; except that, in the case of services described in subsection (d)(2)(E), the amount
involved shall be only the excess compensation. For purposes of the preceding sentence,
the fair market value—
(A) in the case of the taxes imposed by subsection (a), shall be determined as of
the date on which the act of self-dealing occurs; and
(B) in the case of the taxes imposed by subsection (b), shall be the highest fair
market value during the taxable period.
(3) CORRECTION.—The terms ''correction'' and ''correct'' mean, with respect to any act
of self-dealing, undoing the transaction to the extent possible, but in any case placing the
private foundation in a financial position not worse than that in which it would be if the
disqualified person were dealing under the highest fiduciary standards.
26 U.S.C. § 4946. Definitions and special rules
(a) DISQUALIFIED PERSON.—
(1) IN GENERAL.—For purposes of this subchapter, the term ''disqualified person''
means, with respect to a private foundation, a person who is—
(A) a substantial contributor to the foundation,
(B) a foundation manager (within the meaning of subsection (b)(1)),
(C) an owner of more than 20 percent of—
(i) the total combined voting power of a corporation,
(ii) the profits interest of a partnership, or
(iii) the beneficial interest of a trust or unincorporated enterprise,
which is a substantial contributor to the foundation,
(D) a member of the family (as defined in subsection (d)) of any individual
described in subparagraph (A), (B), or (C),
(E) a corporation of which persons described in subparagraph (A), (B), (C), or (D)
own more than 35 percent of the total combined voting power,
(F) a partnership in which persons described in subparagraph (A), (B), (C), or (D)
own more than 35 percent of the profits interest,
(G) a trust or estate in which persons described in subparagraph (A), (B), (C), or
(D) hold more than 35 percent of the beneficial interest,
(H) only for purposes of section 4943, a private foundation—
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(i) which is effectively controlled (directly or indirectly) by the same person
or persons who control the private foundation in question, or
(ii) substantially all of the contributions to which were made (directly or
indirectly) by the same person or persons described in subparagraph (A), (B), or
(C), or members of their families (within the meaning of subsection (d)), who
made (directly or indirectly) substantially all of the contributions to the private
foundation in question, and
(I) only for purposes of section 4941, a government official (as defined in
subsection (c)).
(2) SUBSTANTIAL CONTRIBUTORS.—For purposes of paragraph (1), the term
''substantial contributor'' means a person who is described in section 507(d)(2).
(3) STOCKHOLDINGS.—For purposes of paragraphs (1)(C)(i) and (1)(E), there shall be
taken into account indirect stockholdings which would be taken into account under
section 267(c), except that, for purposes of this paragraph, section 267(c)(4) shall be
treated as providing that the members of the family of an individual are the members
within the meaning of subsection (d).
(4) PARTNERSHIPS; TRUSTS.—For purposes of paragraphs (1)(C)(ii) and (iii), (1)(F),
and (1)(G), the ownership of profits or beneficial interests shall be determined in
accordance with the rules for constructive ownership of stock provided in section 267(c)
(other than paragraph (3) thereof), except that section 267(c)(4) shall be treated as
providing that the members of the family of an individual are the members within the
meaning of subsection (d).
(b) FOUNDATION MANAGER.—For purposes of this subchapter, the term ''foundation
manager'' means, with respect to any private foundation—
(1) an officer, director, or trustee of a foundation (or an individual having powers or
responsibilities similar to those of officers, directors, or trustees of the foundation), and
(2) with respect to any act (or failure to act), the employees of the foundation having
authority or responsibility with respect to such act (or failure to act).
(c) GOVERNMENT OFFICIAL.—For purposes of subsection (a)(1)(I) and section 4941, the
term ''government official'' means, with respect to an act of self-dealing described in section
4941, an individual who, at the time of such act, holds any of the following offices or
positions (other than as a ''special Government employee'', as defined in section 202(a) of
title 18, United States Code):
(1) an elective public office in the executive or legislative branch of the Government
of the United States,
(2) an office in the executive or judicial branch of the Government of the United
States, appointment to which was made by the President,
(3) a position in the executive, legislative, or judicial branch of the Government of the
United States—
(A) which is listed in schedule C of rule VI of the Civil Service Rules, or
(B) the compensation for which is equal to or greater than the lowest rate of basic
pay for the Senior Executive Service under section 5382 of title 5, United States
Code,
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(4) a position under the House of Representatives or the Senate of the United States
held by an individual receiving gross compensation at an annual rate of $15,000 or more,
(5) an elective or appointive public office in the executive, legislative, or judicial
branch of the government of a State, possession of the United States, or political
subdivision or other area of any of the foregoing, or of the District of Columbia, held by
an individual receiving gross compensation at an annual rate of $20,000 or more,
(6) a position as personal or executive assistant or secretary to any of the foregoing,
or
(7) a member of the Internal Revenue Service Oversight Board.
(d) MEMBERS OF FAMILY.—For purposes of subsection (a)(1), the family of any
individual shall include only his spouse, ancestors, children, grandchildren, great
grandchildren, and the spouses of children, grandchildren, and great grandchildren.
B. Sale of Property to Comply With Conflict-of-Interest Requirements
26 U.S.C. § 1043. Sale of property to comply with conflict-of-interest requirements
(a) NONRECOGNITION OF GAIN.—If an eligible person sells any property pursuant to a
certificate of divestiture, at the election of the taxpayer, gain from such sale shall be
recognized only to the extent that the amount realized on such sale exceeds the cost (to the
extent not previously taken into account under this subsection) of any permitted property
purchased by the taxpayer during the 60-day period beginning on the date of such sale.
(b) DEFINITIONS.—For purposes of this section—
(1) ELIGIBLE PERSON.—The term ''eligible person'' means—
(A) an officer or employee of the executive branch, or a judicial officer, of the
Federal Government, but does not mean a special Government employee as defined
in section 202 of title 18, United States Code, and
(B) any spouse or minor or dependent child whose ownership of any property is
attributable under any statute, regulation, rule, judicial canon, or executive order
referred to in paragraph (2) to a person referred to in subparagraph (A).
(2) CERTIFICATE OF DIVESTITURE.—The term ''certificate of divestiture'' means any
written determination—
(A) that states that divestiture of specific property is reasonably necessary to
comply with any Federal conflict of interest statute, regulation, rule, judicial canon, or
executive order (including section 208 of title 18, United States Code), or requested
by a congressional committee as a condition of confirmation,
(B) that has been issued by the President or the Director of the Office of
Government Ethics, in the case of executive branch officers or employees, or by the
Judicial Conference of the United States (or its designee), in the case of judicial
officers, and
(C) that identifies the specific property to be divested.
(3) PERMITTED PROPERTY.—The term ''permitted property'' means any obligation of
the United States or any diversified investment fund approved by regulations issued by
the Office of Government Ethics.
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(4) PURCHASE.—The taxpayer shall be considered to have purchased any permitted
property if, but for subsection (c), the unadjusted basis of such property would be its cost
within the meaning of section 1012.
(5) SPECIAL RULE FOR TRUSTS.—For purposes of this section, the trustee of a trust
shall be treated as an eligible person with respect to property which is held in the trust
if—
(A) any person referred to in paragraph (1)(A) has a beneficial interest in the
principal or income of the trust, or
(B) any person referred to in paragraph (1)(B) has a beneficial interest in the
principal or income of the trust and such interest is attributable under any statute,
regulation, rule, judicial canon, or executive order referred to in paragraph (2) to a
person referred to in paragraph (1)(A).
(6) JUDICIAL OFFICER—The term ''judicial officer'' means the Chief Justice of the
United States, the Associate Justices of the Supreme Court, and the judges of the United
States courts of appeals, United States district courts, including the district courts in
Guam, the Northern Mariana Islands, and the Virgin Islands, Court of Appeals for the
Federal Circuit, Court of International Trade, Tax Court, Court of Federal Claims, Court
of Appeals for Veterans Claims, United States Court of Appeals for the Armed Forces,
and any court created by Act of Congress, the judges of which are entitled to hold office
during good behavior.
(c) BASIS ADJUSTMENTS.—If gain from the sale of any property is not recognized by
reason of subsection (a), such gain shall be applied to reduce (in the order acquired) the basis
for determining gain or loss of any permitted property which is purchased by the taxpayer
during the 60-day period described in subsection (a).
C. Treatment of Sale of Stock Acquired Pursuant to Exercise of Stock Options to Comply
With Conflict-of-Interest Requirements
26 U.S.C. § 421. General rules
(a) ***
(b) ***
(c) ***
(d) CERTAIN SALES TO COMPLY WITH CONFLICT-OF-INTEREST REQUIREMENTS. – If –
(1) a share of stock is transferred to an eligible person (as defined
in section 1043(b)(1)) pursuant to such person’s exercise of an option to which this part
applies, and
(2) such share is disposed of by such person pursuant to a certificate of divestiture (as
defined in section 1043(b)(2)),
such disposition shall be treated as meeting the requirements of section 422(a)(1) or
423(a)(1), whichever is applicable.
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VIII. POLITICAL ACTIVITIES
A. Administrative (Hatch Act)
5 U.S.C. § 7321. Political participation
It is the policy of the Congress that employees should be encouraged to exercise fully,
freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by
law, their right to participate or to refrain from participating in the political processes of the
Nation.
5 U.S.C. § 7322. Definitions
For the purpose of this subchapter—
(1) ''employee'' means any individual, other than the President and the Vice President,
employed or holding office in—
(A) an Executive agency other than the Government Accountability Office; or
(B) a position within the competitive service which is not in an Executive agency;
but does not include a member of the uniformed services or an individual employed or
holding office in the government of the District of Columbia;
(2) ''partisan political office'' means any office for which any candidate is nominated
or elected as representing a party any of whose candidates for Presidential elector
received votes in the last preceding election at which Presidential electors were selected,
but shall exclude any office or position within a political party or affiliated organization;
and
(3) ''political contribution''—
(A) means any gift, subscription, loan, advance, or deposit of money or anything
of value, made for any political purpose;
(B) includes any contract, promise, or agreement, express or implied, whether or
not legally enforceable, to make a contribution for any political purpose;
(C) includes any payment by any person, other than a candidate or a political
party or affiliated organization, of compensation for the personal services of another
person which are rendered to any candidate or political party or affiliated organization
without charge for any political purpose; and
(D) includes the provision of personal services for any political purpose.
5 U.S.C. § 7323. Political activity authorized; prohibitions
(a) Subject to the provisions of subsection (b), an employee may take an active part in
political management or in political campaigns, except an employee may not—
(1) use his official authority or influence for the purpose of interfering with or
affecting the result of an election;
(2) knowingly solicit, accept, or receive a political contribution from any person,
unless such person is—
(A) a member of the same Federal labor organization as defined under section
7103(4) of this title or a Federal employee organization which as of the date of
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enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate
political committee (as defined under section 315(a)(4) of the Federal Election
Campaign Act of 1971 (2 U.S.C. 441a(a)(4)));
(B) not a subordinate employee; and
(C) the solicitation is for a contribution to the multicandidate political committee
(as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2
U.S.C. 441a(a)(4))) of such Federal labor organization as defined under section
7103(4) of this title or a Federal employee organization which as of the date of the
enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate
political committee (as defined under section 315(a)(4) of the Federal Election
Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); or
(3) run for the nomination or as a candidate for election to a partisan political office;
or
(4) knowingly solicit or discourage the participation in any political activity of any
person who—
(A) has an application for any compensation, grant, contract, ruling, license,
permit, or certificate pending before the employing office of such employee; or
(B) is the subject of or a participant in an ongoing audit, investigation, or enforcement action being carried out by the employing office of such employee.
(b)(1) An employee of the Federal Election Commission (except one appointed by the
President, by and with the advice and consent of the Senate), may not request or receive
from, or give to, an employee, a Member of Congress, or an officer of a uniformed service a
political contribution.
(2)(A) No employee described under subparagraph (B) (except one appointed by the
President, by and with the advice and consent of the Senate), may take an active part in
political management or political campaigns.
(B) The provisions of subparagraph (A) shall apply to—
(i) an employee of—
(I) the Federal Election Commission [or the Election Assistance
Commission] 26;
(II) the Federal Bureau of Investigation;
(III) the Secret Service;
(IV) the Central Intelligence Agency;
(V) the National Security Council;
(VI) the National Security Agency;
(VII) the Defense Intelligence Agency;
(VIII) the Merit Systems Protection Board;
(IX) the Office of Special Counsel;
(X) the Office of Criminal Investigation of the Internal Revenue Service;
26
Pursuant to section 811(a) of the Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666, 1727 (2002), upon appointment
of all members of the Election Assistance Commission, this provision is amended by inserting "or the Election Assistance Commission"
after "Commission".
98
(XI) the Office of Investigative Programs of the United States Customs
Service;
(XII) the Office of Law Enforcement of the Bureau of Alcohol, Tobacco,
and Firearms;
(XIII) the National Geospatial-Intelligence Agency; or
(XIV) the Office of the Director of National Intelligence; or
(ii) a person employed in a position described under section 3132(a)(4), 5372,
5372a, or 5372b of title 5, United States Code.
(3) No employee of the Criminal Division or National Security Division of the
Department of Justice (except one appointed by the President, by and with the advice and
consent of the Senate), may take an active part in political management or political
campaigns.
(4) For purposes of this subsection, the term ''active part in political management or in
a political campaign'' means those acts of political management or political campaigning
which were prohibited for employees of the competitive service before July 19, 1940, by
determinations of the Civil Service Commission under the rules prescribed by the
President.
(c) An employee retains the right to vote as he chooses and to express his opinion on
political subjects and candidates.
5 U.S.C. § 7324. Political activities on duty; prohibition
(a) An employee may not engage in political activity—
(1) while the employee is on duty;
(2) in any room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United States or any
agency or instrumentality thereof;
(3) while wearing a uniform or official insignia identifying the office or position of
the employee; or
(4) using any vehicle owned or leased by the Government of the United States or any
agency or instrumentality thereof.
(b)(1) An employee described in paragraph (2) of this subsection may engage in political
activity otherwise prohibited by subsection (a) if the costs associated with that political
activity are not paid for by money derived from the Treasury of the United States.
(2) Paragraph (1) applies to an employee—
(A) the duties and responsibilities of whose position continue outside normal duty
hours and while away from the normal duty post; and
(B) who is—
(i) an employee paid from an appropriation for the Executive Office of the
President; or
(ii) an employee appointed by the President, by and with the advice and
consent of the Senate, whose position is located within the United States, who
determines policies to be pursued by the United States in relations with foreign
powers or in the nationwide administration of Federal laws.
99
5 U.S.C. § 7325. Political activity permitted; employees residing in certain
municipalities
The Office of Personnel Management may prescribe regulations permitting employees,
without regard to the prohibitions in paragraphs (2) and (3) of section 7323(a) and paragraph
(2) of section 7323(b) of this title, to take an active part in political management and political
campaigns involving the municipality or other political subdivision in which they reside, to
the extent the Office considers it to be in their domestic interest, when—
(1) the municipality or political subdivision is—
(A) the District of Columbia;
(B) in Maryland or Virginia and in the immediate vicinity of the District of
Columbia; or
(C) a municipality in which the majority of voters are employed by the
Government of the United States; and
(2) the Office determines that because of special or unusual circumstances which
exist in the municipality or political subdivision it is in the domestic interest of the
employees and individuals to permit that political participation.
5 U.S.C. § 7326. Penalties
An employee or individual who violates section 7323 or 7324 shall be subject to removal,
reduction in grade, debarment from Federal employment for a period not to exceed 5 years,
suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000. 27
B. Criminal
18 U.S.C. § 601. Deprivation of employment or other benefit for political contribution
(a) Whoever, directly or indirectly, knowingly causes or attempts to cause any person to
make a contribution of a thing of value (including services) for the benefit of any candidate
or any political party, by means of the denial or deprivation, or the threat of the denial or
deprivation, of—
(1) any employment, position, or work in or for any agency or other entity of the
Government of the United States, a State, or a political subdivision of a State, or any
compensation or benefit of such employment, position, or work; or
(2) any payment or benefit of a program of the United States, a State, or a political
subdivision of a State;
27
This provision shall not apply to an alleged violation if, before January 28, 2013, “(A) the Special Counsel has presented a complaint for
disciplinary action, under section 1215 of title 5, United States Code, with respect to the alleged violation; or (B) the employee alleged to have
committed the violation has entered into a signed settlement agreement with the Special Counsel with respect to the alleged violation.” Hatch
Modernization Act of 2012, Pub. L. 112-230 § 5, 126 Stat. 1616 (2012). In such cases, “[a]n employee or individual who violates section 7323 or
7324 of this title shall be removed from his position, and funds appropriated for the position from which removed thereafter may not be used to
pay the employee or individual. However, if the Merit System Protection Board finds by unanimous vote that the violation does not warrant
removal, a penalty of not less than 30 days' suspension without pay shall be imposed by direction of the Board.” Hatch Act Reform Amendments
of 1993, Pub. L. 103-94 § 2, 107 Stat. 1001 (repealed by Pub. L. 112-230 §§ 4-5).
100
if such employment, position, work, compensation, payment, or benefit is provided for or
made possible in whole or in part by an Act of Congress, shall be fined under this title, or
imprisoned not more than one year, or both.
(b) As used in this section—
(1) the term ''candidate'' means an individual who seeks nomination for election, or
election, to Federal, State, or local office, whether or not such individual is elected, and,
for purposes of this paragraph, an individual shall be deemed to seek nomination for
election, or election, to Federal, State, or local office, if he has (A) taken the action
necessary under the law of a State to qualify himself for nomination for election, or
election, or (B) received contributions or made expenditures, or has given his consent for
any other person to receive contributions or make expenditures, with a view to bringing
about his nomination for election, or election, to such office;
(2) the term ''election'' means (A) a general, special primary, or runoff election, (B) a
convention or caucus of a political party held to nominate a candidate, (C) a primary
election held for the selection of delegates to a nominating convention of a political party,
(D) a primary election held for the expression of a preference for the nomination of
persons for election to the office of President, and (E) the election of delegates to a
constitutional convention for proposing amendments to the Constitution of the United
States or of any State; and
(3) the term ''State'' means a State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of the United States.
18 U.S.C. § 602. Solicitation of political contributions
(a) It shall be unlawful for—
(1) a candidate for the Congress;
(2) an individual elected to or serving in the office of Senator or Representative in, or
Delegate or Resident Commissioner to, the Congress;
(3) an officer or employee of the United States or any department or agency thereof;
or
(4) a person receiving any salary or compensation for services from money derived
from the Treasury of the United States; to knowingly solicit any contribution within the
meaning of section 301(8) of the Federal Election Campaign Act of 1971 [2 U.S.C.
§ 431(8)] from any other such officer, employee, or person. Any person who violates this
section shall be fined under this title or imprisoned not more than 3 years, or both.
(b) The prohibition in subsection (a) shall not apply to any activity of an employee (as
defined in section 7322(1) of title 5) or any individual employed in or under the United
States Postal Service or the Postal Regulatory Commission, unless that activity is
prohibited by section 7323 or 7324 of such title.
18 U.S.C. § 603. Making political contributions
(a) It shall be unlawful for an officer or employee of the United States or any department
or agency thereof, or a person receiving any salary or compensation for services from money
derived from the Treasury of the United States, to make any contribution within the meaning
101
of section 301(8) of the Federal Election Campaign Act of 1971 [2 U.S.C. § 431(8)] to any
other such officer, employee or person or to any Senator or Representative in, or Delegate or
Resident Commissioner to, the Congress, if the person receiving such contribution is the
employer or employing authority of the person making the contribution. Any person who
violates this section shall be fined under this title or imprisoned not more than three years, or
both.
(b) For purposes of this section, a contribution to an authorized committee as defined in
section 302(e)(1) of the Federal Election Campaign Act of 1971 [2 U.S.C. § 432(e)(1)] shall
be considered a contribution to the individual who has authorized such committee.
(c) The prohibition in subsection (a) shall not apply to any activity of an employee (as
defined in section 7322(1) of title 5) or any individual employed in or under the United States
Postal Service or the Postal Regulatory Commission, unless that activity is prohibited by
section 7323 or 7324 of such title.
18 U.S.C. § 604. Solicitation from persons on relief
Whoever solicits or receives or is in any manner concerned in soliciting or receiving any
assessment, subscription, or contribution for any political purpose from any person known by
him to be entitled to, or receiving compensation, employment, or other benefit provided for
or made possible by any Act of Congress appropriating funds for work relief or relief
purposes, shall be fined under this title or imprisoned not more than one year, or both.
18 U.S.C. § 605. Disclosure of names of persons on relief
Whoever, for political purposes, furnishes or discloses any list or names of persons
receiving compensation, employment or benefits provided for or made possible by any Act of
Congress appropriating, or authorizing the appropriation of funds for work relief or relief
purposes, to a political candidate, committee, campaign manager, or to any person for
delivery to a political candidate, committee, or campaign manager; and
Whoever receives any such list or names for political purposes—
Shall be fined under this title or imprisoned not more than one year, or both.
18 U.S.C. § 606. Intimidation to secure political contributions
Whoever, being one of the officers or employees of the United States mentioned in
section 602 of this title, discharges, or promotes, or degrades, or in any manner changes the
official rank or compensation of any other officer or employee, or promises or threatens so to
do, for giving or withholding or neglecting to make any contribution of money or other
valuable thing for any political purpose, shall be fined under this title or imprisoned not more
than three years, or both.
18 U.S.C. § 607. Place of solicitation
(a) PROHIBITION.—
(1) IN GENERAL.—It shall be unlawful for any person to solicit or receive a donation
of money or other thing of value in connection with a Federal, State, or local election
from a person who is located in a room or building occupied in the discharge of official
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duties by an officer or employee of the United States. It shall be unlawful for an
individual who is an officer or employee of the Federal Government, including the
President, Vice President, and Members of Congress, to solicit or receive a donation of
money or other thing of value in connection with a Federal, State, or local election, while
in any room or building occupied in the discharge of official duties by an officer or
employee of the United States, from any person.
(2) PENALTY.—A person who violates this section shall be fined not more than
$5,000, imprisoned not more than 3 years, or both.
(b) The prohibition in subsection (a) shall not apply to the receipt of contributions by
persons on the staff of a Senator or Representative in, or Delegate or Resident Commissioner
to, the Congress or Executive Office of the President, provided, that such contributions have
not been solicited in any manner which directs the contributor to mail or deliver a
contribution to any room, building, or other facility referred to in subsection (a), and
provided that such contributions are transferred within seven days of receipt to a political
committee within the meaning of section 302(e) of the Federal Election Campaign Act of
1971.
18 U.S.C. § 608. Absent uniformed services voters and overseas voters
(a) Whoever knowingly deprives or attempts to deprive any person of a right under the
Uniformed and Overseas Citizens Absentee Voting Act shall be fined in accordance with this
title or imprisoned not more than five years, or both.
(b) Whoever knowingly gives false information for the purpose of establishing the
eligibility of any person to register or vote under the Uniformed and Overseas Citizens
Absentee Voting Act, or pays or offers to pay, or accepts payment for registering or voting
under such Act shall be fined in accordance with this title or imprisoned not more than five
years, or both.
18 U.S.C. § 609. Use of military authority to influence vote of member of Armed Forces
Whoever, being a commissioned, noncommissioned, warrant, or petty officer of an
Armed Force, uses military authority to influence the vote of a member of the Armed Forces
or to require a member of the Armed Forces to march to a polling place, or attempts to do so,
shall be fined in accordance with this title or imprisoned not more than five years, or both.
Nothing in this section shall prohibit free discussion of political issues or candidates for
public office.
18 U.S.C. § 610. Coercion of political activity
It shall be unlawful for any person to intimidate, threaten, command, or coerce, or
attempt to intimidate, threaten, command, or coerce, any employee of the Federal
Government as defined in section 7322(1) of title 5, United States Code, to engage in, or not
to engage in, any political activity, including, but not limited to, voting or refusing to vote for
any candidate or measure in any election, making or refusing to make any political
contribution, or working or refusing to work on behalf of any candidate. Any person who
103
violates this section shall be fined under this title or imprisoned not more than three years, or
both.
IX. MISCELLANEOUS STATUTES
5 U.S.C. § 557(d). Ex parte communication
(d)(1) In any agency proceeding which is subject to subsection (a) of this section, except
to the extent required for the disposition of ex parte matters as authorized by law—
(A) no interested person outside the agency shall make or knowingly cause to be
made to any member of the body comprising the agency, administrative law judge, or
other employee who is or may reasonably be expected to be involved in the decisional
process of the proceeding, an ex parte communication relevant to the merits of the
proceeding;
(B) no member of the body comprising the agency, administrative law judge, or
other employee who is or may reasonably be expected to be involved in the decisional
process of the proceeding, shall make or knowingly cause to be made to any
interested person outside the agency an ex parte communication relevant to the merits
of the proceeding;
(C) a member of the body comprising the agency, administrative law judge, or
other employee who is or may reasonably be expected to be involved in the decisional
process of such proceeding who receives, or who makes or knowingly causes to be
made, a communication prohibited by this subsection shall place on the public record
of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all such oral communications; and
(iii) all written responses, and memoranda stating the substance of all oral
responses, to the materials described in clauses (i) and (ii) of this subparagraph;
(D) upon receipt of a communication knowingly made or knowingly caused to be
made by a party in violation of this subsection, the agency, administrative law judge,
or other employee presiding at the hearing may, to the extent consistent with the
interests of justice and the policy of the underlying statutes, require the party to show
cause why his claim or interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of such violation; and
(E) the prohibitions of this subsection shall apply beginning at such time as the
agency may designate, but in no case shall they begin to apply later than the time at
which a proceeding is noticed for hearing unless the person responsible for the
communication has knowledge that it will be noticed, in which case the prohibitions
shall apply beginning at the time of his acquisition of such knowledge.
(2) This subsection does not constitute authority to withhold information from Congress.
18 U.S.C. § 2. Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a principal.
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(b) Whoever willfully causes an act to be done which if directly performed by him or
another would be an offense against the United States, is punishable as a principal.
18 U.S.C. § 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government of the United
States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves
international or domestic terrorism (as defined in section 2331), imprisoned not more than 8
years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or
section 1591, then the term of imprisonment imposed under this section shall be not more
than 8 years.
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's
counsel, for statements, representations, writings or documents submitted by such party or
counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection
(a) shall apply only to—
(1) administrative matters, including a claim for payment, a matter related to the
procurement of property or services, personnel or employment practices, or support
services, or a document required by law, rule, or regulation to be submitted to the
Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee,
subcommittee, commission or office of the Congress, consistent with applicable rules of
the House or Senate.
August 1, 2016
LA-16-06
LEGAL ADVISORY
TO:
Designated Agency Ethics Officials
FROM:
Walter M. Shaub, Jr.
Director
SUBJECT:
Publication of the Final Rule Revising Subpart F of the Standards of Conduct,
Seeking Other Employment
On July 26, 2016, the U.S. Office of Government Ethics (“OGE”) published a final rule
amending the provisions of the Standards of Ethical Conduct for Employees of the Executive
Branch (“Standards of Conduct”) that govern seeking other employment found at 5 C.F.R.
§ 2635, Subpart F. See Standards of Ethical Conduct for Employees of the Executive Branch;
Amendments to the Seeking Other Employment Rules, 81 Fed. Reg. 48,687 (July 26, 2016),
available at https://www.gpo.gov/fdsys/pkg/FR-2016-07-26/pdf/2016-17553.pdf. Subpart F sets
forth a recusal requirement that applies to employees seeking employment with persons whose
financial interests would be directly and predictably affected by particular matters in which the
employees participate personally and substantially. The final rule is the first major revision to
Subpart F since 1993. The amendments implement the statutory notification requirements under
section 17 of the Stop Trading on Congressional Knowledge Act of 2012 (“STOCK Act”),
incorporate past interpretive guidance, add and update regulatory examples, improve clarity,
update citations, and make technical corrections.
This Legal Advisory highlights two principal changes to Subpart F of the Standards of
Conduct made in this rulemaking. For a complete discussion of all of the amendments and
OGE’s rationale for the proposed rule, which OGE has now adopted as final, please see
Standards of Ethical Conduct for Employees of the Executive Branch; Amendments to the
Seeking Other Employment Rules, 81 Fed. Reg. 8008 (Feb. 17, 2016), available at
https://www.gpo.gov/fdsys/pkg/FR-2016-02-17/pdf/2016-03214.pdf. OGE is also providing the
attached redlined version of Subpart F, which shows all changes made by the amendments.
Seeking Employment Online and Through Social Media
Previously, employees’ use of social media was not explicitly addressed in Subpart F. In
recognition of the increased use of social media and the need to understand how the Standards of
Conduct apply to the use of social media, OGE added four new examples to clarify that the rules
in this subpart apply in a similar manner to all methods employees use when seeking
employment. Specifically, three of these examples apply the definition of “seeking employment”
to an employee’s social media activities. The fourth example discusses who is a “prospective
employer” when seeking employment online. In these examples, OGE applies to employees’ use
of social media existing interpretive guidance regarding when an employee has begun seeking
employment.
New example 4 to 5 C.F.R. § 2635.603(b) illustrates that an employee is not considered
to be seeking employment merely because the employee posted to his or her social media
account a profile, resume, or similar summary of professional experience that is not targeted at a
specific person. Such a posting is not an unsolicited communication with any prospective
employer; rather, it would be akin to posting a resume on a bulletin board.
Likewise, new example 5 to 5 C.F.R. § 2635.603(b) explains that the same employee
would not be seeking employment with a person merely because a person has viewed the
employee’s profile on that social media account. Similarly, new example 6 to 5 C.F.R.
§ 2635.603(b) explains that the employee would not be considered to be seeking employment
with a person merely because that person sent an unsolicited message to the employee after
viewing the online profile. However, examples 5 and 6 both explain that an employee who
receives an unsolicited message or job offer through email or an online forum is seeking
employment with the sender if the employee responds to the message and the employee’s
response is anything other than a rejection.
The final social media example illustrates the definition of “prospective employer” by
providing a modern example of OGE’s existing analysis regarding the use of agents or
intermediaries while seeking employment. Specifically, new example 2 to 5 C.F.R.
§ 2635.603(c) explains that online resume distribution services are analogous to traditional
employment search firms for purposes of determining who is a prospective employer and when
an employee has begun seeking employment. As is the case with traditional employment search
firms, a person becomes a prospective employer with whom the employee is seeking
employment once the resume distribution service identifies the person to the employee, even
though the employee has not personally had employment discussions with the person.
STOCK Act Notification Requirements
OGE has implemented the statutory notification requirements under section 17 of the
STOCK Act by adding a new 5 C.F.R. § 2635.607 to Subpart F and incorporating references to
the requirements throughout the regulation. 1 Section 17 of the STOCK Act requires a public filer
who is negotiating for or has an agreement of future employment or compensation to file a
statement notifying the agency ethics official of such negotiation or agreement within three
business days after commencement of the negotiation or agreement. Pub. L. No. 112–105, 126
Stat. 303, 5 U.S.C. app. 101 note. A public filer who files a notification statement regarding the
negotiation or agreement also must file a notification regarding recusal whenever there is a
1
Although OGE added references to the STOCK Act notification requirements applicable to public filers throughout
revised Subpart F, the examples to sections other than 5 C.F.R. § 2635.607 are not necessarily meant to illustrate the
additional notification requirements applicable to public filers. For example, revised 5 C.F.R. § 2635.602(a)(2)
references the STOCK Act requirements, but the examples to that section focus more broadly on the general
notification and recusal requirements applicable to an employee who is a not a public filer.
2
conflict of interest or appearance of a conflict of interest with respect to the entity identified in
the notification statement. Id.
OGE previously issued interpretive guidance for implementing section 17 of the STOCK
Act on April 6, 2012, and April 25, 2013. See OGE Legal Advisories 12-01 (negotiations and
agreements of future employment) and 13-06 (negotiations and agreements of future
compensation). New 5 C.F.R. § 2635.607 codifies and further develops this guidance.
Specifically, new 5 C.F.R. § 2635.607(c) provides public filers with the option to file
notification and recusal statements before negotiations have commenced and before an
agreement of future employment or compensation is reached. OGE has long considered such
notification a best practice that enhances public filers’ access to advice from ethics officials.
Public filers who elect to file statements that include all required information 2 prior to the
commencement of negotiations are deemed to have met the statutory requirements. Notification
and recusal statements will continue to satisfy the statutory requirements after the
commencement of the negotiations or reaching of an agreement of future employment or
compensation.
If an employee elects to file a notification or recusal statement in advance, new
5 C.F.R. § 2635.607(c) further clarifies that such filing is not construed as a statement that
negotiations have or have not commenced or that a conflict of interest does or does not exist.
Although OGE encourages advance filing when a public filer anticipates a realistic possibility of
negotiations or an agreement, the absence of an advance filing does not violate Subpart F or the
principles of ethical conduct contained in 5 C.F.R. § 2635.101(b).
Agency ethics officials should contact their OGE Desk Officers if they have any
questions about the revisions to Subpart F of the Standards of Conduct.
Attachment
2
The statements must name the private entity or entities involved in the negotiations or agreement and provide an
estimated date of the commencement of the negotiations or agreement. See Pub. L. No. 112–105, 126 Stat. 303,
5 U.S.C. app. 101 note.
3
Subpart F -- Seeking Other Employment
Sec.
2635.601
Overview.
2635.602
Applicability and related considerations.
2635.603
Definitions.
2635.604
Recusal while seeking employment.
2635.605
Waiver or authorization permitting participation while seeking employment.
2635.606
Recusal based on an arrangement concerning prospective employment or
otherwise after negotiations.
2635.607
Notification requirements for public financial disclosure report filers regarding
negotiations for or agreement of future employment or compensation.
§ 2635.601 Overview.
This subpart contains a disqualificationrecusal requirement that applies to employees when
seeking non-Federal employment with persons whose financial interests would be directly and
predictably affected by particular matters in which the employees participate personally and
substantially. Specifically, it addresses the requirement of 18 U.S.C. 208(a) that an employee
disqualify himself from participationnot participate personally and substantially in any particular
matter that, to the employee’s knowledge, will have a direct and predictable effect on the
financial interests of a person “with whom hethe employee is negotiating or has any arrangement
concerning prospective employment.” See § 2635.402 and § 2640.103 of this chapter. Beyond
this statutory requirement, itthis subpart also addresses the issues of lack of impartiality that
require disqualificationrecusal from particular matters affecting the financial interests of a
prospective employer when an employee’s actions in seeking employment fall short of actual
employment negotiations. In addition, this subpart contains the statutory notification
requirements that apply to public filers when they negotiate for or have agreements of future
employment or compensation. Specifically, it addresses the requirements of section 17 of the
1
Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act), Public Law 112-105, 126
Stat. 303, 5 U.S.C. app. 101 note, that a public filer must submit a written statement identifying
the entity involved in the negotiations or agreement within three business days after
commencement of such negotiations or agreement and must submit a notification of recusal
whenever there is a conflict of interest or an appearance of a conflict of interest.
§ 2635.602 Applicability and related considerations.
(a) Applicability. (1) To ensure that hean employee does not violate 18 U.S.C. 208(a),
section 17 of the STOCK Act, or the principles of ethical conduct contained in § 2635.101(b), an
employee who is seeking employment or who has an arrangement concerning prospective
employment shallmust comply with the applicable disqualificationrecusal requirements of
§§ 2635.604 and 2635.606 if particular matters in which the employee will be participating
personally and substantially would, to the employee’s knowledge, directly and predictably affect
the financial interests of a prospective employer or of a person with whom hethe employee has
an arrangement concerning prospective employment. Compliance with this subpart also will
ensure that the employee does not violate subpart D or E of this part. In addition, a public filer
who negotiates for or has an agreement of future employment or compensation must comply
with the requirements of § 2635.607.
NOTE:(2) An employee who is seeking employment with a person whose financial interests
are not, to the employee’s knowledge, affected directly and predictably by particular matters in
which hethe employee participates personally and substantially has no obligation to recuse under
this subpart. In addition, nothing in this subpart requires an employee, other than a public filer, to
notify anyone that the employee is seeking employment unless a notification is necessary to
2
implement a recusal pursuant to § 2635.604(b). A public filer who negotiates for or has an
agreement of future employment or compensation must comply with the notification
requirements in § 2635.607. An employee may, however, be subject to other statutes whichthat
impose requirements on employment contacts or discussions, such as 41 U.S.C. 423(c),2103,
which is applicable to agency officials involved in certain procurement matters. Employees are
encouraged to consult with their ethics officials if they have any questions about how this
subpart may apply to them. Ethics officials are not obligated by this subpart to inform
supervisors that employees are seeking employment.
Example 1 to paragraph (a): Recently, an employee of the Department of Education
submitted her resume to the University of Delaware for a job opening that she heard about
through a friend. The employee has begun seeking employment. However, because she is not
participating in any particular matters affecting the University of Delaware, she is not required to
notify anyone that she has begun seeking employment.
Example 2 to paragraph (a): The employee in the preceding example has been approached
about an employment opportunity at the University of Maryland. Because the University of
Maryland has applied for grants on which she has been assigned to work in the past, she wants to
make certain that she does not violate the ethics rules. The employee contacts her ethics official
to discuss the matter. The employee informs the ethics official that she is not currently
participating in any particular matters affecting the University of Maryland. As a result, the
ethics official advises the employee that she will have no notification obligations under this
subpart. However, the ethics official cautions the employee that, if the employee is assigned to
participate in a particular matter affecting the University of Maryland while she is seeking
employment with the University, she must take whatever steps are necessary to avoid working
on the grant, in accordance with § 2635.604.
(b) Related employment restrictions—(1) Outside employment while a Federal
employee. An employee who is contemplating outside employment to be undertaken
concurrently with histhe employee’s Federal employment must abide by any limitations
applicable to histhe employee’s outside activities under subparts G and H of this part. He,
including any requirements under supplemental agency regulations to obtain prior approval
before engaging in outside employment or activities and any prohibitions under supplemental
3
agency regulations related to outside employment or activities. The employee must also comply
with any disqualificationapplicable recusal requirement that may beof this subpart, as well as any
applicable recusal requirements under subpart D or E of this part as a result of histhe employee’s
outside employment activities.
(2) Post-employment restrictions. An employee who is contemplating employment to be
undertaken following the termination of histhe employee’s Federal employment should consult
an agency ethics official to obtain advice regarding any post-employment restrictions that may
be applicable. RegulationsThe regulation implementing the Governmentwide post-employment
statute, 18 U.S.C. 207, areis contained in parts 2637 andpart 2641 of this chapter. Employees are
cautioned that they may be subject to additional statutory prohibitions on post-employment
acceptance of compensation from contractors, such as 41 U.S.C. 423(d).2104.
(b3) Interview trips and entertainment. Where a prospective employer who is a prohibited
source as defined in § 2635.203(d) offers to reimburse an employee’s travel expenses, or provide
other reasonable amenities incident to employment discussions, the employee may accept such
amenities in accordance with § 2635.204(e)(3). Where a prospective employer is a foreign
government or international organization, the employee must also ensure that he or she is in
compliance with the Foreign Gifts and Decorations Act, 5 U.S.C. 7342.
§ 2635.603 Definitions.
For purposes of this subpart:
(a) Employment means any form of non-Federal employment or business relationship
involving the provision of personal services by the employee, whether to be undertaken at the
4
same time as or subsequent to Federal employment. It includes but is not limited to personal
services as an officer, director, employee, agent, attorney, consultant, contractor, general partner,
or trustee.
Example 1: to paragraph (a): An employee of the Bureau of Indian Affairs who has
announced her intention to retire is approached by tribal representatives concerning a possible
consulting contract with the tribe. The independent contractual relationship the tribe wishes to
negotiate is employment for purposes of this subpart.
Example 2: to paragraph (a): An employee of the Department of Health and Human
Services is invited to a meeting with officials of a nonprofit corporation to discuss the possibility
of his serving as a member of the corporation’s board of directors. Service, with or without
compensation, as a member of the board of directors constitutes employment for purposes of this
subpart.
Example 3 to paragraph (a): An employee at the Department of Energy volunteers without
compensation to serve dinners at a homeless shelter each month. The employee’s uncompensated
volunteer services in this case are not considered an employment or business relationship for
purposes of this subpart.
(b) An employee is seeking employment once hethe employee has begun seeking
employment within the meaning of paragraph (b)(1) of this section and until hethe employee is
no longer seeking employment within the meaning of paragraph (b)(2) of this section.
(1) An employee has begun seeking employment if hethe employee has directly or
indirectly:
(i) Engaged in negotiations for employment with any person. For these purposes, as for 18
U.S.C. 208(a),) and section 17 of the STOCK Act, the term negotiations means discussion or
communication with another person, or such person’s agent or intermediary, mutually conducted
with a view toward reaching an agreement regarding possible employment with that person. The
term is not limited to discussions of specific terms and conditions of employment in a specific
position;
5
(ii) Made an unsolicited communication to any person, or such person’s agent or
intermediary, regarding possible employment with that person. However, the employee has not
begun seeking employment if that communication was: for the sole purpose of requesting a job
application; or
(A) For the sole purpose of requesting a job application; or
(B) For the purpose of submitting a resume or other employment proposal to a person
affected by the performance or nonperformance of the employee's duties only as part of an
industry or other discrete class. The employee will be considered to have begun seeking
employment upon receipt of any response indicating an interest in employment discussions; or
(iii) Made a response, other than rejection, to an unsolicited communication from any
person, or such person’s agent or intermediary, regarding possible employment with that person.
(2) An employee is no longer seeking employment when:
(i) The employee or the prospective employer rejects the possibility of employment and all
discussions of possible employment have terminated; or
(ii) Two months have transpired after the employee’s dispatch of an unsolicited resume or
employment proposal, provided the employee has received no indication of interest in
employment discussions from the prospective employer.
(3) For purposes of this definition, a response that defers discussions until the foreseeable
future does not constitute rejection of an unsolicited employment overture, proposal, or resume
nor rejection of a prospective employment possibility.
6
Example 1: An employee of the Health Care Financing Administration is complimented on
her work by an official of a State Health Department who asks her to call if she is ever interested
in leaving Federal service. The employee explains to the State official that she is very happy with
her job at HCFA and is not interested in another job. She thanks him for his compliment
regarding her work and adds that she'll remember his interest if she ever decides to leave the
Government. The employee has rejected the unsolicited employment overture and has not begun
seeking employment.
Example 2: The employee in the preceding example responds by stating that she cannot
discuss future employment while she is working on a project affecting the State's health care
funding but would like to discuss employment with the State when the project is completed.
Because the employee has merely deferred employment discussions until the foreseeable future,
she has begun seeking employment with the State Health Department.
Example 1 to paragraph (b): A paralegal at the Department of the Army is in his third year
of law school. During a discussion with his neighbor, who is a partner in a large law firm in the
community, the neighbor invited him to visit her law firm. The paralegal took her up on the offer
and met with an associate at the firm. The associate shared with the paralegal her experiences
looking for a legal position, discussed what she does in her position at the law firm, and
explained why she chose her current law firm. There was no discussion of possible employment
with the firm. The Army paralegal is not seeking employment at this time. The purpose of the
visit was informational only.
Example 32 to paragraph (b): An employee of the Defense Contract Audit Agency (DCAA)
is auditing the overhead accounts of an Army contractor. While at the contractor’s headquarters,
the head of the contractor's accounting division tells the employee that his division is thinking
about hiring another accountant and asks whether the employee might be interested in leaving
DCAA. The DCAA employee askssays he is interested in knowing what kind of work would be
involved. The DCAA employee has begun seeking employment because he made a response
other than a rejection to the communication regarding possible employment with the Army
contractor, although he has not yet begun negotiating for employment.
Example 3 to paragraph (b): The DCAA employee and the head of the contractor’s
accounting division in the previous example have a meeting toThey discuss the duties of the
position the accounting division would like to fill and the DCAA employee's qualifications for
the position. They also discuss ways the DCAA employee could remedy one of the missing
qualifications, and the employee indicates a willingness to obtain the proper qualifications. They
do not discuss salary. The employee has engaged in negotiations regarding possible employment
with the contractor.The head of the division explains that he has not yet received authorization to
fill the particular position and will get back to the employee when he obtains the necessary
approval for additional staffing. The employee and the contractor's official have engaged in
negotiations regarding possible employment. The employee has begun seeking employment with
the Army contractor.
Example 4 to paragraph (b): An employee at the Department of Energy (DOE) lists his job
duties and employment experience in a profile on an online, business-oriented social networking
7
service. The employee’s profile is not targeted at a specific prospective employer. The employee
has not begun seeking employment because the posting of a profile or resume is not an
unsolicited communication with any prospective employer.
Example 5 to paragraph (b): The DOE employee in the previous example was recently
notified that a representative of a university has viewed his profile. The employee still has not
begun seeking employment with the university. Subsequently, a representative of the university
contacts the employee through the online forum to inquire whether the employee would be
interested in working for the university, to which he makes a response other than rejection. At
this point, the employee has begun seeking employment with the university until he rejects the
possibility of employment and all discussions of possible employment have terminated.
Example 6 to paragraph (b): The DOE employee in the previous two examples receives
emails from various companies in response to his online profile. He does not respond. The
employee has not begun seeking employment with the companies because he has not made a
response.
Example 4: An employee of the Occupational Safety and Health Administration helping to
draft safety standards applicable to the textile industry has mailed his resume to 25 textile
manufacturers. He has not begun seeking employment with any of the twenty-five. If he receives
a response from one of the resume recipients indicating an interest in employment discussions,
the employee will have begun seeking employment with the respondent at that time.
Example 5: A special Government employee of the Federal Deposit Insurance Corporation
is serving on an advisory committee formed for the purpose of reviewing rules applicable to all
member banks. She mails an unsolicited letter to a member bank offering her services as a
contract consultant. She has not begun seeking employment with the bank until she receives
some response indicating an interest in discussing her employment proposal. A letter merely
acknowledging receipt of the proposal is not an indication of interest in employment discussions.
Example 1:7 to paragraph (b): An employee of the Medicare & Medicaid Services
(CMS)Health Care Financing Administration is complimented on her work by an official of a
State Health Department who asks her to call if she is ever interested in leaving Federal service.
The employee explains to the State official that she is very happy with her job at HCFACMS and
is not interested in another job. She thanks him for his compliment regarding her work and adds
that she'll remember his interest if she ever decides to leave the Government. The employee has
rejected the unsolicited employment overture and has not begun seeking employment.
Example 2:Example 8 to paragraph (b): The employee in the preceding example responds
by stating that she cannot discuss future employment while she is working on a project affecting
the State's health care funding but would like to discuss employment with the State when the
project is completed. Because the employee has merely deferred employment discussions until
the foreseeable future, she has begun seeking employment with the State Health Department.
Example 9 to paragraph (b): Three months prior to the end of the current administration, a
political appointee at a large department receives a telephone call from the managing partner of
an international law firm. The managing partner asks if the official would be interested in joining
the law firm. The official says, “I am not talking to anyone about employment until I leave the
8
Government.” The official has rejected the unsolicited employment overture and has not begun
seeking employment.
Example 6:Example 10 to paragraph (b): A geologist employed by the U.S. Geological
Survey has been working as a member of a team preparing the Government's case in an action
brought by the Government against six oil companies. The geologist sends her resume to an oil
company that is a named defendant in the action. The geologist has begun seeking employment
with that oil company and will be seeking employment for two months from the date the resume
was mailed., provided she does not receive a response indicating an interest in employment
discussions. A letter merely acknowledging receipt of the resume is not an indication of interest
in employment discussions. However, if she withdraws her application or is notified within the
two-month period that her resume has been rejected, she will no longer be seeking employment
with the oil company as of the date she makes such withdrawal or receives such notification.
(c) Prospective employer means any person with whom the employee is seeking
employment. Where contacts that constitute seeking employment are made by or with an agent
or other intermediary, the term prospective employer includesmeans:
(1) A person who uses that agent or other intermediary for the purpose of seeking to
establish an employment relationship with the employee if the agent identifies the prospective
employer to the employee; and
(2) A person contacted by the employee’s agent or other intermediary for the purpose of
seeking to establish an employment relationship if the agent identifies the prospective employer
to the employee.
Example 1: to paragraph (c): An employee of the Federal Aviation Administration has
overall responsibility for airport safety inspections in a three-state area. She(FAA) has retained
an employment search firm to help her find another job. The search firm has just reported to the
FAA employee that it has given her resume to and had promising discussions with two airport
authorities within her jurisdiction., which the search firm identifies to the employee. Even though
the employee has not personally had employment discussions with either airport authority, each
airport authority is her prospective employer. She began seeking employment with each airport
authority upon learning its identity and that it has been given her resume.
Example 2 to paragraph (c): An employee pays for an online resume distribution service,
which sends her resume to recruiters that specialize in her field. The online service has just
9
notified her that it sent her resume to Software Company A and Software Company B. Even
though the employee has not personally had employment discussions with either company, each
software company is her prospective employer. She began seeking employment with each
company upon learning from the online service that Software Company A and Software
Company B had been given her resume by the intermediary.
(d) Direct and predictable effect, particular matter, and personal and substantial have the
respective meanings set forth in § 2635.402(b)(1), (3), and (4).
(e) Public filer means a person required to file a public financial disclosure report as set
forth in § 2634.202 of this chapter.
§ 2635.604 Recusal while seeking employment.
(a) Obligation to disqualify. Unlessrecuse. (1) Except as provided in paragraph (a)(2) or
where the employee’s participation ishas been authorized in accordance with § 2635.605, the
employee shallmay not participate personally and substantially in a particular matter that, to
histhe employee’s knowledge, has a direct and predictable effect on the financial interests of a
prospective employer with whom hethe employee is seeking employment within the meaning of
§ 2635.603(b). DisqualificationRecusal is accomplished by not participating in the particular
matter.
(2) The employee may participate in a particular matter under paragraph (a)(1) of this
section when:
(i) The employee’s only communication with the prospective employer in connection with
the search for employment is the submission of an unsolicited resume or other employment
proposal;
10
(ii) The prospective employer has not responded to the employee’s unsolicited
communication with a response indicating an interest in employment discussions; and
(iii) The matter is not a particular matter involving specific parties.
Example 41 to paragraph (a): A scientist is employed by the National Science Foundation
(NSF) as a special Government employee to serve on a panel that reviews grant applications to
fund research relating to deterioration of the ozone layer. She is discussing possible employment
as a member of the faculty of awith university that several years earlier received an NSF grant to
study the effect of fluorocarbons, but has no current grant application pending before NSF. The
employee is seeking employment, but she does not need to recuse because there is no particular
matter that would have a direct and predictable effect on the financial interests of the prospective
employer. Recusal would be required if the university submits a new application for the panel’s
review. As long as the university does not submit a new application for the panel's review, the
employee would not have to take any action to effect disqualification.
Example 2 to paragraph (a): An employee of the Food and Drug Administration is
developing a regulation on research criteria for approving prescription drugs. She begins
discussing possible employment with a pharmaceutical company. The employee may not
participate personally and substantially in the development of the regulation because she has
begun employment discussions with the pharmaceutical company and the regulation is a
particular matter of general applicability which would have a direct and predictable effect on the
financial interests of the pharmaceutical company.
Example 53 to paragraph (a): A special Government employee of the Federal Deposit
Insurance Corporation (FDIC) is assigned to advise the FDIC onserving on an advisory
committee formed for the purpose of reviewing rules applicable to all member banks. She mails
an unsolicited letter to a member bank offering her services as a contract consultant. Although
the employee is seeking employment, the employee may participate in this particular matter of
general applicabilityShe has not begun seeking employment with the bank until she receives
some response indicating an interest in discussing her employment proposal. A letter merely
acknowledging receipt of the proposal is not an indication of interest in employment discussions.
Example 4 to paragraph (a): An employee of the Occupational Safety and Health
Administration is conducting an inspection of one of several textile companies to which he sent
an unsolicited resume. The employee may not participate personally and substantially in the
inspection because he is seeking employment and the inspection is a particular matter involving
specific parties that will affect the textile company.
(b) Notification. An employee who becomes aware of the need to disqualify himselfrecuse
from participation in a particular matter to which he the employee has been assigned should
11
notify the person responsible for his assignment. An employee who is responsible for his own
assignment should must take whatever steps are necessary to ensure that he the employee does
not participate in the matter. Appropriate oral or written notification of the employee's
disqualification recusal may be made to an agency ethics official, coworkers, by the employee or
a supervisor to document and help effectuate the employee’s recusalensure that the employee is
not involved in a matter from which he is disqualified. Public filers must comply with additional
notification requirements set forth in § 2635.607
Example 1 to paragraph (b): An employee of the Department of Veterans Affairs (VA) is
participating in the audit of a contract for laboratory support services. Before sending his resume
to a lab which is a subcontractor under the VA contract, the employee should disqualify himself
recuse from participation in the audit. Since he cannot withdraw from participation in the
contract audit without the approval of his supervisor, he should disclose his intentions tonotify
his supervisor in orderof his need to recuse for ethics reasons so that appropriate adjustments in
his work assignments can be made.
Example 2 to paragraph (b): An employee of the Food and Drug Administration (FDA) is
contacted in writing by a pharmaceutical company concerning possible employment with the
company. The employee is involved in testing a drug forreviewing an application from the same
pharmaceutical company, which the company is seeking FDA approval for a new drug product.
Once the employee makes. Before making a response that is not a rejection to the company’s
communication concerning prospective employment, the employee should disqualify himself
must recuse from further participation in the testingreview of the application. Where he has
authority to ask his colleague to assume his testingreviewing responsibilities, he may accomplish
his disqualificationrecusal by transferring the work to that coworkerthe employee designated to
cover for him. However, to ensure that his colleague and others with whom he had been working
on the recommendationsreview do not seek his advice regarding testingthe review of the
application or otherwise involve him in the matter, it may be necessary for him to advise those
individuals of his disqualificationrecusal.
(c) Documentation. An employee, other than a public filer, need not file a written
disqualification recusal statement unless he is required by part 2634 of this chapter to file written
evidence of compliance with an ethics agreement with the Office of Government Ethics or a
designated agency ethics official, or is specifically asked by an agency ethics official or the
person responsible for his the employee’s assignment to file a written disqualification recusal
12
statement. However, it is often prudent for an employee may elect to create a record of his or her
actions by providing written notice to an agency ethics official, a supervisor, or other appropriate
official. Public filers must comply with the documentation requirements set forth in § 2635.607.
Example 1: An employee of the Department of Veterans Affairs is participating in the audit
of a contract for laboratory support services. Before sending his resume to a lab which is a
subcontractor under the VA contract, the employee should disqualify himself from participation
in the audit. Since he cannot withdraw from participation in the contract audit without the
approval of his supervisor, he should disclose his intentions to his supervisor in order that
appropriate adjustments in his work assignments can be made.
Example 2: An employee of the Food and Drug Administration is contacted in writing by a
pharmaceutical company concerning possible employment with the company. The employee is
involved in testing a drug for which the company is seeking FDA approval. Before making a
response that is not a rejection, the employee should disqualify himself from further participation
in the testing. Where he has authority to ask his colleague to assume his testing responsibilities,
he may accomplish his disqualification by transferring the work to that coworker. However, to
ensure that his colleague and others with whom he had been working on the recommendations do
not seek his advice regarding testing or otherwise involve him in the matter, it may be necessary
for him to advise those individuals of his disqualification.
Example 3: 1 to paragraph (c): The General Counsel of a regulatory agency wishes to
engagewill be engaging in discussions regarding possible employment as corporate counsel of a
regulated entity. Matters directly affecting the financial interests of the regulated entity are
pending within the Office of General Counsel, but the General Counsel will not be called upon to
act in any such matter because signature authority for that particular class of matters has been
delegated to an Assistant General Counsel. Because the General Counsel is responsible for
assigning work within the Office of General Counsel, he can, in fact, accomplish his
disqualificationrecusal by simply avoiding any involvement in matters affecting the regulated
entity. However, because it is likely to be assumed by others that the General Counsel is
involved in all matters within the cognizance of the Office of General Counsel, he would be wise
to filebenefit from filing a written disqualificationrecusal statement with an agency ethics official
or the Commissioners of the regulatory agency and provideproviding his subordinates with
written notification of his disqualification, or he recusal. He may also be specifically
askeddirected by an agency ethics official or the Commissioners to file a written
disqualificationrecusal statement. If the General Counsel is a public filer, he must comply with
the documentation requirements set forth in § 2635.607.
Example 4: A scientist is employed by the National Science Foundation as a special
Government employee to serve on a panel that reviews grant applications to fund research
relating to deterioration of the ozone layer. She is discussing possible employment as a member
of the faculty of a university that several years earlier received an NSF grant to study the effect
of fluorocarbons, but has no grant application pending. As long as the university does not submit
13
a new application for the panel's review, the employee would not have to take any action to
effect disqualification.
(d) Agency determination of substantial conflict. Where the agency determines that the
employee’s action in seeking employment with a particular person will require his
disqualificationthe employee’s recusal from matters so central or critical to the performance of
histhe employee’s official duties that the employee’s ability to perform the duties of histhe
employee’s position would be materially impaired, the agency may allow the employee to take
annual leave or leave without pay while seeking employment, or may take other appropriate
administrative action.
§ 2635.605 Waiver or authorization permitting participation while seeking employment.
(a) Waiver. Where, as defined in § 2635.603(b)(1)(i), an employee is engaged in
discussions that constitute employment negotiations for purposes of 18 U.S.C. 208(a), the
employee may not participate personally and substantially in a particular matter that, to the
employee’s knowledge, has a direct and predictable effect on the financial interests of a
prospective employer. The employee may participate in such matters only after receivingwhere
the employee has received a written waiver issued under the authority of 18 U.S.C. 208(b)(1) or
(b)(3). These waivers are described in § 2635.402(d). See also) and part 2640, subpart C of part
2640 of this chapter. For certain employees, a regulatory exemption under the authority of 18
U.S.C. 208(b)(2) may also apply (see part 2640, subpart B of part 2640 of this chapter),
including § 2640.203(g) and (i).
Example 1: to paragraph (a): An employee of the Department of Agriculture has had two
telephone conversations with an orange grower regarding possible employment. They have
discussed the employee's qualifications for a particular position with the grower, but have not yet
discussed salary or other specific terms of employment. The employee is negotiating for
14
employment within the meaning of 18 U.S.C. 208(a) and § 2635.603(b)(1)(i).) with an orange
grower. In the absence of a written waiver issued under 18 U.S.C. 208(b)(1), she may not take
official action on a complaint filed by a competitor alleging that the grower has shipped oranges
in violation of applicable quotas.
(b) Authorization by agency designee. Where an employee is seeking employment within
the meaning of § 2635.603(b)(1) ()(ii) or (iii),) and is not negotiating for employment, a
reasonable person would be likely to question histhe employee’s impartiality if hethe employee
were to participate personally and substantially in a particular matter that, to the employee’s
knowledge, has a direct and predictable effect on the financial interests of any such prospective
employer. The employee may participate in such matters only where the agency designee has
authorized hisin writing the employee’s participation in accordance with the standards set forth
in § 2635.502(d).
Example 1: to paragraph (b): Within the past month, an employee of the Education
Department of Education mailed her resume to a university. She is thus seeking employment
with the university within the meaning of § 2635.603(b)(1)(ii) even though she has received no
reply.). In the absence of specific authorization by the agency designee in accordance with
§ 2635.502(d), she may not participate personally and substantially in an assignment to review a
grant application submitted by the university.
§ 2635.606 Recusal based on an arrangement concerning prospective employment or otherwise
after negotiations.
(a) Employment or arrangement concerning employment. An employee shall be disqualified
from participatingmay not participate personally and substantially in a particular matter that, to
the employee’s knowledge, has a direct and predictable effect on the financial interests of the
person by whom he or she is employed or with whom he or she has an arrangement concerning
future employment, unless authorized to participate in the matter by a written waiver issued
under the authority of 18 U.S.C. 208 (b)(1) or (b)(3), or by a regulatory exemption under the
15
authority of 18 U.S.C. 208 (b)(2). These waivers and exemptions are described in § 2635.402(d).
See also) and part 2640, subparts B and C of part 2640 of this chapter.
Example 1: to paragraph (a): A military officer has accepted a job with a defense contractor
tothat will begin in six months, after his retirement from military service. During the period that
he remains with the Government, the officer may not participate personally and substantially in
the administration of a contract with that particular defense contractor unless he has received a
written waiver under the authority of 18 U.S.C. 208(b)(1).
Example 2: to paragraph (a): An accountant has just been offered a job with the Office of
the Comptroller of the Currency (OCC) which involves a two-year limited appointment. Her
private employer, a large corporation, believes the job will enhance her skills and has agreed to
give her a two-year unpaid leave of absence at the end of which she has agreed to return to work
for the corporation. During the two-year period that she is to be a COCan OCC employee, the
accountant will have an arrangement concerning future employment with the corporation that
will require her disqualificationrecusal from participation personally and substantially in any
particular matter that, to her knowledge, will have a direct and predictable effect on the
corporation'scorporation’s financial interests.
(b) Offer rejected or not made. The agency designee for the purpose of § 2635.502(c) may,
in an appropriate case, determine that an employee not covered by the preceding paragraph who
has sought but is no longer seeking employment nevertheless shallwill be subject to a period of
disqualificationrecusal upon the conclusion of employment negotiations. Any such determination
shallwill be based on a consideration of all the relevant factors, including those listed in
§ 2635.502(d), and a determination that the concern that a reasonable person may question the
integrity of the agency’s decisionmaking decision-making process outweighs the Government’s
interest in the employee’s participation in the particular matter.
Example 1: to paragraph (b): An employee of the Securities and Exchange Commission was
relieved of responsibility for an investigation of a broker-dealer while seeking employment with
the law firm representing the broker-dealer in that matter. The firm did not offer her the
partnership position she sought. Even though she is no longer seeking employment with the firm,
she may continue to be disqualifiedrecused from participating in the investigation based on a
determination by the agency designee that the concern that a reasonable person might question
whether, in view of the history of the employment negotiations, she could act impartially in the
matter outweighs the Government’s interest in her participation.
16
§ 2635.607 Notification requirements for public financial disclosure report filers regarding
negotiations for or agreement of future employment or compensation.
(a) Notification regarding negotiations for or agreement of future employment or
compensation. A public filer who is negotiating for or has an agreement of future employment or
compensation with a non-Federal entity must file a statement notifying an agency ethics official
of such negotiation or agreement within three business days after commencement of the
negotiation or agreement. This notification statement must be in writing, must be signed by the
public filer, and must include the name of the non-Federal entity involved in such negotiation or
agreement and the date on which the negotiation or agreement commenced. When a public filer
has previously complied with the notification requirement in this section regarding the
commencement of negotiations, the filer need not file a separate notification statement when an
agreement of future employment or compensation is reached with the previously identified nonFederal entity. There is also no requirement to file another notification when negotiations have
been unsuccessful. However, employees may want to do so to facilitate the resumption of their
duties.
Example 1 to paragraph (a): An employee of the Merit Systems Protection Board who is a
public filer was in private practice prior to his Government service. He receives a telephone call
from a partner in a law firm who inquires as to whether he would be interested in returning to
private practice. During this initial telephone call with the law firm partner, the employee
indicates that he is interested in resuming private practice. They discuss generally the types of
issues that would need to be agreed upon if the employee were to consider a possible offer to
serve as “of counsel” with the firm, such as salary, benefits, and type of work the employee
would perform. The employee has begun negotiating for future employment with the law firm.
Within three business days after this initial telephone call, he must file written notification of the
negotiations with his agency ethics official.
Example 2 to paragraph (a): The employee in the previous example also negotiates a
possible contract with a publisher to begin writing a textbook after he leaves Government
service. Within three business days after commencing negotiations, the employee must file
17
written notification with his agency ethics official documenting that he is engaged in
negotiations for future compensation with the book publisher.
(b) Notification of recusal. A public filer who files a notification statement pursuant to
paragraph (a) of this section must file with an agency ethics official a notification of recusal
whenever there is a conflict of interest or appearance of a conflict of interest with the nonFederal entity identified in the notification statement. The notification statement and the recusal
statement may be contained in a single document or in separate documents.
(c) Advance filing of notification and recusal statements. When a public filer is seeking
employment within the meaning of § 2635.603(b)(1)(ii) or (iii) or is considering seeking
employment, the public filer may elect to file the notification statement pursuant to paragraph (a)
of this section before negotiations have commenced and before an agreement of future
employment or compensation is reached. A public filer may also elect to file the recusal
statement pursuant to paragraph (b) of this section before the public filer has a conflict of interest
or appearance of a conflict of interest with the non-Federal entity identified in the notification
statement. The public filer need not file the document again upon commencing negotiations or
reaching an agreement of future employment or compensation. The advance filing of any such
document is not construed as a statement that negotiations have or have not commenced or that a
conflict of interest does or does not exist. Although the Office of Government Ethics encourages
advance filing when a public filer anticipates a realistic possibility of negotiations or an
agreement, the failure to make an advance filing does not violate this subpart or the principles of
ethical conduct contained in § 2635.101(b).
Example 1 to paragraph (c): An employee of the Federal Labor Relations Authority who is a
public filer began negotiating for future employment with a law firm. At the time he began
negotiating for future employment with the law firm, he was not participating personally and
substantially in a particular matter that, to his knowledge, had a direct and predictable effect on
18
the financial interest of the law firm. Although the employee was not required to file a recusal
statement because he did not have a conflict of interest or appearance of a conflict of interest
with the law firm identified in the notification statement, the Office of Government Ethics
encourages the employee to submit a notification of recusal at the same time that he files the
notification statement regarding the negotiations for future employment in order to ensure that
the requirement of paragraph (b) of this section is satisfied if a conflict of interest or an
appearance of a conflict of interest later arises. The agency ethics official should counsel the
employee on applicable requirements but is under no obligation to notify the employee’s
supervisor that the employee is negotiating for employment.
Example 2 to paragraph (c): An employee of the General Services Administration is
contacted by a prospective employer regarding scheduling an interview for the following week to
begin discussing the possibility of future employment. The employee discusses the matter with
the ethics official and chooses to file a notification and recusal statement prior to the interview.
The notification and recusal statement contain the identity of the prospective employer and an
estimated date of when the interview will occur. The employee has complied with the
notification requirement of section 17 of the STOCK Act.
(d) Agreement of future employment or compensation for the purposes of § 2635.607 means
any arrangement concerning employment that will commence after the termination of
Government service. The term also means any arrangement to compensate in exchange for
services that will commence after the termination of Government service. The term includes,
among other things, an arrangement to compensate for teaching, speaking, or writing that will
commence after the termination of Government service.
19
September 23, 2016
LA-16-08
LEGAL ADVISORY
TO:
Designated Agency Ethics Officials
FROM:
Walter M. Shaub, Jr.
Director
SUBJECT:
Introduction to the Primary Post-Government Employment Restrictions
Applicable to Former Executive Branch Employees
This Legal Advisory provides a plain language discussion for agency ethics officials,
departing employees, and former employees on the post-Government employment restrictions,
particularly those found in certain provisions of the primary post-Government employment
statute applicable to former employees of the executive branch, 18 U.S.C. § 207. OGE’s
regulations provide more detailed guidance at 5 C.F.R. part 2641.
Readers should be mindful that additional legal authorities not addressed in this Legal
Advisory may be applicable to certain individuals. This Legal Advisory provides a general
introduction to the primary post-Government employment restrictions under a criminal law
applicable to former executive branch employees but does not offer comprehensive guidance on
the application of that law to individual circumstances. Departing and former employees should
consult their agencies’ ethics officials for guidance regarding their individual circumstances.
The post-Government employment restrictions described in Section I of this Legal
Advisory apply to all former employees. The additional restrictions described in Section II apply
only to certain high-level officials who are referred to as “senior” and “very senior” employees.
The responses to Questions 15 and 17 will help you determine if you are a “senior” or “very
senior” employee. It is important to recognize that the restrictions applicable to “senior” and
“very senior” employees are in addition to the restrictions applicable to all employees. Therefore,
“senior” and “very senior” employees should read both Sections I and II of this Legal Advisory.
I. Restrictions Applicable to All Employees
Q1.
What is the purpose of the post-Government restrictions under 18 U.S.C. § 207?
The primary source of post-Government employment ethics restrictions is found at
18 U.S.C. § 207. A critical function of section 207 is to prevent former Government employees
from leveraging relationships forged during their Government service to assist others in their
dealings with the Government. Some provisions of section 207 also impose limitations on the
use of nonpublic information and on behind-the-scenes activities. At the same time, none of the
restrictions of section 207 prohibit any former employee, regardless of Government rank or
position, from accepting employment with any particular private or public employer. Rather,
section 207 prohibits a former employee from providing certain services to, or on behalf of, nonFederal employers or other persons, whether or not done for compensation. In this way, the
statute carefully balances various governmental interests, including the Government’s interests in
both recruiting personnel and guarding against certain acts involving, or appearing to involve,
the unfair use of prior Government employment.
Q2.
I left Government service to work for a non-Federal employer. What postGovernment employment restrictions apply to me?
As mentioned above, the primary source of post-Government employment ethics
restrictions is found at 18 U.S.C. § 207. This law, which carries both criminal and civil penalties
for violations, is designed to prevent former employees from taking certain actions after leaving
the Government that could involve the unfair use of influence and information gained through
Government employment. There are two basic restrictions in 18 U.S.C. § 207(a) that are
applicable to all former executive branch employees, including former special Government
employees. There are further restrictions in 18 U.S.C. § 207 for employees involved in trade or
treaty negotiations, as well as the additional restrictions for “senior” and “very senior
employees,” discussed below.1
(a) Lifetime Ban on Matters in Which You Participated
Section 207(a)(1) bars you from making, with the intent to influence, any communication
to or appearance before an employee of the United States on behalf of another regarding a
“particular matter involving specific parties” in which you participated personally and
substantially as a Government employee. This post-Government employment restriction on
communications and appearances is permanent and continues for the life of the particular matter.
(b) Two-Year Ban on Matters Under Your Official Responsibility
Section 207(a)(2) bars you from making, with the intent to influence, any communication
to or appearance before an employee of the United States on behalf of another regarding a
“particular matter involving specific parties” if you were not personally involved in the matter
but the matter was pending under your “official responsibility” at any time during your last year
of Government service. This post-Government employment restriction on communications and
appearances continues for two years after you leave the Government.
(c) Limitations on the Lifetime Ban and the Two-Year Ban
Both the lifetime ban and the two-year ban, which are applicable to all employees, bar
certain communications to the Government and certain appearances before the Government, but
1
A one-page chart describing the post-Government employment restrictions found in 18 U.S.C. § 207 is attached.
2
they apply only under certain conditions. First, both of these restrictions apply only when the
matter is a “particular matter involving specific parties.” Examples of particular matters
involving specific parties include contracts, cases, claims, investigations, grants, and other
matters focused on identified parties. Second, unlike the restrictions in 18 U.S.C. § 207(b) and
(f), which are discussed in response to Questions 4 and 20 below and are applicable only to
certain employees, they do not cover behind-the-scenes activities if there is no communication to
or appearance before the Government. Third, they are limited to communications to and
appearances before any executive branch employee that are made with the “intent to influence,”
but you should be aware that “intent to influence” has been interpreted quite broadly. Fourth,
they are limited to communications and appearances made on behalf of any other “person,” but
you should be aware that the word “person” includes individuals, organizations, companies, state
and local governments, and other entities. Finally, both of these restrictions are limited to matters
in which the United States is a party or has a direct and substantial interest, but it is probably
safest for you to assume that the United States has a direct and substantial interest in any matter
that you are considering addressing in a communication to or appearance before the Government.
Q3.
Am I prohibited from working for any specific employer?
None of the provisions of 18 U.S.C. § 207 directly bar you from accepting employment
with any specific employer after Government service. However, if you are retired from the
uniformed services or continue to serve as a member of the reserve component after leaving
Government, the Emoluments Clause of the U.S. Constitution (Article I, § 9, cl. 8) places certain
restrictions on your ability to accept employment and compensation from foreign governments,
including organizations owned or controlled by a foreign government. In addition, the
Procurement Integrity Act imposes certain restrictions on sources of compensation if you had
certain responsibilities in connection with a contract for more than $10,000,000. Your agency’s
ethics officials can help you determine whether you are covered by these or other authorities
restricting your post-Government employment activities.
Q4.
May I provide “behind-the-scenes” assistance to another person, such as giving
advice or drafting a document, if I avoid communications to and appearances before
the Government?
In most cases, the answer is yes. As explained in response to Question 2 above, most of
the restrictions under 18 U.S.C. § 207 are limited to appearances and communications. They do
not bar you from providing behind-the-scenes assistance to any person or entity. If you provide
behind-the-scenes assistance, however, you should not have any communication to the
Government attributed to you by another.
An example of one restriction that limits more than only appearances and
communications is found in 18 U.S.C. § 207(b). Section 207(b) applies to former employees who
worked on certain ongoing trade and treaty negotiations. This restriction applies to you if you
participated in a covered trade or treaty negotiation during your last year of Government service
and had access to information that would be exempt from release to the public under the
Freedom of Information Act. In that case, section 207(b) bars you from representing, or aiding or
advising, any other person concerning that trade or treaty negotiation on the basis of that
3
information. This restriction lasts for one year after your Government service terminated.
Additionally, as explained more fully in Question 20, 18 U.S.C. § 207(f) bars former “senior”
and “very senior” employees from aiding, assisting, and representing certain foreign entities in
an attempt to influence the United States.
Q5.
Do the restrictions apply even if I am not getting paid?
Yes. The restrictions under 18 U.S.C. § 207 apply even if you are not receiving
compensation for your activities.
Q6.
May I represent myself without violating the restrictions under 18 U.S.C. § 207?
Yes, but you should be careful to ensure that you are, in fact, representing only yourself.
For example, if you make a communication or appearance regarding a matter in which your new
employer has an interest, you could be considered to be representing your employer’s interest as
opposed to your own. This is true even if you believe that your communication is consistent with
the Government’s interests.
It is important to remember that the legal term “person” can include individuals,
organizations, companies, state and local governments, and other entities. This interpretation of
the term “person” includes single-member corporations or LLCs that you have created for your
own post-Government employment activities. Even if you are the sole owner and employee of
that legal entity, it is a separate “person” from you. Thus, for example, if you created a legal
entity and that entity has a contract with the Government, you are acting on behalf of the legal
entity and not solely on your own behalf. In that case, the restrictions under 18 U.S.C. § 207
apply to your communications to and appearances before the Government in connection with the
contract and any other business your legal entity is seeking to do with the Government.
Q7.
Do the restrictions under 18 U.S.C. § 207(a) apply to interactions with agencies
other than my former agency?
Yes. The restrictions apply to a communication to or appearance before any officer or
employee of any department, agency, court, or court-martial of the United States. The
restrictions do not extend to a communication to or appearance before a Member of Congress, a
congressional committee, or their staffs.
Q8.
When I was in the Government, I worked on a regulation establishing standards for
a regulated industry. After leaving Government service, may I submit a comment on
this regulation on behalf of my non-Federal employer?
It depends. If you are not a “senior” or “very senior” employee, you may submit a
comment on the regulation, even if you submit the comment on behalf of another person,
because the regulation is not a “particular matter involving specific parties.” As discussed in
response to Question 2, the legal restrictions applicable to you are limited to “particular matters
involving specific parties.” A regulation covering an entire industry does not involve specific
parties.
4
In contrast, if you are a “senior” or “very senior” employee, you may not submit a
comment on the regulation on behalf of any other person. As explained in Part II of this Legal
Advisory, the legal restrictions applicable to “senior” and “very senior” employees are broader in
scope. They are not limited to “particular matters involving specific parties.”
Q9.
When I was in Government, I helped draft one provision of a contract for my
agency. After leaving Government, may I represent the contractor in a dispute over
a different provision of the contract that I did not help draft?
No. You may not represent the contractor in the dispute. The contract as a whole is the
“particular matter involving specific parties.” A dispute over any part of the contract triggers the
lifetime ban under 18 U.S.C. § 207(a)(1). The restriction applies to you, even if you worked on a
different provision of the contract. If you are not sure whether the dispute involves the same
contract, you should consult your former agency’s ethics officials.
Keep in mind, however, that the restriction applies to this specific contract and not more
broadly to the contractor. If a dispute were to arise between your former agency and the
contractor in connection with a different contract in which you were not involved, the separate
contract would generally be a different “particular matter involving specific parties” than the one
in which you participated as a Government employee. As a result, the restriction would not apply
to that other contract.
As explained in Part II of this Legal Advisory, if you were a “senior” or “very senior”
employee, you are barred for one or two years from any communications to and appearances
before your former agency. In that case, whether you could represent the contractor would
depend on how much time has passed since you left Government.
Q10. In the last year of my Government service, employees under my supervision
handled several grants. I did not personally work on any of the grants. I did not
even review or approve them. I left the Government three months ago. May I
represent someone before the Government on any of these grants?
No. Section 207(a)(2) imposes a two-year ban in connection with any “particular matter
involving specific parties” that was pending under your “official responsibility” during the last
year of your Government service. The prohibition under section 207(a)(2) applies even if you did
not personally participate in the matter. In this case, the two-year ban applies because: (1) the
grants were “pending under your official responsibility” in the last year of your Government
service; (2) the grants were particular matters involving specific parties (in this instance, the
parties were the “grantees”); and (3) you terminated your Government service less than two
years ago. You may not represent anyone to the Government in connection with these grants for
the first two years after your Government service ended. (As discussed in response to Question
2, however, both the lifetime ban for matters in which you personally participated and the twoyear ban for matters under your “official responsibility” are limited to communications and
appearances made on behalf of another person and do not prohibit behind-the-scenes activity.)
5
Q11. Would I violate the restrictions under 18 U.S.C. § 207 by merely attending a
meeting on behalf of another person if I do not speak?
There is a risk that your mere presence at the meeting could violate the restrictions under
18 U.S.C. § 207. The restrictions under section 207 include a ban on appearances before the
Government, if made with the intent to influence. Your presence, even without any explicit
communication, may in many instances be construed as an attempt to influence the Government.
As a practical matter, there is also a realistic possibility that you will be asked a question during
or after the meeting. Given the considerable risks associated with attending meetings when you
are covered by the restrictions under section 207, it is recommended that you consult an agency
ethics official before attending any such meeting.
Q12. I currently work for a Government contractor. My employer has just assigned me to
work on a contract in which I was previously involved before leaving the
Government. May I direct questions to or share information with employees of the
agency regarding that matter?
The lifetime ban under 18 U.S.C. § 207(a)(1) bars you from communications with the
intent to influence on behalf of your employer. Communications are permitted if they are not
made with the “intent to influence.” As noted in response to Question 2, however, “intent to
influence” has been interpreted quite broadly and, depending on the circumstances, can include
your discussion of purely factual information, if that information is intended to influence the
Government. There is considerable risk that you will cross over this threshold and be deemed to
possess the requisite “intent to influence” if you are communicating to agency employees about
this contract.
Q13. After leaving to work for a non-Federal employer, may I attend a purely social
event at my former agency, such as a celebration for a retiring employee held in the
employee’s office suite?
Yes. Section 207 does not prohibit social events or purely social communications to
employees of your former agency. It is important for you to be mindful, however, that you could
be considered to have made an appearance or communication with the intent to influence in
connection with a particular matter if you discuss the matter at the event. The subject of the
discussion, rather than the nature of the event, will determine whether section 207 applies.
Q14. Do any additional post-Government employment restrictions apply to me if I was a
political appointee and was required to sign the Ethics Pledge under Executive
Order 13490?
Yes. Full-time, non-career appointees required to sign the Ethics Pledge under Executive
Order 13490 are subject to additional restrictions under the terms of that pledge. You were
required to sign the Ethics Pledge if you were a full-time, non-career Presidential or VicePresidential appointee, non-career appointee in the Senior Executive Service (or other SES-type
system), or appointee to a position that has been excepted from the competitive service by reason
6
of being of a confidential or policymaking character (Schedule C positions and other positions
excepted under comparable criteria) in an executive agency.
Paragraph 5 of the Ethics Pledge prohibits any former appointee who is a registered
lobbyist from lobbying any covered executive branch official2 or non-career senior Executive
Service appointee for the remainder of the Presidential administration in which they signed the
Ethics Pledge. This prohibition is in addition to the restrictions found in 18 U.S.C. § 207. As
discussed later in this Legal Advisory, former “senior” employees are also covered by paragraph
4 of the Ethics Pledge, which extends the length of a post-Government employment restriction
applicable to them under 18 U.S.C. § 207(c).
II. Additional Restrictions Applicable to Senior and Very Senior Employees
The following questions and answers address additional restrictions that apply only to
former “senior” and “very senior” employees. These restrictions do not apply to other
employees. Former “senior” and “very senior” employees are also subject to the restrictions
discussed in Section I above that are applicable to all former employees
Q15. Am I a former “senior” employee?
The term former “senior” employee refers to the following individuals:
(a) Anyone who occupied a position paid at a rate of basic pay that was equal to or above
86.5% of the pay level for level II of the Executive Schedule. In calendar year 2016,
that threshold is $160,111.50. “Rate of basic pay” does not include locality-based
adjustments or additional pay such as bonuses, awards, and various allowances. Note
that the determination as to whether you were a “senior” employee is based on the
pay level that applied to level II of the Executive Schedule at the time you left senior
service.
(b) A former active duty commissioned officer of the uniformed services who served in a
position for which the pay grade was O-7 or above.
(c) Anyone who occupied a position for which the rate of pay is specified in or fixed
according to the Executive Schedule.
(d) Anyone appointed by the President to a position under 3 U.S.C. § 105(a)(2)(B) or the
Vice President to a position under 3 U.S.C. § 106(a)(1)(B) (These appointees hold
high-level positions in the Executive Office of the President.)
2
Covered executive branch officials include the President, the Vice President, any official in the Executive Office of
the President, any Executive Schedule official (EL I-V), any uniformed officer at pay grade 0-7 or above, and any
Schedule C employee. See Executive Order 13490, § 2(d) (Jan. 21, 2009) (citing 2 U.S.C. § 1602(3)); see also OGE
DO-10-004, at 4-5 (Feb. 22, 2010).
7
If you are not sure whether you are a former “senior” employee, you should consult your
agency’s ethics officials. OGE’s regulations address the definition of “senior” employee at
5 C.F.R. § 2641.104.
Q16. If I am a former “senior” employee, what additional restrictions apply to me?
In addition to other post-Government employment restrictions discussed in this Legal
Advisory, former “senior” employees are subject to a one-year “cooling off” period. If you are a
former “senior” employee, section 207(c) bars you from making, with the intent to influence,
communications to and appearances before your former agency on behalf of any other person for
one year after you ceased to be a “senior” employee.
Although time-limited, this one-year cooling off period for former “senior” employees
under section 207(c) applies to a broader range of activities than either the lifetime ban or the
two-year ban. (Those two restrictions are discussed in more detail in response to Question 2.)
Those restrictions apply only to “particular matters involving specific parties.” The additional
restriction under section 207(c) applies to any matter on which you seek official action, including
a new matter that was not pending when you were in Government. The concept of a “matter” is
very broad. Examples of communications seeking action on official matters include discussing
broad policy options and expressing concern about regulatory changes an agency is considering.
This one-year cooling off period applies to communications to and appearances before
any agency in which you served within the one-year period prior to your terminating as a
“senior” employee. The scope of this restriction includes each and every agency in which you
served during that one-year period. Thus, if you were a “detailee” from one agency to another,
the restriction applies to both agencies.
If you were required to sign the Ethics Pledge under Executive Order 13490, paragraph 4
of the pledge extends this cooling-off period to two years from the end of your service as a
“senior” employee. You are also subject to an additional requirement under paragraph 5 of the
pledge, which is applicable to all pledge signers and is discussed in the response to Question 14
above.
In addition to the one-year cooling off period under section 207(c), section 207(f) bars
“senior” employees from engaging in certain activities on behalf of foreign governments or
foreign political parties. This additional restriction is discussed in response to Question 20
below.
Q17. Am I a former “very senior” employee?
The term former “very senior” employee refers to the following individuals:
(a) Anyone who occupied a position in the executive branch at the rate payable for level I
of the Executive Schedule ($205,700 in calendar year 2016) (e.g., Cabinet Members),
and employees of the Executive Office of the President who occupied a position paid
at the rate payable for level II of the Executive Schedule ($185,100 in calendar year
8
2016). Note that the determination as to whether you were a “very senior” employee
is based on the pay level for the applicable provision of the Executive Schedule at the
time you left very senior service.
(b) The Vice President and any former employee in the Executive Office of the President
(EOP) who was appointed by the President to a position under 3 U.S.C.
§ 105(a)(2)(A) or by the Vice President to a position under 3 U.S.C. § 106(a)(1)(A).
If you are not sure whether you are a former “very senior” employee, you should consult
your agency’s ethics officials. OGE’s regulations address the definition of “very senior”
employee at 5 C.F.R. § 2641.104.
Q18. If I am a former “very senior” employee, what additional restrictions apply to me?
In addition to other post-Government employment restrictions discussed in this Legal
Advisory, former “very senior” employees are subject to a two-year “cooling off” period. If you
are a former “very senior” employee, section 207(d) bars you from making, with the intent to
influence, communications to and appearances before the following Government officials on
behalf of any other person for a period of two years after you ceased to be a “very senior”
employee:
(a) Any officer or employee of the agency (or agencies) in which you served in a “very
senior” position during the one-year period before terminating your “very senior”
service.
(b) Any officer or employee of the Government in an Executive Schedule position,
including individuals outside your former agency.
The additional restriction for former “very senior” employees under section 207(d)
applies to a broader range of activities than either the lifetime ban or the two-year ban. (Those
two restrictions are discussed in more detail in response to Question 2.) Those restrictions apply
only to “particular matters involving specific parties.” The additional restriction under section
207(d) applies to any matter on which you seek official action, including a new matter that was
not pending when you were in Government. The concept of a “matter” is very broad. Examples
of communications seeking action on official matters include discussing broad policy options
and expressing concern about regulatory changes an agency is considering.
In addition to the two-year cooling off period under section 207(d), section 207(f) bars
“very senior” employees from engaging in certain activities on behalf of foreign governments or
foreign political parties. This additional restriction is discussed in response to Question 20
below.
9
Q19. I was a “senior” or “very senior” employee in an agency that was part of a larger
parent agency (e.g., the Department of the Army, for which the parent agency is the
Department of Defense). Am I barred from communications and appearances
before the parent agency and other sub-agencies (e.g., the Department of the Air
Force)?
The answer depends on whether you were a “senior” employee or a “very senior”
employee. If you were a “senior” employee, the answer also depends on the pay for your former
position.
(a) Former “very senior” employees
For former “very senior” employees, the additional restrictions under section 207(d)
always apply to the entire agency, including the parent agency and all components of the agency.
(b) Former “senior” employees whose pay was specified in or fixed according to the
Executive Schedule and anyone appointed to the Executive Office of the President
under 3 U.S.C. § 105(a)(2)(B) or 3 U.S.C. § 106(a)(1)(B)
For former “senior” employees whose pay was specified in or fixed according to the
Executive Schedule and for “senior” officials in the Executive Office of the President, the
additional restrictions under section 207(c) always apply to the entire agency, including the
parent agency and all components of the agency.
(c) Other former “senior” employees
For other former “senior” employees the additional restrictions under section 207(c),
extend to the entire agency in which they served, including the parent agency and all components
of the agency, unless OGE has approved separate “agency component” designations for their
agencies. All approved separate “agency component” designations are listed in Appendix B to
OGE’s regulations at 5 C.F.R. Part 2641. If your agency is included in that list, the designated
“agency components” are treated as separate from the parent agency and from one another for
purposes of section 207(c). In that case, the additional restrictions for former “senior” employees
under section 207(c) apply only to your former agency component, and not to the parent agency
or other agency components.
Q20. Do any additional restrictions on former “senior” and “very senior” employees
apply to me if I am working with a foreign entity, such as a foreign government or
political party?
Yes. For one year from the date you terminate your service as a former “senior”
employee or “very senior” employee, section 207(f) bars you from representing, aiding, or
assisting a foreign government or foreign political party with the intent to influence any United
States employee. It is important to note that this additional restriction under section 207(f) is not
limited to communications and appearances; it also prohibits you from working behind-thescenes to aid or advise any of these foreign entities in attempting to influence the Government.
10
This restriction continues for a period of one year after you ceased to be a “senior” or “very
senior” employee. Additionally, unlike the other provisions of section 207, section 207(f) also
prohibits you from representing, aiding, or assisting a foreign government or foreign political
party in an attempt to influence any employee of the legislative branch, including Members of
Congress.
Q21. Is there an exception to the additional restrictions on former “senior” and “very
senior” employees that would allow me to represent a political campaign?
An exception at section 207(j)(7) may permit you to make communications or
appearances on behalf of a candidate, the candidate’s committee, a national or state committee,
or a political party if you meet the applicable conditions. A member of the Presidential
Transition Team who otherwise satisfies the elements of the exception may also continue to
communicate on behalf of the President-elect until the inauguration on January 20.
There are several conditions that must be met in order to qualify for this exception. The
exception does not apply if you are acting wholly or partly on behalf of any person other than the
candidate, committee, or party. The exception does not apply if you work for anyone other than
the candidate, committee, or party (unless your employer represents only candidates or certain
types of political entities). For this reason, the exception is unavailable to you if you work for a
law firm or consulting firm that represents clients other than the types of political entities
specified in the statute. Other limitations to this exception also apply. For more information on
this exception, contact the Designated Agency Ethics Official for your former agency. In
addition, OGE has issued an informal advisory opinion, OGE 08 x 4 (Mar. 26, 2008), that
addresses this exception in more detail.
Q22. Do the additional restrictions on former “senior” and “very senior” employees
apply to me if I work for a nonprofit organization or state or local government?
In most cases, the answer is yes. These restrictions normally apply without regard to the
status of your employer, client, or person on behalf of whom you are acting. The statute does
contain some limited exceptions to these additional restrictions for former “senior” and “very
senior” employees under section 207(c) and (d), but it is important for you to understand that
these exceptions are not always applicable to other restrictions under 18 U.S.C. § 207. Therefore,
before you rely on an exception, you must be careful to ensure that it covers all potentially
applicable provisions of section 207.
Some of the exceptions apply to employees of certain types of non-Federal employers.
For example, one exception covers certain representational activities on behalf of a medical
research organization or hospital that has nonprofit status under section 501(c)(3) of the tax code.
Another exception covers certain representational activities on behalf of an accredited, degreegranting institution of higher education, as defined in section 101 of the Higher Education Act of
1965. A third exception covers certain representational activities on behalf of a state or local
agency. However, these three exceptions apply only if you are an employee, as opposed to a
consultant or contractor, of that outside entity. These three exceptions do not permit you to make
contacts or appearances that would be barred by the lifetime ban under section 207(a)(1) for
11
matters in which you were personally involved or the two-year ban under section 207(a)(2) for
matters under your official responsibility. Because the requirements for relying on these
exceptions are very specific, you should consult your agency’s ethics officials before relying on
an exception.
Q23. Are there any other exceptions in section 207 to the additional restrictions on
former “senior” and “very senior” employees?
Yes, there are additional exceptions in section 207(j) that may apply in very limited
situations. Because the requirements for relying on these exceptions are very specific, you should
consult your agency’s ethics officials before relying on them.
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Substantive Post-Employment Prohibitions Applicable to Executive Branch Employees*
18 U.S.C. § 207
Section
Employees
Length of Restriction
207(a)(1)
All grades and
ranks (except
enlisted military)
Permanent
207(a)(2)
All grades and
ranks (except
enlisted military)
2 years after Government
service terminates
207(b)
1 year after Government
service terminates
207(c)
All grades and
ranks (except
enlisted military)
“Senior”
207(d)
“Very Senior”
2 years after service in a “very
senior” position terminates
207(f)
“Senior”
“Very Senior”
1 year after service in a
“senior” or “very senior”
position terminates
1 year after service in a
“senior” position terminates
Brief Summary
No former employee may knowingly make, with the intent to influence, any communication to or
appearance before an employee of the U.S. on behalf of any other person (except the U.S.) in
connection with a particular matter involving a specific party or parties, in which he participated
personally and substantially as an employee, and in which the U.S. is a party or has a direct and
substantial interest.
No former employee may knowingly make, with the intent to influence, any communication to or
appearance before an employee of the U.S. on behalf of any other person (except the U.S.) in
connection with a particular matter involving a specific party or parties, in which the U.S. is a party or
has a direct and substantial interest, and which such person knows or reasonably should know was
actually pending under his official responsibility within the one-year period prior to the termination of
his employment with the U.S.
No former employee may knowingly represent, aid, or advise on the basis of covered information, any
other person (except the U.S.) concerning any ongoing trade or treaty negotiation in which, during his
last year of Government service, he participated personally and substantially as an employee.
No former “senior” employee may knowingly make, with the intent to influence, any communication to
or appearance before an employee of a department or agency in which he served in any capacity during
the one-year period prior to termination from “senior” service, if that communication or appearance is
made on behalf of any other person (except the U.S.), in connection with any matter concerning which
he seeks official action by that employee.
No former “very senior” employee may knowingly make, with the intent to influence, any
communication to or appearance before any individual appointed to an Executive Schedule position or
before any employee of a department or agency in which he served as a “very senior” employee during
the two-year period prior to termination from Government service, if that communication or
appearance is made on behalf of any other person (except the U.S.), in connection with any matter
concerning which he seeks official action by that individual or employee.
No former “senior” employee or former “very senior” employee may knowingly, with the intent to
influence a decision of an employee of a department or agency of the U.S. in carrying out his official
duties, represent a foreign entity before any department or agency of the U.S. or aid or advise a foreign
entity.
* This quick reference guide is only a summary. When giving advice, always consult the complete set of laws, rules, and opinions that apply to the
particular situation.
January, 2010
POST-EMPLOYMENT RESTRICTIONS
Determining how the statutory restrictions and bar requirements apply can be complex, and we encourage
current and former employees to consult with the component deputy designated agency ethics officials
(DDAEOs) or the Departmental Ethics Office about the statutory requirements. Because of the
significant consequences involved, all persons are advised to seek guidance from the component DDAEO
before engaging in communications that may run afoul of the prohibitions. The names and contact
information for DDAEOs and the Departmental Ethics Office are available on the Department’s website:
http://www.usdoj.gov/jmd/ethics
While this chart interprets the standards of conduct and criminal conflict of interest statutes applicable to
all former Department of Justice employees, former employees who are attorneys also must comply with
the applicable rules of professional conduct.1 Component Professional Responsibility Officers and the
Department’s Professional Responsibility Advisory Office are available for guidance to attorneys on the
bar requirements.
SUBJECT OF
RESTRICTION
MATTERS AFFECTING AN
ORGANIZATION W ITH W HICH
AN EMPLOYEE IS
NEGOTIATING FUTURE
EMPLOYMENT
STATUTORY
REQUIREMENTS
BAR
REQUIREMENTS
18 USC § 208 prohibits employees from
participating personally and
substantially in a particular matter in
which an organization they are
negotiating with, or have an
arrangement with, for future
employment has a financial interest.
Model Rule 1.11(d)(2)(ii)
prohibits a government lawyer
from negotiating for private
employment with a party or an
attorney or law firm representing
a party in a matter in which the
government lawyer is
participating personally and
substantially. Model Rule
1.7(a)(2) may prohibit a lawyer
from negotiating for private
employment with a witness, or a
lawyer or a law firm representing
a witness, in a case in which the
lawyer is representing the
government unless the
appropriate official consents in
writing. There are also
confidentiality requirements. See
“CONFIDENTIALITY” section
below.
1
Although this chart refers to the Model Rules, each attorney should analyze the issue under the applicable state
rules of professional conduct.
1
SUBJECT OF
RESTRICTION
MATTERS IN W HICH FORMER
EM PLOYEE HAD PERSONAL &
SUBSTANTIAL PARTICIPATION
IMPUTED DISQUALIFICATION
STATUTORY
REQUIREMENTS
BAR
REQUIREMENTS
18 USC § 207(a)(1) bars all former
employees from knowingly making,
with the intent to influence, any
communication to, or appearance
before, a federal agency or any court on
behalf of anyone other than the US on a
particular matter involving specific
parties in which they participated
personally and substantially while in
government.
Behind-the-scenes assistance and
counseling are permitted.
Model Rule 1.11 prohibits
essentially the same conduct as
section 207(a)(1) except all
aspects of legal representation
and counseling are prohibited,
including behind-the-scenes
representation or assistance. The
government may consent to the
representation of the new client
in writing. There are also
confidentiality requirements. See
“CONFIDENTIALITY” section
below.
This prohibition never expires.
This prohibition never expires.
There is no statute that imputes
disqualification to a former employee’s
new employer.
Under Model Rule 1.11(b),
disqualification is imputed to the
former employee’s law firm.
Imputed disqualification can be
eliminated by 1) timely screening
the disqualified attorney, and 2)
giving notice to the Government
of the steps taken to screen.
This prohibition never expires.
MATTERS UNDER FORMER
EMPLOYEE’S OFFICIAL
RESPONSIBILITY
18 USC § 207(a)(2) bars all former
employees from knowingly making,
with intent to influence, any
communication to, or appearance
before, a federal agency or any court on
a particular matter involving specific
parties they know or should know was
pending under their official
responsibility during the last year of
government service.
This prohibition is effective for two
years.
Model Rule 1.11(a) prohibits a
former government lawyer from
using confidential government
information in representing a new
client and prohibits the lawyer
from representing a new client in
connection with a matter in
which he participated personally
and substantially while a
government lawyer unless the
government consents in writing.
The lawyer’s new firm may not
undertake the representation
unless the former government
attorney is screened and written
notice of the screening is
provided promptly to the
government. There are also
confidentiality requirements. See
“CONFIDENTIALITY” section
below.
This prohibition never expires.
2
SUBJECT OF
RESTRICTION
TREATIES & TRADE
NEGOTIATIONS UNDER THE
OM NIBUS TRADE &
COMPETITIVENESS ACT OF
1988 IN W HICH THE FORMER
EMPLOYEE PARTICIPATED
STATUTORY
REQUIREMENTS
18 USC § 207(b) bars all former
employees from knowingly
representing, aiding, or advising on the
basis of certain confidential information
any person, other than the US, on
certain ongoing trade or treaty
negotiations in which they participated
personally and substantially during the
last year of government service.
This prohibition is effective for one
year.
BAR
REQUIREMENTS
Model Rule 1.11(c) prohibits a
former government lawyer from
using confidential, nonpublic
information about a person
acquired while he or she was a
government lawyer to assist in
the representation of a new client
whose interests are adverse to the
interest of the person about
whom the confidential
information relates if the
information could be used to the
detriment of the person. The
former government attorney’s
new law firm may only undertake
representation of a client in the
matter if the former government
attorney is screened.
This prohibition never expires.
SHARING FEES FROM
ANOTHER’S REPRESENTATION
18 USC § 203 bars all former
employees from sharing in fees for
representational services rendered by
another at the time of their government
employment on matters in which the US
is a party or has a direct and substantial
interest.
W henever a former government
attorney is screened from
working on a matter under Model
Rule 1.11(b), if his law firm
undertakes representation in the
matter, the former government
attorney may not receive any
portion of the fees earned by the
firm in the matter.
This prohibition never expires.
3
SUBJECT OF
RESTRICTION
STATUTORY
REQUIREMENTS
CONTACT W ITH FORMER
AGENCY
18 USC § 207(c) bars senior employees
from knowingly making, with intent to
influence, any communication to or
appearance before all or part of their
former agency on behalf of another
person on a matter on which they seek
official action. Senior employees
include all Executive Level officials,
and SES, SL and ST officials whose pay
is or exceeds $155,441 as of January
2010. (The minimum salary trigger
increases in January each year.)GS-15
employees’ rate of basic pay is below
the threshold for this additional
restriction.
Designated separate components are:
Antitrust Division, ATF, BOP, Civil
Division, Civil Rights Division,
Community Relations Service,
Criminal Division, DEA,
Environment and Natural Resources
Division, EOUSA, and each
USAO*, EOUST, and each UST
office*, FBI, FCSC, special
prosecutors appointed by the AG,
OJP, OVW **, OPA, Tax Division,
USMS, and USPC.
1) Executive Level employees are
barred from the whole Department.
2) SES level and other senior level
employees who worked in a designated
separate component are barred from
appearing before their own component.
In addition, an employee may not
appear or communicate with an
otherwise permissible component if his
communications are shared, with
attribution, with members of his former
office. All circumstances are
considered in assessing whether there is
an inference of intent for attribution
when communications are made with a
permissible component. (E.g., former
Criminal Division employee cannot
contact DEA if circumstances support
inference of intent that his
communications with DEA will be
shared, with attribution, with the
Criminal Division.)
3) Those employees not from a separate
component are barred from parts of the
Department not designated separate,
including their own components. In
addition, an employee may not appear
or communicate with an otherwise
permissible component if his
communications are shared, with
attribution, with members of an office
not designated separate. All
circumstances are considered in
*But not from their Executive Office
**But not from OJP
4
BAR
REQUIREMENTS
There is no parallel bar rule, and
no imputation to the law firm.
SUBJECT OF
RESTRICTION
STATUTORY
REQUIREMENTS
BAR
REQUIREMENTS
assessing whether there is an inference
of intent for attribution when
communications are made with a
permissible component. (E.g., former
ODAG employee cannot contact Civil
Division if circumstances support
inference of intent that his
communications with Civil will be
shared, with attribution, with the
Associate AG’s office.)
This prohibition is effective for one
year.
CONTACT W ITH EXECUTIVE
LEVEL OFFICIALS
18 USC § 207(d) further bars a former
cabinet-level official from making, with
the intent to influence, a communication
to or appearance before any Executive
Level official in the Executive Branch
and anyone in the official’s former
Department or agency.
This prohibition is effective for two
years.
There is no parallel bar rule.
REPRESENTATION OF A
FOREIGN ENTITY AS DEFINED
IN THE FOREIGN AGENTS
REGISTRATION ACT
18 USC § 207(f) bars all former senior
employees from knowingly, with intent
to influence, representing a foreign
entity before an agency of the US or
aiding or advising a foreign entity.
This prohibition is effective for one
year.
There is no parallel bar rule.
CONFIDENTIALITY
There is no parallel statutory
requirement, but former employees who
had access to national security
information have special responsibilities
of confidentiality. (See also, 28 CFR §
16.21 regarding disclosure of
Department information in Federal and
State proceedings.)
Model Rules 1.6, 1.9, and 1.11(a)
prohibit a lawyer from using or
disclosing the confidences and
secrets of clients unless the client
consents. Model Rule 1.11(c)
prohibits a former government
lawyer from using confidential
information about a person
acquired when the lawyer worked
for the government in a matter on
behalf of a new client if the new
client’s interests are adverse to
the person and the information
could be used to the detriment of
the person.
This prohibition never expires.
5
SUBJECT OF
RESTRICTION
STATUTORY
REQUIREMENTS
BAR
REQUIREMENTS
PROCUREMENT INTEGRITY RESTRICTIONS (41 USC § 423)
ACTIONS REQUIRED OF AGENCY OFFICIALS
W HEN CONTACTED BY OFFERORS REGARDING
NON-FEDERAL EMPLOYMENT
An agency official who is participating personally and
substantially 1 in a Federal agency procurement for a
contract in excess of $100,000 must report any contact
with a person who is a bidder or offeror in that
procurement if the contact is in regard to non-federal
employment. She must report the contact in writing to
her supervisor and her agency ethics official. She may
reject the offer or disqualify herself in writing to the
Head of the Contracting Activity. She may be authorized
to resume work if the offeror is no longer a bidder or all
discussions have ended without an agreement for
employment. 48 CFR 3.104-3(c)
ACCEPTING COM PENSATION FROM A
CONTRACTOR AFTER SERVING IN CERTAIN
POSITIONS OR MAKING CERTAIN DECISIONS ON
A PROCUREMENT OR CONTRACT
A former official is prohibited from accepting
compensation from a contractor within a period of one
year after such official served, at the time of selection of
the contractor or the award of a contract to that
contractor, as the procuring contracting officer, the
source selection authority, a member of the source
selection evaluation board, or the chief of a financial or
technical evaluation team in a procurement for a contract
in excess of $10 million. The above restriction also
applies to a former official who served as program
manager, deputy program manager, or administrative
contracting officer for a contract in excess of $10
million. It applies to a former official who made a
decision to award a contract, subcontract, modification,
task order, or delivery order; to establish overhead or
other rates for a contract; to approve issuance of a
contract payment or payments; or to pay or settle a claim
in excess of $10 million. 48 CFR 3.104-3(d)
PROHIBITION ON DISCLOSING PROCUREMENT
INFORMATION
A present or former official, or someone acting on behalf
of or advising the government with respect to a Federal
procurement, who has or had access to contractor bid or
proposal information or source selection information is
prohibited from disclosing that information before the
award of the contract to which the information relates.
40 CFR 3.104-4(a)
1. Participating personally and substantially in a procurement means active and significant involvement in any of
these activities: 1) drafting, reviewing or approving the specification or statement of work; 2) preparing or
developing the solicitation; 3) evaluating bids or proposals or selecting a source; 4) negotiating price or terms and
6
conditions of the contract; or 5) reviewing and approving the award of the contract.
7
pass it on
Summer 2010
Vol. 19, No. 4
The newsletter of the
American Bar Association’s
Government and Public
Sector Lawyers Division
Avoiding the Revolving Door:
Ethical Issues for Government Lawyers
Transitioning to the Private Sector
by Ryan Cleary
I
n this economy, the private sector
may not be particularly alluring,
but when things turn around you may
consider transitioning to private practice. This move will require more than
updating your LinkedIn profile and
ordering new business cards. Public
lawyers transitioning to the private
sector face ethical issues as soon as
they begin their job search.
Due to the variety of internal
departmental and state/local rules, this
article focuses on the federal regulatory scheme and the ABA’s Model
Rules of Professional Conduct, whose
format has been adopted by all states
and the District of Columbia, except
California. You should also consult
state bar rules, agency rules or any
other laws applicable to your particular situation.
Ethical concerns arise during two
phases of the transition: 1) the job
search and negotiation while still
employed in the public sector, and 2)
after a lawyer’s employment in the
private sector commences.
The Job Search
Restrictions Under 18 U.S.C. § 208
The most pressing ethical issues that arise during the job search phase are avoiding and
preventing conflicts of interest. Section 18 U.S.C. § 208(a) requires that an employee
disqualify him/herself from participation in “any particular matter” that will have a
direct and predictable effect on the financial interests of a person “with whom he is
negotiating or has any arrangement concerning prospective employment.” The regulations which discuss 18 U.S.C. § 208(a) and govern “the Seeking of Other Employment”
are set forth in 5 C.F.R. Part 2635, Subpart F (sections 2635.601-.606).
Four key concepts are derived from the regulations. First, the possibility of disqualification arises the moment that an employee seeks outside employment or makes
arrangements concerning future employment, “if the employee’s official duties would
affect the financial interest of the prospective employer or the person with whom the
Guess the Social Media Icons Winner!
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Published in Pass It On, Volume 19, Number 4, Summer 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
2 Pass It On n Summer 2010 or if the potential employee had sent
an “unsolicited résumé” or “employment proposal” to an employer and
the employer does not contact the
potential employee within two months
to discuss the prospect of employment. See §§ 2635.603(b)(2)(i)&(ii).
In U.S v. Walters, 2009 WL 1940726
(S.D. Miss 2009), the U.S. Attorneys
Office brought an indictment against
Walters, a former employee of the U.S.
Department of Agriculture, under 18
U.S.C. §§ 207 and 208, asserting that
he gave advice in a particular matter
by trying to obtain loans for a medical center. At the same time, Walters
had prospective employment with a
company that represented the medical
center. Walters argued that because
the medical center did not file its
application for the loan until after he
resigned his employment, he was not
involved in any “particular matter.”
The court rejected this argument,
pointing out the extent of Walter’s
recommendations and advice, and
the fact that Walters “switched sides”
and contacted the agency about the
loan application on behalf of his new
employer shortly after leaving government service.
ABA Model Rules
The ABA Model Rules of Professional
Conduct create a stricter restraint.
Model Rule 1.11(d)(ii) prevents a lawyer serving as a government employee
or officer from “negotiat[ing] for private employment with any person who
is involved as a party or as lawyer for
a party in a matter in which the lawyer
is participating personally and substantially.” The Model Rule does not
require that there be financial effects
on the prospective employer and does
not provide for a waiver process.
Employment in the Private Sector
Editor
Laura Beliveau
pass it on
employee has an arrangement concerning prospective employment.” See
5 CFR §§ 2635.602, 604 and 606.
Second, section 2635.604 requires
that unless the employee has obtained
a waiver under section 2635.605, she
will be disqualified from participating
in any particular matter that, to her
knowledge, has a “direct and predictable effect on the financial interests
of a prospective employer.” Section
2635.606 creates a similar disqualification based on arrangements concerning prospective or imminent employment. If an employee becomes aware
of the possibility that she may be
disqualified, she must notify her immediate superior forthwith, at which
point proper oral or written notification may be given to the employee’s
coworkers to ensure the employee is
not involved in any matter for which
she is disqualified. Written notification
is not required, but is recommended
to protect the ethical interests of the
employee and to create a record of
matters from which the employee
is disqualified. Also, the employee
should consider filing a “Disqualification Statement.” See sections
2635.604(b) & (c).
Third, an employee seeking outside employment may seek a waiver
of disqualification, through the
appropriate agency or department
official, issued under the authority of
18 U.S.C. § 208(b)(1) or (b)(3). See
section 2635.605. Section 2635.502(d)
sets forth the standards under which
the agency designee may grant the
waiver to the employee. These standards include the full disclosure of
the circumstances surrounding the
particular matter and the employment
sought. If a waiver is granted, it may
remove the potential appearance of
a conflict of interest. That being said,
the waiver process is a demanding
and time consuming venture, so an
employee should only seek a waiver
for compelling reasons.
Finally, the job seeking process
is not over until either the potential
employee or employer rejects the
possibility of employment and ceases
discussions of potential employment,
Staff Editors
Katherine Mikkelson
Susan Kidd
Comments, letters to the editor
and other suggestions
Editor, Government and
Public Sector Lawyers Division
American Bar Association
740 15th Street, NW
Washington, DC 20005
202-662-1020
E-mail
[email protected]
Visit our homepage
www.governmentlawyer.org
Reprint requests must be made in writing
to [email protected].
Copyright 2010
American Bar Association
Editorial Statement
Pass It On provides a forum for
the discussion of issues of special
concern to government and public
sector lawyers. Pass It On is edited
by members of the Government and
Public Sector Lawyers Division.
Publishing and editorial decisions are
based on the editors’ judgment of the
quality of the writing, the timeliness of
the article, and the potential interest
to the readers of Pass It On. The views
in Pass It On are those of the authors
and may not reflect the official policy
of the American Bar Association or
the Government and Public Sector
Lawyers Division. No endorsement
of the views should be inferred
unless specifically identified as the
official policy of the American Bar
Association or the Government and
Public Sector Lawyers Division.
Ethical issues remain even after the
lawyer takes a new position in the
private sector. Public sector lawyers
owe certain ethical duties to their
former agency or department that
outlast their employment. In the federal system, 18 U.S.C. § 207 attaches
criminal and civil penalties (through
www.governmentlawyer.org
Published in Pass It On, Volume 19, Number 4, Summer 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
§216(c)) for government officers and
employees who violate its conflict
of interest restrictions. Additionally,
public sector lawyers can face disciplinary actions from their state bars if
their new private employment violates
a duty owed to their former government employer.
Restrictions Under 18 U.S.C. § 207
The federal conflict of interest statute
is a complex law, but in a nutshell,
Section 207 creates three different categories of disqualification: a
permanent bar, a two-year bar, and a
one-year bar.
1. Permanent Bar
Section 207(a)(1) permanently bans
former government employees from
“knowingly mak[ing], with the intent
to influence, any communication to
or appearance before any officer or
employee of any department, agency,
court, or court-martial” on behalf of
any person in connection with a “particular matter” in which A) “the United
States … is a party or has a direct and
substantial interest, B) the former
employee participated personally and
substantially while an employee, and
C) that involved a specific party or
parties at the time of such participation.” Key concepts in this section are
“particular matter” and “participated
personally and substantially.”
“Particular matter” covers investigations, applications, requests for
rulings or determinations, rulemaking, contracts, controversies, claims,
charges, accusations, arrests, or judicial or other proceedings. 18 U.S.C. §
207. However Section 207 only prohibits matters that affect the legal rights
of the parties or an isolatable transaction or related set of transactions
between identified parties. 5 CFR §
2641.201(h). For example, if a HUD
employee approves a city’s application
for federal assistance for a renewal
project, she may not represent that
city in relation to that application
after she leaves government service.
The application is a particular matter
in which she participated personally
and substantially as a government
www.governmentlawyer.org
Message to the Members
A
s chair, one of the Division projects that I am
most excited to see expand is the development of our CLE teleconferences. With the current
climate of shrinking budgets and curtailed government travel, “distance learning” is an excellent and
cost-effective way to obtain those ever-needed CLE
credits. If you’ve never attended a teleconference, I
would urge you to try it at least once -- technology
has made the delivery of such programs practical
and straightforward. In June, we produced another
teleconference titled E-discovery, Public Records
Gwendolyn D. Hodge
and Metadata and we received exceptional reviews
Chair, 2009-2010
from our attendees.
Perhaps you are lucky enough to have some travel dollars to spend
before the end of your fiscal year, just in time for the ABA Annual Meeting
in San Francisco. I have been to the lovely City by the Bay many times now,
and it’s always a delight. A year’s worth of CLE credits are available and I
urge you to check out the Presidential Showcase programs that are always
cutting edge and interesting. See the schedule on p. 6 for Division events,
registration information and the variety of cosponsored programs which are
just a fraction of the many events offered.
As my year as chair winds to a close, I would like to thank my fellow
council members and staff who made my job much easier with their ideas,
enthusiasm and hard work. It’s been a wonderfully rewarding year for me
and I am grateful to each member of this dynamic Division for supporting
your home within the ABA.
employee. See 5 C.F.R. § 2641.201(h)
for other examples.
Personal and substantial participation means taking action directly,
individually or with others; or through
direct and active supervision of another
person. 5 CFR § 2641.201(i)(1), (2)(i)&(ii).
An employee participates substantially
if her involvement is of significance to
the matter. 5 CFR § 2641.201(I)(3). If,
for example, an agency office head’s
approval is required on applications
for assistance to certain nonprofits and
she intentionally takes no action on an
application because she believes it will
raise difficult policy questions for her
agency, and as a result the application
is deferred indefinitely, she has participated personally and substantially. See 5
CFR § 2641.201(i) for other examples.
The scope of this ban is particularly
broad. Departing public sector lawyers
should take the precaution of keeping
a record of all open and continuing
particular matters, involving a specific
party or parties, in which he or she
participated personally and substantially.
2. Two-Year Bar
Under Section 207(a)(2), former government employees face a two-year
restriction regarding particular matters that were an employee’s “official
responsibility” even if the employee
did not participate personally or substantially. Section 207(a)(2) prohibits
the former employee from knowingly
making, with the intent to influence,
communication to or appearance
before the U.S. in connection with a
particular matter for two years after
the termination of employment.
While Section (a)(1) addresses
personal and substantial participation
in particular matters, the two year
ban applies to particular matters that
one knew or reasonably should have
known were actually pending and
Pass It On n Summer 2010 3
Published in Pass It On, Volume 19, Number 4, Summer 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
fell under one’s official responsibility
within one year before the termination of employment. Section 207 (a)
(2)(B). The key concept in subsection
2 is “official responsibility.” “Official
responsibility” is “the direct administrative or operating authority, whether
intermediate or final, and either
exercisable alone or with others, and
either personally or through subordinates, to approve, disapprove, or
otherwise direct Government action.”
18 USC § 202(b). To illustrate, if an
assistant secretary of a federal agency’s job description includes responsibility for a certain class of grants, and
those grants are handled by an office
under her supervision but without her
involvement, she has official responsibility for those grants.
Matters covered by this section are
tracked from one year prior to termination of responsibility. An employee’s
recusal or disqualification from a matter does not operate to remove it from
his zone of official responsibility. See
5 CFR § 2641.202(j)(5) &(6). Federal
government lawyers should keep a
record of any matters that might fall
under their “official responsibility”
when they begin to consider a move to
the private sector.
3. One-Year Bar
Certain senior personnel face additional post employment restrictions.
Section 207(c)(1) prohibits designated
senior employees from knowingly
making, with intent to influence, any
communication to or appearance
before any officer or employee of the
departing senior employee’s department or agency in connection with
any matter on which another person
is seeking official action by such
department or agency within one year
after termination of employment. This
restriction applies to all matters of the
department or agency, not just those
in which the employee participated
personally and substantially or those
which were within the employee’s
official responsibility. Section 5 CFR §
2641.204 outlines the regulations relating to this “cooling off” period and
Section 5 CFR § 730 requires agencies
4 Pass It On n Summer 2010 and departments to notify employees
that they are subject to restrictions
under 207(c)(1).
Section 207 creates other restrictions and contains a number of
exceptions. Federal lawyers who are
considering departing for the private
sector should read it in its entirety to
determine which additional restrictions or potential exceptions apply.
ABA Model Rules
Model Rule 1.11(a), similar to the
federal statute, prohibits a former
government lawyer from representing
a client in connection with a matter in which the lawyer participated
personally and substantially while
employed by the government, unless
the appropriate government agency
gives its informed consent, confirmed
in writing. Additionally, lawyers in
the disqualified lawyer’s firm may
not represent the client unless the
disqualified lawyer is screened in a
timely manner and receives no share
of the fee, and the appropriate government agency or department is given
prompt written notice. See Model Rule
1.11(b). Model Rule 11(c) prohibits a
former government lawyer from using
“confidential government information”
about a person in the representation
of a private client whose interests
are adverse to that person in a matter in which the information could be
used to the material disadvantage of
that person. If a disqualified lawyer is
appropriately screened, other lawyers
in that firm may participate in such
matters. See Rule 1.11(b).
In U.S. v. Phillip Morris Inc., 312
F. Supp.2d 27 (2004), the government
relied upon Rule 1.11(a) when it sought
to disqualify Koslowe, a partner with
Shearman & Sterling, from representing the defendants. Koslowe was a
former DOJ employee who helped
draft the federal regulations related to
youth tobacco use. By his own admission, Koslowe participated personally
and substantially in matters related to
the current litigation when he worked
382 hours on FDA litigation that challenged federal tobacco rulemaking,
and he had sustained access to many
confidential and privileged government
documents. The Court noted that this
was precisely the scenario addressed
by Rule 1.11 and granted the government’s motion to disqualify Koslowe.
Koslowe was not screened in compliance with Rule 1.11(c) and (d), and no
notices were sent to DOJ or any parties
in the case. Because Koslowe’s brief
did not address the imputation issue,
the Court also granted the government’s motion to disqualify Shearman
& Sterling.
Conclusion
Transitioning to the private sector
presents many ethical issues, particularly when a lawyer wants to practice
in the same subject area or within the
region where potential clients may
have ties to his or her former government agency or department. Public
lawyers should acquire a thorough
understanding of the applicable laws
and ethics rules before they send out
their first résumé.
Ryan Cleary is member of the division
and former Law Student Division
liaison to the GPSLD council. He is
a contract attorney in Washington
D.C. and can be reached at ryan@
clearygroup.net.
Resources
Additional information on the
ethical issues involved in
transitioning from the public to
private sector can be found at:
Office of Government Ethics
www.usoge.gov; the ABA Center
for Professional Responsibility
www.abanet.org/cpr/; and the
Government and Public Sector
Lawyers Division www.
governmentlawyer.org.
www.governmentlawyer.org
Published in Pass It On, Volume 19, Number 4, Summer 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
A non-partisan consortium of public and private universities and other research organizations, the
White House Transition Project focuses on smoothing the transition of power in the American
Presidency. Its “Reports” series applies scholarship to specific problems identified by those who
have borne the responsibilities for governing. Its “Briefing” series uses extensive interviews with
practitioners from the past seven White Houses to produce institutional memories for most of the
primary offices in the West Wing operation of the presidency.
Find White House Transition
WhiteHouseTransitionProject.org.
Project
Reports
© The White House Transition Project, 2008
ii
and
Briefing
Books
on
its
website:
REPORT #2009-29
THE WHITE HOUSE
COUNSEL’S OFFICE
MaryAnne Borrelli, Connecticut College
Karen Hult, Virginia Polytechnic Institute
Nancy Kassop, State University of New York – New Paltz
EXECUTIVE SUMMARY
Given that the United States of America is governed under the rule of law, and that the
President is its elected Chief Magistrate, the role of the White House Counsel’s Office is to maintain
the presidency in lawful tension with all other elements, in and out of government. As the burdens of
the nation’s highest office grow, so do the responsibilities of what is often called “the president’s
lawyer” but is more accurately described as the “presidency’s lawyer.” The myriad tasks of this
complex office include: monitor ethics matters; coordinate the president’s message and agenda within the
executive branch units; negotiate on the president’s behalf with Congress and other vectors; recommend
actions to the president; and translate or interpret the law in its broadest context throughout the
Executive branch. Often overlooked is its separate role as protector of the Office, in everything from
scrutinizing the security of its workers to the legal boundaries all must maintain. So encompassing are
the sweeping burdens of this office that no adequate job description exists. Suffice it that the White
House Counsel’s Office is a mirror held up to the highest office in the land. As such, it is forever the
stuff of tomorrow’s front page headlines.
LESSONS LEARNED
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
Name the Counsel as early as possible.
Prepare to enter an empty office
Meet with the outgoing Counsel
Expect a steep learning curve, the unpredictability of events, and deadlines dictated by the
media
Know where to go for information.
Maintain good relations with the Office of Legal Counsel in the Department of Justice
Divide the Counsel’s Office when scandals arise.
Monitor the president closely in the last year of the term
Be aware of sharp public criticism of the White House Counsel’s Office
Understand the impact of the loss of government attorney-client privilege
Note the continuing significance of issues of executive privilege and other presidential
prerogatives
Recognize the difficult political environment for the judicial appointment process
REPORT #2009-29
THE WHITE HOUSE
COUNSEL’S OFFICE
MaryAnne Borrelli, Connecticut College
Karen Hult, Virginia Polytechnic Institute
Nancy Kassop, State University of New York – New Paltz
INTRODUCTION
The White House Counsel’s Office is at the hub of all presidential activity. Its mandate is to be
watchful for and attentive to legal issues that may arise in policy and political contexts in which the
president plays a role. To fulfill this responsibility, it monitors and coordinates the presidency’s
interactions with other players in and out of government. Often called “the president’s lawyer,” the
Counsel’s Office serves, more accurately, as the “presidency’s lawyer,” with tasks that extend well
beyond exclusively legal ones. These have developed over time, depending on the needs of different
presidents, on the relationship between a president and a Counsel, and on contemporary political
conditions. The Office carries out many routine tasks, such as vetting all presidential appointments
and advising on the application of ethics regulations to White House staff and executive branch
officials, but it also operates as a “command center” when crises or scandals erupt. Thus, the more
sharply polarized political atmosphere in recent years has led to greater responsibility and demands,
as well as heightened political pressure and visibility, on the traditionally low-profile Counsel’s Office.
The high-stakes quality of its work has led to a common sentiment among Counsels and their staff
that there is “zero tolerance” for error in this office.
In sum, the Counsel’s Office might be characterized as a monitor, a coordinator, a negotiator, a
recommender, and a translator: it monitors ethics matters, it coordinates the president’s message and
agenda with other executive branch units, it negotiates with a whole host of actors on the president’s
behalf (not the least of which is Congress), it recommends myriad actions to the president, and it
translates or interprets the law (whether it is the Constitution, federal rules and regulations, treaties or
legislation) for all executive branch officials. Past Counsels have lamented that there is no job
description for this office, while the opening quote from Peter Wallison makes clear that even if
there was, it would be all-consuming and all-inclusive of everything that goes in and out of the
president’s office.
1
2
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
OVERVIEW
The White House Counsel’s Office sits at the intersection of law, politics, and policy. It is charged
with reconciling these three, without sacrificing too much of any one.
* The White House Counsel’s Office advises on the exercise of presidential powers and
actions; defends presidential prerogatives; oversees executive and judicial
appointments and nominations; educates and monitors White House staff
adherence to federal ethics and records management law; and handles White House,
departmental, and agency contacts with the Department of Justice.
* The work of the White House Counsel is as strategic as it is substantive. By participating
in decision-making processes, the White House Counsel anticipates problems or
provides more effective solutions.
The most important contribution of the White House Counsel may well be telling the President
“No.” To do this effectively, the Counsel must understand the limits of the advocacy provided by
the office.
* The White House Counsel protects presidential powers and constitutional prerogatives,
providing legal counsel to the office of the presidency, not to the individual
president.
* As the presidential term advances, the interventions practiced by the White House
Counsel will alter and may focus more on preventing than facilitating White House
actions.
* The loss of government attorney-client privilege has significantly altered practices and
procedures within the Counsel’s office, making it even more critical that incoming
Counsels consult with their predecessors.
* The Office of Legal Counsel in the Department of Justice is a critical and supportive
resource for the White House Counsel.
The White House Counsel’s Office must be prepared for close scrutiny and constant criticism, as it
protects presidential prerogatives and contributes to presidential policy-making.
* The breadth and number of the Counsel’s responsibilities ensure that the forces at work
on the White House Office – the quick start, the lack of records and institutional
memory, the need to make decisions with limited information, the tight deadlines
and goal displacement – will be felt with even greater force in the Counsel’s Office.
* Congressional and media oversight will be continuous and critical, because the Counsel’s
Office has responsibilities pertaining to decisions and processes that have become
intensely polarized and partisan.
* The Counsel must be prepared for scandal, both procedurally and substantively, or these
events will overwhelm (and potentially sideline) the office.
ROLES AND RESPONSIBILITIES, THE PRESIDENTIAL TERM, AND
SAYING “NO.”
In simple terms, the Counsel’s Office performs five basic categories of functions: (1) advising
on the exercise of presidential powers and defending the president’s constitutional prerogatives; (2)
overseeing presidential nominations and appointments to the executive and judicial branches; (3)
advising on presidential actions relating to the legislative process; (4) educating White House staffers
about ethics rules and records management and monitoring adherence; and (5) handling department,
agency and White House staff contacts with the Department of Justice (see Functions section). In
undertaking these responsibilities, the Counsel’s Office interacts regularly with, among others, the
president, the Chief of Staff, the Vice President’s office, the White House Office of Personnel, the
The White House Counsel’s Office
3
Press Secretary, the White House Office of Legislative Affairs, the Attorney General, the Office of
Management and Budget (on the legislative process), the General Counsels of the departments and
agencies, and most especially, the Office of Legal Counsel in the Department of Justice (see
Relationships section). In addition to the Counsel, the Office usually consists of one or two Deputy
Counsels, a varying number of Associate and Assistant Counsels, a Special Counsel when scandals
arise, a Senior Counsel in some administrations, and support staff. Tasks are apportioned to these
positions in various ways, depending on the Counsel’s choices, though most Counsels expect all
Office members to share the ongoing vetting for presidential appointments (see Organization and
Operations section).
Certain responsibilities within the Office are central at the very start of an administration (e.g.,
vetting for initial nominations and shepherding the appointment process through the Senate), while
others have a cyclical nature to them (e.g., the annual budget, the State of the Union message), and
still others follow an electoral cycle (e.g., determining whether presidential travel and other activities
are partisan/electoral/campaign or governmental ones) (see Organization and Operations). There is,
of course, the always unpredictable (but almost inevitable) flurry of scandals and crises, in which all
eyes turn to the Counsel’s Office for guidance and answers. Watergate, Iran-contra, Whitewater, the
Clinton impeachment, the FBI files and White House Travel Office matters and the response to
congressional investigations after the 2006 Democratic take-over of Congress all were managed from
the Counsel’s Office, in settings that usually separated scandal management from the routine work of
the Office, so as to permit ongoing operations to continue with minimal distraction. Among the
more regular tasks that occur throughout an administration are such jobs as directing the judicial
nomination process, reviewing legislative proposals (the president’s, those from departments and
agencies, and bills Congress has passed that need the Counsel’s recommendation for presidential
signature or veto), editing and clearing presidential statements and speeches, writing executive orders,
and determining the application of executive privilege (see both Relationships and Organization and
Operations sections).
Perhaps, the most challenging task for the Counsel is being the one who has the duty to tell the
president “no,” especially when it comes to defending the constitutional powers and prerogatives of
the presidency. Lloyd Cutler, Counsel for both Presidents Carter and Clinton, noted that, in return
for being “on the cutting edge of problems,” the Counsel needs to be someone who has his own
established reputation…someone who is willing to stand up t o the President, to say, “No, Mr.
President, you shouldn’t do that for these reasons.” There is a great tendency among all presidential
staffs to be very sycophantic, very sycophantic. It’s almost impossible to avoid, “This man is the
President of the United States and you want to stay in his good graces,” even when he is about to do
something dumb; you don’t tell him that. You find some way to put it in a very diplomatic manner.
(Cutler interview, pp. 3-4)
LAW, POLITICS AND POLICY
A helpful way to understand the Counsel’s Office is to see it as sitting at the intersection of law,
politics and policy. Consequently, it confronts the difficult and delicate task of trying to reconcile all
three of these without sacrificing too much of any one. It is the distinctive challenge of the Counsel’s
Office to advise the president to take actions that are both legally sound and politically astute. A 1994
article in Legal Times warned of the pitfalls:
Because a sound legal decision can be a political disaster, the presidential counsel constantly
sacrifices legal ground for political advantage. (Bendavid, 1994, p. 13)
For example, A.B. Culvahouse recalled his experience upon arriving at the White House as counsel
and having to implement President Reagan’s earlier decision to turn over his personal diaries to
investigators during the Iran-contra scandal.
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
4
Ronald Reagan’s decision to turn over his diary - that sits at the core of the presidency.
…You’re setting up precedents and ceding a little power. But politically, President Reagan
wanted to get it behind him. (Bendavid, 1994, p. 13)
Nonetheless, Culvahouse added, the Counsel is “the last and in some cases the only protector of the
President’s constitutional privileges. Almost everyone else is willing to give those away in part inch by
inch and bit by bit in order to win the issue of the day, to achieve compromise on today’s thorny
issue. So a lot of what I did was stand in the way of that process...” (Culvahouse interview, p. 28)
Because of this blend of legal, political and policy elements, the most essential function a
Counsel can perform for a president is to act as an “early warning system” for potential legal trouble
spots before (and, ultimately, after) they erupt. For this role, a Counsel must keep his or her
“antennae” constantly attuned. Being at the right meetings at the right time and knowing which
people have information and/or the necessary technical knowledge and expertise in specific policy or
legal areas are the keys to insuring the best service in this part of the position. C. Boyden Gray,
Counsel for President Bush, commented: “As Culvahouse said -- I used to say that the meetings I
was invited to, I shouldn’t go to. …It’s the meetings I wasn’t invited to that I’d go to.” (Gray
interview, p. 26) Lloyd Cutler noted that
….the White House Counsel will learn by going to the staff meetings, et cetera, that
something is about to be done that has buried within it a legal issue which the people who
are advocating it either haven’t recognized or push under the rug. He says, “Wait a minute.
We’ve got to check this out,” and goes to the Office of Legal Counsel and alerts them and
gets their opinion. But for the existence of the White House Counsel, the Office of Legal
Counsel would never have learned about the problem until it was too late. (Cutler interview,
p. 4)
One other crucial part of the job where the legal overlaps with the policy and the political -- and
which can spell disaster for Counsels who disregard this -- is knowing when to go to the Office of
Legal Counsel for guidance on prevailing legal interpretations and opinions on the scope of
presidential authority. It is then up to the White House Counsel to sift through these legal opinions,
and to bring into play the operative policy and political considerations in order to offer the president
his or her best recommendation on a course of presidential action. Lloyd Cutler described how this
process works:
They [OLC staffers] are where the President has to go or the President’s counsel has to go to
get an opinion on whether something may properly be done or not. For example, if you wish
to invoke an executive privilege not to produce documents or something, the routine now is
you go to the Office of Legal Counsel and you get their opinion that there is a valid basis for
asserting executive privilege in this case. ...You’re able to say [to the judge who is going to
examine these documents] the Office of Legal Counsel says we have a valid basis historically
for asserting executive privilege here. (Cutler interview, p. 4)
C. Boyden Gray underscored the critical importance of OLC’s relationship to the Counsel’s Office:
They [OLC] were the memory…We paid attention to what they did. [Vincent] Foster never
conferred with them. When they [the Clinton Counsel’s Office] filed briefs on executive
privilege, they had the criminal division, the civil division and some other division signing on
the brief; OLC wasn’t on the brief… In some ways they [OLC] told us not to do things but
that was helpful. They said no to us… I can give you a million examples. They would have
said to Vince Foster, “Don’t go in and argue without thinking about it.” They would have
prevented the whole healthcare debacle [referring to the Clinton Counsel’s Office’s position
that Hillary Rodham Clinton was a government official for FACA purposes] …[T]he ripple
effect of that one decision is hard to exaggerate: it’s hard to calculate. (Gray interview, pp.
18-19)
In addition, Gray continued,
The White House Counsel’s Office
5
…OLC has this long institutional memory of how to deal with Congress in situations like
this [referring to the Clinton Counsel’s Office’s agreement to permit the president to give
grand jury testimony to Independent Counsel Ken Starr] and they would have said, “Hey,
have you thought about [this]?” (Gray interview, p. 20)
Thus, the Counsel’s Office is the channel through which most paper and people must pass on
the way to the president, and, equally, through which all outputs from the Oval Office must be
monitored and evaluated. The pace of the work is incessant, and the pressure to ensure against errors
of substance or judgment, unrelenting. The Office exists in a fishbowl, is subject to searing public
criticism when it makes the slightest misstep, and yet prompts intense loyalty among those who have
been privileged to serve in it.
JUSTIFICATION FOR THE CONTINUED EXISTENCE OF THE
COUNSEL’S OFFICE
If one dates the origins of the Counsel’s office back to Sam Rosenman in the Roosevelt
administration, it has existed in its present form for more than sixty years. It is an office that surfaces
to the public only in times of controversy. Some have questioned its very existence, especially in light
of its inherent tension between law and politics and the potential for an uneasy relationship with the
Department of Justice. Presidential scholar Bradley Patterson, Jr. explains one line of criticism about
the office, that its detractors think that it offers a way for presidents to ‘“shop around” for the legal
advice they prefer – resulting in inconsistencies in the administration’s judgments.’ (Patterson, 2008,
p. 66.)
In a conference at Duke University Law School in September 1999, a distinguished panel of
former White House Counsels and Attorneys General was asked by moderator Walter Dellinger to
consider whether the White House Counsel’s office should be abolished. Their answers were
illuminating, based on reflections from their own experiences as government lawyers from each party
who had served in recent administrations. Former Attorney General Benjamin Civiletti was the only
panel member who was opposed to maintaining the Counsel’s office, stating that “the White House
Counsel’s office is an abomination, structurally inefficient, lots of potential for conflict because of its
political nature. If the president has a trusted person who can give him confidential advice, keep that
person out of government.” (Notes on file with Kassop.)
The discussion began with questions about when and why a president needs a White House
Counsel, as contrasted with a president’s need for an attorney general. Lloyd Cutler remarked, “A
president needs two lawyers that he trusts implicitly: one as attorney general and one as White House
Counsel. The AG is busy running a huge department, travels a lot, often is out of town. The White
House Counsel is more like an inside general counsel of a major corporation that identifies legal
issues that are about to develop, and discusses them with the AG, in advance.” Later, he added, “The
Justice Department is so big, it needs a good White House Counsel. DOJ needs someone at the
White House. DOJ couldn’t do without us.” (Notes on file with Kassop.)
Another key topic addressed by this panel was whether it was proper for the Attorney
General to inform the White House Counsel when a senior White House official or a major
contributor to the president’s campaign was under criminal investigation. All panel members agreed
that it was necessary for the president to know when these circumstances arose, and that the
Attorney General or Deputy Attorney General could tell the White House Counsel, who should then
inform the president, to insure that the president would not associate further with the person under
criminal inquiry.
Finally, when asked for advice to give to the next White House Counsel, A.B. Culvahouse,
counsel to President Reagan, offered that a Counsel should “assume no policy responsibility (don’t
make the White House Counsel the “czar” of anything) – that would undermine his role as an honest
broker and his relationship with the agencies.” Cutler, on the other hand, responded that “there are
many instances where the White House Counsel should have substantive policy positions, e.g., on
6
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
vetoes, on Supreme Court briefs from the Solicitor General’s office, and on issues such as affirmative
action.” (Notes on file with Kassop.)
Thus, despite skepticism over how such an office can exist comfortably with one foot each
in law and politics, those who have served in it and those who have worked in close association with
it agree that the president requires someone who can sift through political and policy options with an
understanding of the law and who can advise the president as to what the law will and will not
permit. That is not a job for which the Attorney General has either the time or the statutory authority
to perform, and therefore, the need for an official with legal expertise within the confines of the
White House staff can be satisfied by the exercise of responsibilities performed by the Counsel’s
office.
The following sections will provide more detailed information on the functions of the Office,
the relationships it maintains with other governmental units, and its organization and routine
operations. A final section on Lessons Learned from prior Counsels will close with some practical
advice and cautions for its future occupants.
FUNCTIONS OF THE WHITE HOUSE COUNSEL’S OFFICE
Although the White House Counsel’s Office has assumed different tasks in different
administrations, the broader contours of its responsibilities began to take shape under Counsel Fred
Fielding in the Nixon administration, and have been remarkably consistent since the Ford years.
These responsibilities generally fall into the following categories. (For a summary, see Appendix
One.)
Advising on the exercise of presidential powers and defending the president’s constitutional
prerogatives;
Overseeing presidential nominations and appointments to the executive and judicial
branches;
Advising on presidential actions relating to the legislative process;
Educating White House staffers about ethics rules and records management and monitoring
adherence; and
Handling department, agency, and White House staff contacts with the Department of
Justice.
1. ADVISING ON THE EXERCISE OF PRESIDENTIAL POWERS &
DEFENDING THE PRESIDENT’S CONSTITUTIONAL
PREROGATIVES
Counsel tasks related to presidential powers include routine review of executive orders (and, in
unusual cases, drafting them); reviewing all pardoning and commutation recommendations; reviewing
requests for federal disaster relief; reviewing CIA-drafted intelligence findings and approving covert
action proposals; interpreting treaties and executive agreements; examining all presidential statements
for consistency and compliance with legal standards, and in anticipation of legal challenges; and
participating in editing the State of the Union address. Tasks that have consistently related to the
defense of a president’s constitutional prerogatives are fewer in number. These have generally
focused on issues related to executive privilege, war powers, and presidential disability or succession.
[In this list, links are needed from the executive orders, pardoning, and war powers points to the
Culvahouse interview.]
The responsibilities associated with presidential powers are highly volatile. The present
Washington political environment is notable for partisanship, polarization, and confrontation.
Presidential actions and decisions are subjected to extraordinary scrutiny, and a twenty-four hour
The White House Counsel’s Office
7
news cycle accelerates the pace of decision-making. For these reasons, any distinction between the
“routine” and the more “crisis-laden” exercise of a president’s constitutional powers is essentially
artificial. At any time, political events may transform an otherwise routine exercise of presidential
powers into an extraordinary undertaking. As Clinton Counsel Bernard Nussbaum concluded, “Small
(and not so small) policy and political problems grow into legal problems. It was my job to make sure
that these political and policy brushfires didn’t become conflagrations.” (Nussbaum interview, p. 6)
Consequently, a White House Counsel must be well informed about political developments
throughout the White House and the executive branch.
Advising on Executive Privilege
Issues relating to the president’s constitutional prerogatives require both awareness of politics
and attentiveness to precedents. Nowhere are these two requirements more critical than in the
intensely sensitive clashes that can result when Congress, a court, or an independent counsel
exercising prosecutorial functions demands information (documents or testimony) from a sitting
president who refuses to accede to such demands.
Despite the primacy of high-stakes politics in these stand-offs between the branches, some
degree of political accommodation, rather than a purely “legal” answer, is more often the outcome of
such conflicts. Although presidents are fiercely protective of their prerogatives, they may also
recognize the practical need to find some compromise to break the political logjam. White House
Counsels often find themselves caught in the cross-hairs, where their best legal judgment about the
appropriate presidential response is often overridden by more forceful political considerations from
influential political advisors.
Once we began to understand it, we decided to negotiate when the problem came up. As a
result, I don’t think we ever had a showdown on [executive privilege]. For instance, if a
committee wanted certain documents and certain information we would try to figure out
everything we could properly give to them and sit down with them – either I would,
[Assistant to the President for Congressional Relations] Frank Moore would or someone else
would – and try to negotiate on disclosing everything we possibly could. I don’t think we
had any confrontations of any serious consequence on the whole executive privilege issue as
a result of that. (Lipshutz interview, p. 27)
I think this President operated on the premise pretty much and I certainly did that whatever
the legal consequences or legal parameters were of executive privilege, if Congress really
wanted something, politically it almost was impossible to deny it. The more you stood on
privilege, the more you pointed to precedents, the more you showed these are the things that
the President didn’t turn over, the more they could make political hay out of it. As I say, we
operated on the premise that you could resist and you could maybe negotiate but that, by
and large, if Congress really wanted anything you have to give [it] to them, therefore, better
act forthcoming.
I think the worst rap they put on this administration was that they have stonewalled on
anything with the exception of Monica – obviously it was stonewalled. (Mikva interview, p.
5)
A more detailed discussion of executive privilege, specifically referencing recent decisions in this
area, can be found in the Relationships and in the Lessons Learned sections.
Advising on War Powers
In relative terms, the Counsel’s role in regard to war powers has seemed less controversial. As
chair of the War Powers Committee, the Counsel is responsible for notifications to Congress. In
keeping with presidential views of the War Powers Resolution as unconstitutional, though, Counsels
have provided Congress with a minimum of information “in the interest of comity.” In the words of
8
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
A.B. Culvahouse, “There is a real kabuki dance that was done. You sent a notice up to the Hill while
protesting all the time that you’re not providing notice.” (Culvahouse interview, p. 5) Like a kabuki
dance, the war powers dialogue is often quite ceremonial, lacks a clear beginning or ending, and
reveals much about the competition for political power.
Typically, precedent is followed very closely, with past letters serving as models for
correspondence.
War Powers is less of a problem because you can always rely on OLC to give you the ticktock on that. That’s a shared responsibility; I never worried much about war powers... (Gray
interview, p. 6)
... the War Powers Act discussions were very desultory. I think I saw my role and most of
the lawyers involved in the process saw their role and the political people saw their role as
trying to make sure that we did the minimum necessary to comply with the notice provisions
and other provisions the act required of us so we didn’t give Congress a free hit. (Mikva
interview, p. 13)
Advising on Presidential Disability and Succession
C. Boyden Gray observed that the Counsel’s Office is singularly responsible for designing
decision-making procedures for presidential disability and succession.
There’s a Twenty-fifth Amendment, that’s all – we didn’t inherit much on that but we did
develop a big decision tree thing which worked when [President Bush] had his thyroid
problem and I think has worked since. That was a big contribution to the Counsel’s Office,
the work that we did to put that all together.... I don’t think we involved anybody outside the
White House but I sat down and did it with the Chief of Staff ... [and] the White House
doctor.... What happens: If X then go to Y; if Z then go back to A. It’s just a decision tree
on how to handle disability and it worked like a charm faultlessly, perfectly when he went
into the hospital. (Gray interview, p. 6)
A.B. Culvahouse has commented on this recurring issue of temporary presidential medical
incapacity:1
This is an area where the lack of an institutional memory is atrocious. The White House
should not have to re-invent a process each time the POTUS [President of the United
States] has surgery. We did the same thing when President Reagan had surgery (I think for
skin cancer) in ‘87/’88.
The Limits of Advocacy
Complicating the Counsel’s work as a protector of presidential powers and constitutional
prerogatives is the lack of clarity associated with the Counsel’s responsibilities as an advocate. The
White House Counsel provides legal counsel to the office of the presidency, not to the individual
president. As such, the Counsel’s Office protects the powers of the office within the constitutional
order of separated powers. Determining whether the office or the individual is under attack,
however, may be difficult.
In fact, when I was first introduced to this job by Fred Fielding he said to me, “You are
counsel to the office of the presidency. You are not counsel to the President.” I absorbed
that and thought I understood what it all meant. However, in practice, it’s not a very useful
guide, because you really don’t know -- when issues like Whitewater come up -- whether
you’re representing the President or the presidency. For example, counsel can certainly with
a lot of noise created by the President’s political opponents, even if they are allegations
concerning the President’s own personal conduct. But as soon as it becomes clear -- and
1
Personal communication A.B. Culvahouse to Martha Joynt Kumar, White House Interview Program, October 9, 2000.
The White House Counsel’s Office
9
there’s no bright line here -- that this isn’t just noise by political opponents, but in fact
relates to the President’s personal conduct, then the President should have his own lawyer.
(Wallison interview, p. 25)
Identifying and drawing these distinctions, however, often has generated controversy. For
instance, Clinton Counsel Bernard Nussbaum was widely viewed as failing to make this distinction
between advocacy on behalf of the office and on behalf of an individual president. For his part,
Nussbaum wrote in his resignation letter that he left “as a result of controversy generated by those
who do not understand, nor wish to understand, the role and obligations of a lawyer, even one acting
as White House Counsel.” (As reported in Marcus and Devroy, 1994)
2. OVERSEEING PRESIDENTIAL NOMINATIONS &
APPOINTMENTS TO THE EXECUTIVE AND JUDICIAL BRANCHES
Participating in the Selection of Presidential Nominees and
Appointees to the Executive Branch
White House Counsel advising about presidential nominees and appointees to the executive
branch has typically focused on nominations to the top Justice Department positions and to the
General Counsel positions in the departments and agencies. Bernard Nussbaum bluntly stated that
his office “appointed the Attorney General, head of the FBI, Justice Department officials (Dellinger - I sent him over to OLC from the White House Counsel’s Office).” (Nussbaum interview, p. 5)
Within the White House, White House Counsels stressed their need to appoint a counsel to the
National Security Council (NSC) staff. Lloyd Cutler argued for appointing the NSC Counsels to the
White House Counsel’s Office, rather than to the NSC staff; C. Boyden Gray emphasized the need
for a low key NSC observer.
We worked out a deal that I could name [Scowcroft’s] deputy legal advisor to the NSC, Steve
Rademaker.... But that can be tricky. It was tricky and a huge problem in Iran-Contra....
Scowcroft agreed that I should never be in a situation like that. That’s why he allowed me to
have Rademaker in there. I don’t know how the current administration has done this. I don’t
know whether the White House Counsel has his person in the NSC operation but that to me
was very important, very, very important. (Gray interview, p. 23)
Participating in the Selection of Presidential Nominees to the Judicial Branch
The extent to which the Counsel’s Office has been involved in the judicial appointment process
has varied across administrations. (Goldman, Slotnick, Gryski, and Schiavoni 2005, 2007; Goldman,
Slotnick, Gryski, Zuk, and Schiavoni, 2003) In several recent administrations, the White House
Counsel oversaw the process from start to finish: the Counsel chaired the judicial selection
committee, supervised the vetting and clearance process, and prepared the nominee for confirmation.
In every administration, the judicial nomination process required the careful coordination of several
White House offices, consultation with the Justice Department, and extended negotiations with U.S.
Senators.
The selection process routinely varies for district, circuit, and Supreme Court nominations.
Senators tend to be more involved in nominations to the U.S. District Courts than they are in
nominations to the Courts of Appeal or, especially, to the U.S. Supreme Court. Partisanship, though,
plays an important role in determining the amount of influence that each player will have in the
process.
Unlike the Supreme Court, with courts of appeal and district courts you had to deal with the
local Republican, in our case senators if there were senators. If there weren’t senators, the
governors, congressmen and congresswomen. District courts, I seldom got involved. The
Justice Department had a lot of protracted negotiations ... about whether this was an
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
appropriate person and so forth or was this a person who shared the President’s judicial
philosophy. Courts of appeal I would more often get involved. There would be disputes
between the senators and the Justice Department. There would be disputes between maybe
two Republican senators from the same state, between the governor and the more senior
congressman or congresswoman. (Culvahouse interview, pp. 20-21)
The selection process itself has shifted from being centered in the Justice Department to being
firmly ensconced in the White House, albeit with the status of the Attorney General always a factor.
Carter Counsel Robert Lipshutz recalled that the Department of Justice believed that judicial
selection was its distinctive responsibility.
[White House involvement in judicial appointments] was a
Department because, number one, the White House was
particularly career people, and even Griffin [Bell, the Attorney
strictly their prerogative and that is helping the President
interview, p. 11)
struggle within the Justice
stepping into what many,
General] too, felt should be
pick the judges. (Lipshutz
During the Reagan administration, White House involvement in lower court nominations increased.
By the Clinton years, such involvement had become routine, although the Justice Department
continued to participate in the process. Members of the Clinton Counsel’s Office were invited to the
personal interviews with prospective lower federal court nominees, which were conducted by senior
officials in the DOJ’s Office of Policy Development. Counsel staff also contacted senators about
possible nominees, working with senior members and staffers of the Senate Judiciary Committee.
The judicial selection process is centered in the White House office. A lot of other White
House Counsel’s Offices did not have the breadth and authority we had (maybe because of
Foster and his access to the First Lady). We had special responsibility for Court of Appeals
and Supreme Court appointments. (Nussbaum interview, p. 5)
From the Reagan years onward, the judicial selection committee chaired by the Counsel
typically included members of the White House Counsel’s Office and the Department of Justice. In
the Clinton administration, it also included representatives from the First Lady’s Office and the
Office of Legislative Affairs. Under George W. Bush, the judicial selection meetings continued on a
weekly basis; convened by the White House counsel, they included the chief of staff, the director of
the personnel office, the assistant for legislative affairs, and the attorney general and relevant assistant
attorneys general. The counsel also held a second weekly meeting to discuss “’judicial strategy’”; at
these sessions, “decisions are made about the timing for sending requests for confirmation to the
Senate and about issues that may be foreseen about the confirmation process itself” (Patterson, 2008,
p. 70).
The selection committee’s assessments were both legal and political, weighing the potential
nominee’s legal philosophy and the likelihood of Senate confirmation. [See the Wallison interview for
an extended discussion of the Reagan judicial selection process.]
Well, it’s all done in conjunction with the Department of Justice and it’s pretty obvious to
any lawyer who the candidates are. It’s not rocket science. The question is always, “Can you
get the person you really...?” What’s the matrix of confirmability with whom you really want
to go with. You can’t do your ideal person, usually, because there’s a confirmation problem
or there’s a background problem or there’s a money problem or there’s something. So it
never lines up perfectly. (Gray interview, p. 9)
Supervising the Vetting and Clearance Process
The Counsel’s participation in the nomination and appointment process has minimally and
consistently involved the Office in supervising the vetting and clearance process (FBI, IRS, 278
forms and financial disclosure forms) for all presidential nominees to the executive and judicial
The White House Counsel’s Office
11
branches. The time and resources consumed by these reviews is extraordinary. (See “Rhythms” in the
Organization and Operations section, on this work over the course of an administration.)
Well, the FBI thing takes roughly three months although you can speed it up. You can do an
expedite and do it in a week if someone has been through it before. I think we did Cheney
over a long weekend. But if you’re starting from scratch with somebody, normally it’s three
to four months depending on how old they are. If they’re twenty-one, it won’t take that long.
If they’re fifty-one, they have a whole life to go through especially if they’ve traveled. So it
takes three months, average . It can take people three months just to fill out the forms so
you really have to hammer people and say, “The FBI can’t start until they know where you
live and that means filling out the form.” (Gray interview, pp. 21-22)
When the background checks were complete – or even while they were progressing – decisions
had to be made about whether to proceed with the nomination or appointment. In each
administration, White House Counsels noted that different standards were applied to appointments
than to nominations, and to nominations for less visible and more visible positions.
[Y]ou’d have some people that you might never send up to the Hill for confirmation, but
because they were strong allies of the President, supporters and/or were people that had a
lot to offer, you might appoint them to the President’s Foreign Intelligence Advisory Board
rather than nominate them to be undersecretary of defense because the President has
unilateral appointment authority. Maybe they go to a Schedule C position in OMB or DAS
[Deputy Assistant Secretary], Treasury or whatever. You were pretty darn pure about cabinet
people, deputy secretar[ies]. We were awfully pure about State, Defense, Treasury, Justice. ...
You make different calls about whether or not the person had access to classified
information, whether or not they had grant contract awarding authority. Different people are
suited for different things. Take a look at the [Senate] committee. There were some
committees that would take no prisoners and others – the finance committee, I think, was
pretty terrific about exercising discretion, where youthful indiscretions ... were not
disenfranchising if the person was a great Treasury securities expert. (Culvahouse interview,
p. 32)
Then, when the nominations were sent to the Senate, negotiations had to be conducted about the
legislators’ access to the reports.
How much of the FBI files do they get to see[?] We conduct the search; we do the FBI for
our benefit not for their benefit.... That was subject to enormous negotiation.... Huge fights
over that.... You have to negotiate them one by one.... [O]nce you concede to one
committee, you can’t cut back for another committee; they’re going to demand the same
treatment. But it’s got to be renegotiated and reinvented every time. (Gray interview, p. 16)
Preparing the Nominee for the Confirmation Hearing
Beyond vetting the nominees, the Counsel’s Office sometimes prepared them for the
confirmation hearings. This preparation could take the form of “murder boards.”
We [the Reagan administration] did a lot of murder boards, not just for judicial nominees but
for a lot of people. I probably did fifty murder boards in my twenty-two months.... You get a
bunch of lawyers and legislative types pretending to be senators and acting like horse’s rear
ends.... You can have too many [people on a murder board]. To me, there is an art to
running a murder board. I’ve seen some where too many people are trying to impress the
nominee, which is not what you want to do. What you want to do is anticipate questions, to
make it more difficult for him or her than it is going to be in fact, and hit all of the areas that
he or she is going to be questioned about. Supreme Court nominees are very difficult
because the hearings go on forever and ever. In my view, there should be four or five
questioners max. There should be an understanding that a good enough answer is good
enough. We’re not striving for perfection here – we’re striving for B-plus – and that you
don’t critique during the first two hours. You only critique on breaks thereafter.... This
12
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
person already is the President’s nominee. It’s too late [to educate them to policy positions].
The object is to get them confirmed and make sure they’re not so immobilized with
promises and commitments that they can’t exercise discretion with a full range of options.
(Culvahouse interview, pp. 18-19)
Although the Bush administration did not employ murder boards, Patterson reports that the
screening process remained “intense” (2008, p. 69).
3. ADVISING ON PRESIDENTIAL ACTIONS
RELATING TO THE LEGISLATIVE PROCESS
In recent presidential administrations, tasks in this category have included reviewing legislative
proposals; reviewing bills presented for signature or veto, and drafting signing statements and veto
messages; reviewing State and Defense Department authorizations and appropriations proposals;
drafting budget rescissions and deferrals; participating in the negotiations associated with Senate
treaty hearings; and being involved in legislative negotiations concerning policy, document requests
(see also executive privilege, above), treaties, and nominations.
Congressional negotiations are a daily fact of life for the White House staff and, therefore, for
the White House Counsel’s Office.
Well, to begin with there is hardly anything the president can do without the cooperation of
the Congress. Most of his programs require congressional approval. The budget requires
congressional action. Congress is always slow and we go through these continued crises of
shutting down the government and continuing resolutions, et cetera. Getting Congress to
move is very, very important. (Cutler interview, p. 34)
The extent to which the Counsel’s Office has been involved in these policy negotiations has varied
within and across administrations. Two Counsels who were deeply engaged in policy making were
Lloyd Cutler and C. Boyden Gray.
Well, you had a lot of dealings with Congress because both the members and their staffs
would call you up about things they were particularly interested in that they wanted you to
take up with the President, or get a decision favorable to their constituent or whatever. I was
used to a considerable extent to do what you might call lobbying Congress, although I’m not
a lobbyist myself in the normal sense of the word. (Cutler interview, p. 15)
The question is whether you take the lead or just participate in negotiations. I basically had
to lead all the negotiations with the civil rights groups and the Congress on the Civil Rights
Bill. I was sitting at the center of the table. I did not lead but I was a participant in all the
negotiations down in [George] Mitchell’s conference room in the Senate -- endless, endless
meetings on the Clean Air Act. They would go until two, three, four in the morning
sometimes. I wasn’t leading those, but I was there. (Gray interview, p. 4)
At a minimum, however, Counsels have routinely been consulted about legislative matters. The
resultant advising has typically involved as much politicking as it did lawyering. For example, the
Reagan and Bush administrations seized upon signing statements, which are drafted by the Counsel’s
Office, as opportunities for statutory interpretation by the executive. These administrations used
signing statements to urge courts to give the same legal weight to the “executive intent” of legislation
as courts have traditionally given to its legislative intent. Accordingly, the Counsel’s Office became
deeply involved in the associated political and policy debates.
The White House Counsel’s Office
13
4. EDUCATING WHITE HOUSE STAFFERS ABOUT ETHICS RULES
& RECORDS MANAGEMENT & MONITORING FOR ADHERENCE
Among the tasks in this category are distinguishing between White House expenses and
campaign expenses; reviewing presidential travel; approving requests for appointments with the
president, monitoring these for propriety, seemliness, legality, and executive privilege issues;
responding to document requests and subpoenas directed to the president and to other White House
and executive branch officials by congressional committees and Independent Counsels; and serving
as the ethics officer for the White House staff and executive branch political appointees. [In this list,
links are needed from the subpoena and ethics officer points to the Torkelson interview.] Past
Counsels stress that this work is essential to a president’s early success, because it allows an
administration to put its people in place, to establish responsible procedures, and to advance its
policy initiatives.
Perhaps the most prominent of the newer demands confronting the Counsel’s Office is the
intensified scrutiny of ethical matters within a presidential administration. This has generated a need
for a central coordinator, alert to potential problems and able to take pre-emptive (or corrective)
action. This issue arena is one of the many that draws the Counsel’s Office closer to other White
House units, and that obliges it to develop constructive relationships with Congress and various
other political actors.
Ethics laws, to quote C. Boyden Gray, “are quite complicated and obscure and overworked and
ought to be deregulated.” (Gray interview, p. 1) The White House Counsel’s Office is needed to
explain these laws to political appointees and to the members of the White House staff. This role is
needed particularly at the outset of an individual’s service in the White House or executive branch,
throughout the campaign season, and during investigations. (See “Rhythms” in Organization and
Operations)
Orienting New White House Staff and Executive Branch Officers
Federal ethics statutes and regulations are typically more stringent than those enacted in the
states. Likewise, the standards for the legislative and executive branches are different, creating the
need for former Congress members and staffers to be carefully briefed.
At the beginning of my tenure, we circulated [an ethics] memo that had all the details.
Everyone who was going to be appointed by the President would get this memo, everyone
on the White House staff got this memo. It was a memo from me and it laid out in detail
what all the rules were. But then I also would meet with groups of people who were about to
enter on to their jobs, in some cases they already had entered on to the jobs, maybe thirty at
a time.... All through the administration anyone who was going to be appointed to a job [was
affected]. And I would go through what the rules were and then I would give them a little
lecture about how important it was to abide by these rules and how the President was
trusting them to abide by these rules; that every time something happens, at no matter what
level of an agency, it is always the President’s responsibility that it happened. “You’ve been
appointed by Ronald Reagan. I will vouch for his honesty and his integrity and his desire to
do things the right way. So you owe him a responsibility to act in the most ethical possible
way. If there’s ever a question you should check with your Counsel or you can check with
me and I’ll be happy to provide you with any advice that you need on these questions.”
(Wallison interview, p. 27)
These orientation sessions would be reprised when an individual left the White House. For
example, the Counsel staff would review the Presidential Records Act and would “remind everyone
that these are presidential documents; you’re not walking out of the White House with them; these
are things that become part of the permanent record.” (Brady interview, p. 7)
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
Monitoring and Educating Staffers during Campaigns
The need to educate and monitor staffers is particularly acute during the campaign seasons,
both congressional and presidential. Then, the Counsel’s Office staff has been called upon to provide
general briefings and to circulate a more general memo about campaign activities. Changes in the
associated laws may create an even greater need for this information.
[W]e had two very active ethicists in the Office. One of them was Beth Nolan and the other
was Cheryl Mills. Both of them, that was their field. Beth was in charge of ethics in the
White House and Cheryl was her deputy. So the driving force was that the Hatch Act had
just been amended and it has caused some changes. It now allowed people to get more
involved than they had been previously. As I recall, it was Beth probably who said we really
need to get a memo out to everybody telling them what they can and can’t do and not to
overread the Hatch Act changes thinking they can do more than they should. (Mikva
interview, p. 17)
Reviewing Investigations and Associated Proceedings
As is suggested by the Counsel’s role in responding to document requests and subpoenas
directed to members of the White House staff and other executive branch officials, many Counsels
have had to oversee investigations. Whether conducted by Independent Counsels or congressional
committees, these proceedings have consumed much of the Counsel’s resources. (See also the
Organization and Operations and the Lessons Learned sections.)
My first job [in the Clinton administration], which occupied the bulk of my time really, was
to look in to the so-called White House – Treasury relationship having to do with the RFC
in reference to the Justice Department of the whole Whitewater matter.... Then I had to look
into the Espy case; I had to look into the Cisneros case, et cetera.... A lot of [developing
ethics rules for the White House staff] was done in collaboration with the so-called Office of
Legal Ethics, which is an independent quasi-Executive Branch agency, and which has the
responsibility under the various ethics statutes to write regulations, give opinions as to what
you can and cannot do. Now every department has an ethics officer so there is frequent
consultation with the ethics officers. But a lot of that came up in this Whitewater, Treasury,
White House contact investigation. (Cutler interview, p. 20) [Cf. the Office of Government
Ethics in the Executive Office of the President — http://www.usoge.gov/]
Bernard Nussbaum has described Washington as practicing a “culture of investigation.”
(Nussbaum interview, p. 4) That environment is not likely to change in the near future. Although the
expiration of the Independent Counsel statute will almost certainly alter the investigatory process,
investigations will doubtless continue and will have profound implications for the Counsel and the
Counsel’s Office.
5. HANDLING DEPARTMENT, AGENCY, AND WHITE HOUSE
STAFF CONTACTS WITH THE DEPARTMENT OF JUSTICE
The relations between the Justice Department and the Counsel’s Office often are quite close.
On occasion, for example, DOJ appointees and Counsel staff members have been recruited to and
from one another’s offices. This occurred in the case of Clinton Counsel Beth Nolan, who was the
Assistant Attorney General-designate in the Office of Legal Counsel. Similarly, Clinton Solicitor
General Walter Dellinger previously served as an Associate Counsel and as Assistant Attorney
General for the OLC. In the George W. Bush administration, the first deputy White House Counsel,
Timothy E. Flanigan, had directed the OLC in the first Bush administration.
The White House Counsel’s Office
15
Monitoring Contacts with the Department of Justice
The Counsel’s Office functions as a gatekeeper for all contacts between the White House and
the Department of Justice.
... all requests for OLC opinions had to go through me, all communications with the
department had to go through my office.... [T]here were certain exceptions but no one could
call over to the Deputy Attorney General and the solicitor general directly; they had to go
through me. My typical point of contact was the Deputy Attorney General for everything
except OLC opinions, then I would call the head of OLC. (Culvahouse interview, p. 16)
The White House Counsel’s oversight is meant to ensure that communications between the
White House and the Justice Department are properly conducted. Any effort to influence the legal
judgments of the Department would generate significant difficulties for an administration. Reagan
Counsel A.B. Culvahouse noted, for instance, that departmental statements of administrative policy
were routinely reviewed unless Justice was issuing them. Contacts with the DOJ, in brief, have serious
implications for presidential power and for policy development, and therefore are carefully
supervised.
Requesting OLC Legal Opinions
The resources of the OLC -- including its institutional memory -- render this office an
invaluable source of legal expertise for the White House Counsel. Quite simply, the Counsel’s Office
cannot provide all the information and the advising that an administration needs.
OLC is the single most important legal office in the government. More important really in
terms of scholarship and memory and research – White House Counsel’s Office doesn’t
really have the staff to do all [that] and they shouldn’t. It should be done in OLC.... [T]he
White House doesn’t go to court without the department.... OLC was a huge problem for us
in the sense that they were putting on a brake. We were free to ignore their advice but you
knew so you did so at your peril because if you got into trouble you wouldn’t have them
there backing you up, you wouldn’t have the institution backing you up. So you did it at your
risk; you did it at your risk.... You’re best able to avoid the land mines if ... you restore the
rightful place of the Office of Legal Counsel. When in doubt, ask them and they’ll tell you
where the land mines are. (Gray interview, pp. 18-19, 21)
Several other Counsels echoed Gray’s description of the OLC as a formidable ally and a
significant check on the White House. However, precisely because of the similarities in their
responsibilities, the relationship between the White House Counsel and the OLC can be highly
competitive. Both are recognized as legal experts immersed in politics and policy. Exacerbating
matters, the jurisdictions of their offices, having evolved through practice, are blurred and lack strict
bureaucratic rationality.
Yet, to an even larger extent, this competitive relationship reflects differences between the
organizations. The White House Counsel is appointed by the president and does not require Senate
confirmation. The members of the Justice Department include presidential appointees who are free
of Senate confirmation, presidential nominees who are subject to Senate confirmation, and careerists.
As such, Department officials have numerous and crosscutting loyalties. Further, while the
president’s claim to executive privilege in regard to communications with the White House Counsel
has been delimited in recent years, any possibility of the president successfully making such a claim in
regard to the OLC may have been sacrificed in the Reagan administration.
... it had to do with a request by the Senate Judiciary Committee for all of William
Rehnquist’s files when he was head of the Office of Legal Counsel at the Justice
Department.... I thought that was simply harassment and I thought they were trying to create
the kind of issue they could use to stop the nomination. I and the person who was then head
of the Office of Legal Counsel in the Justice Department both felt this was a good executive
privilege claim because the Office of Legal Counsel is the lawyer for the entire government,
and in effect for the President, and everyone discloses everything to them to get rulings
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
16
about legal issues. The whole underpinning of the attorney/client privilege, which is part of
the executive privilege, is to get people to disclose all relevant information so you can give
them the right advice. I thought, if there was ever a case, this was it. So I sent a memo to the
President saying I thought he ought to claim executive privilege in this case, but Meese did
not like at all that idea. We debated it in front of the President and the President decided he
wouldn’t claim it.... [I]t turned out not to be as serious a problem as I thought, except that it
creates a precedent. In the future, if someone wants the files of the Office of Legal Counsel,
they are more likely to get them because this precedent exists. The result of that is that some
people aren’t going to go to the Office of Legal Counsel for advice if they have to disclose
things that they don’t want turned over to a Senate committee. (Wallison interview, p. 20)
Requesting a legal interpretation from the OLC, therefore, is clearly a strategic undertaking. If
the Counsel does not involve the OLC -- or, having received the OLC’s interpretation, proceeds to
set it aside -- the White House is isolated and will lack support for its actions. Politically, this is risky
and even dangerous. C. Boyden Gray, for example, unequivocally concluded that the White House
should never go to court without Justice’s support. At the same time, the OLC is staffed by experts
who cannot claim executive privilege and, in any event, have allegiances that extend beyond the
White House.
PRINCIPAL RELATIONSHIPS IN THE EXECUTIVE BRANCH
Depending on the course of politics and policy in a presidential administration, the White
House Counsel will interact with most of the executive branch departments and agencies. Likewise,
given its functions, this Office could -- and often does -- interact with every White House unit. At
the very least, the Counsel’s Office will communicate with the General Counsels throughout the
executive branch, and will also process the paperwork associated with every presidential nominee or
appointee. Having acknowledged the extent and scope of the Office’s network, this section highlights
the offices and departments with which past Counsels were in most frequent contact.
THE WHITE HOUSE
Within the White House, the Counsel’s principal relationship -- and greatest source of influence
-- has been either the president or the Chief of Staff. To whom the Counsel reports frequently has
been a product of individual Counsels’ past professional relationships, and this authority relationship
has been clearly established at the time of appointment. This clarity is essential, if the president
wishes to avoid destructive competition between two offices that are crucial to the success of the
administration and its policy agenda.
The President
In electing to have the White House Counsel report directly to the president, presidents often
have appointed individuals who were their longstanding friends or professional colleagues. Counsels
with this profile included the following individuals:
•
Ford Counsel Philip Buchen, a former classmate and law firm partner of the
President;
•
Carter Counsel Robert Lipshutz, a longtime friend and former attorney for the
President;
•
H.W. Bush Counsel C. Boyden Gray, who worked for George Bush throughout his
twelve-year tenure in the White House;
The White House Counsel’s Office
•
Clinton Counsel Bernard Nussbaum, who had hired Hillary Rodham Clinton to
work on the Nixon impeachment investigations and remained a good friend of the
Clintons throughout the intervening years;
•
W. Bush Counsel Alberto Gonzales, a friend of and former counsel to Governor
Bush.
17
Even with the advantage of a prior relationship with the president, Counsels have faced various
challenges to their position and their influence. Some have found that prior relationships were
insufficient guarantees of influence.
I talked to Hillary about some of these things [policy and political problems]. She agreed
with me about the Independent Counsel, but she folded on me. She just came in and said,
“The President wants to get on with his agenda.” There was trust and confidence between
the First Lady and me, but she was torn between me and her husband. I had only a few
friends in the White House, including the First Lady. (Nussbaum interview, p. 7)
The White House staff is likely to include a number of longtime presidential colleagues, all of whom
may compete for access to the Oval Office.
Of course, even if the Counsel is able to sustain a close relationship with the president, there is
no guarantee that the president will seek or follow advice. President Ford’s decision to pardon
former President Richard Nixon, arguably the most significant legal decision of his administration,
was made without any consultation. Counsel Philip Buchen provided only post hoc support and legal
reasoning.
Two administrations have recruited Counsels to raise the profile and significantly re-establish
the Counsel’s Office within the Washington community (see, too, “Turnover” in Organization and
Operations). President Jimmy Carter appointed Lloyd Cutler to meet these needs; President Bill
Clinton named Cutler, and then former Congressman and U.S. Court of Appeals Judge Abner Mikva
and former U.S. Attorney and D.C. Corporation Counsel Charles Ruff; President George W. Bush
turned to former Reagan White House counsel Fred Fielding. Cutler, in particular, has publicly
stressed that he entered office with a promise of direct communication with the president. He
claimed to have held President Carter to that commitment.
When I was asked by the President [Carter] to take this job, it was a mid-life crisis of his
administration, the so-called “malaise” period. I said, “What kind of a role do you want me
to play?” I knew him, but I didn’t know him that well. He said, “I want you to play sort of a
Clark Clifford role.” I got that in writing and, of course, Clifford was so venerable and such
a great storyteller, everybody thought that Harry Truman never made a move without
consulting Clark Clifford. And every time I got left out of a meeting I would go to Jordan or
I would go to the President and I would say, “I think that Harry Truman would have wanted
Clark Clifford in this meeting.” I was older than all the rest of them so nobody could gainsay
me.... In theory I had the same deal with President Clinton but I didn’t have the time to
really capitalize on it. (Cutler interview, pp. 10-11)
The White House Counsel and Presidential Privileges
The issue of confidentiality in the president’s communications with the White House Counsel is
currently a matter of intense concern. Of the various legal privileges that a president or a Counsel
might claim -- executive privilege, government attorney-client privilege, work product protection,
deliberative process protection, and common interest doctrine -- the two that are most salient are
executive privilege and government attorney-client privilege.
The courts view these two as clearly distinct. Executive privilege refers to the constitutionallybased protection of confidentiality of a president’s communications with any government officer
when the chief executive seeks advice on the exercise of official governmental duties. (See the
Wallison interview, p. 18, for a good explanation of the basis for executive privilege and how it may
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
apply.) Its purpose is to promote candid and frank discussions between a president and his advisors.
Government attorney-client privilege is a variant of the common-law attorney-client privilege, but
with the following crucial distinctions:
1. the client is the Office of the President of the United States; and
2. the advice being rendered by a government attorney to the president is “for the purpose
of securing primarily either
(i) an opinion on law, or
(ii) legal services, or
(iii) assistance in some legal proceeding.”
(In re Sealed Case, 737 F. 2d at 98-99 [quoting U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357, 35859 [D. Mass. 1950]] in In re: Bruce Lindsey [Grand Jury Testimony], 158 F. 3d 1263 [D.C. Cir. 1998])
Because the White House Counsel’s Office is in the unique position of providing both political
and legal advice to the president, navigating the shoals of presidential privileges is an especially tricky
venture. Judicial acceptance of a privilege claim is determined by many factors, such as the following:
whether the nature of the conversation is political or legal;
whether the person communicating with the president is doing so in either a
legal or political capacity;
whether the request for presidential communications comes from the courts,
Congress or an Independent Counsel;
whether the information is needed in a civil or criminal proceeding;
whether the sufficiency of the asserted public interest in confidentiality
outweighs the strength of the need for the information by another institution; and
whether the requested information is available from an alternative source.
Varying combinations of these factors will produce different judicial outcomes, making for complex
and unpredictable results.
The Clinton administration was embroiled in numerous legal controversies where it vigorously
asserted a whole host of privilege claims, and it found little comfort in the federal court decisions in
these cases. Legal scholars and commentators have reacted critically to that administration’s decision
to litigate. In contrast, most other White Houses found ways to assert such claims, but ultimately
chose to resolve these conflicts through compromise, thus preserving the existence of the privilege.
In essence, the Clinton administration forced the issue into the judicial process, and the courts ruled
against it, narrowing considerably any maneuverability for such claims in the future.
The impact of these rulings on government attorney-client privilege and on the White House
Counsel’s Office’s relations with the president, in particular, was especially damaging. In July 1998,
the United States Court of Appeals for the District of Columbia ruled that Deputy Counsel Bruce
Lindsey was not protected by government attorney-client privilege from testifying before a federal
grand jury about conversations with the president about possible criminal conduct by the president
and other government officials. The Court said:
With respect to investigations of federal criminal offenses, and especially offenses committed
by those in government, government attorneys stand in a far different position from
members of the private bar. Their duty is not to defend clients against criminal charges and
it is not to protect wrongdoers from public exposure…Unlike a private practitioner, the
loyalties of a government lawyer therefore cannot and must not lie solely with his or her
client agency. (In re: Bruce Lindsey [Grand Jury Testimony], 158 F. 3d 1263 [D.C. Cir. 1998])
In reaction, Counsel Charles Ruff commented:
The practical result of the court’s decision is that the president and all other government
officials will be less likely to receive full and frank advice about their official obligations and
duties from government attorneys. (Marcus, 1998, p. 1)
The White House Counsel’s Office
19
Thus, the Counsel’s Office suffered a severe blow from this decision, and its ramifications will
profoundly affect the next Counsel. In one sense, the specific circumstances of this case, where a
Deputy Counsel was subpoenaed to testify in federal court about possible criminal behavior by a
president, were so idiosyncratic as to be unlikely to recur very often. Yet to Bush Counsel C. Boyden
Gray, the most unfortunate aspect was that the privilege was lost in a case concerning the president’s
personal behavior, rather than his official duties or matters of national security, where assertions of
presidential privilege are treated more deferentially by the courts.2 Gray called this “the weakest
possible case,” which produced “rulings that reduce the leverage future presidents will have in cases
when it really matters.” (Strobel, 1998, p. 10)
Executive privilege in the years since the end of the Clinton administration has taken some
different turns. It has arisen in circumstances that are far different than those of the Clinton years,
including: 1) Vice President Cheney’s refusal to provide information about his National Energy
Policy Development Group to the General Accountability Office administrator and to government
watchdog groups, Judicial Watch and the Sierra Club; 2) requests for top White House officials to
testify before national commissions; 3) demands by congressional committees for documents and
testimony from judicial nominees and other candidates requiring Senate confirmation, along with
requests for senior White House officials to testify before congressional investigating committees;
and 4) revising the law pertaining to access to presidential records (see Baker, 2005, p. A6). White
House action on all of these fronts has been exceptionally strong and consistent in its mission to
protect presidential communications. Most would judge that the results of its efforts have been
largely successful.
The Bush administration made no secret of its intention to be aggressive in its protection of
presidential prerogatives, and to be especially protective of executive privilege. It stated openly that it
believed that previous administrations had relented too easily when faced with requests for
confidential White House communications, and that this reluctance to push this concept to the limits
had seriously weakened protection for the office and for the use of executive privilege by future
occupants. It criticized the Reagan administration for succumbing too quickly to demands for
presidential documents, on the other hand, it noted that the Clinton administration took its claims of
executive privilege to court, and lost on all counts. Thus, under both previous administrations,
protection for executive privilege had diminished.
National Commissions
The administration permitted National Security Adviser Condoleezza Rice to provide sworn
testimony before the National Commission on Terrorist Attacks Upon the United States (the “9/11
Commission”) in a public hearing on April 8, 2004 after lengthy negotiations produced an agreement
that would allow her to testify but with an acknowledgement that this would not create a precedent.
It would have been constitutionally tenable, though not politically palatable, for the president to insist
that she not testify, since the topic under inquiry was the most extraordinarily sensitive, national
security matter and would invariably involve her conversations with the president. Whether it created
a precedent for the future, despite protestations to the contrary, remains to be seen until the next
time a similar situation arises.
Demands from Government Agencies and from Independent Groups
Vice President Cheney put up strong resistance to efforts from the GAO and from
independent groups to compel him to release records from his energy task force meetings. He won
2
In a comparable context, see the contrast between Clinton v. Jones (520 U.S. 681 [1997]) (no presidential immunity from
civil liability for personal conduct) and Nixon v. Fitzgerald (457 U.S. 731 [1982]) (absolute presidential immunity from
civil liability for acts taken in an official capacity). See, also, U.S. v. Nixon (418 U.S. 684 [1974]) for special
consideration of privilege claims based on national security.
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
the round with GAO Comptroller David Walker in December 2002 when District Court Judge John
D. Bates ruled that the GAO lacked standing to sue the vice president for refusing to turn over the
records (see Walker v. Cheney, 230 F. Supp.2d 51 [D.D.C. 2002]). In February 2003, the case ended
when the GAO decided not to appeal the ruling. The case did not reach the point where Vice
President Cheney needed to actually claim executive privilege, rather, he won the court battle more
on procedural grounds rather than on substantive ones.
The second case filed against Vice President Cheney requesting access to his task force
records came from Judicial Watch and the Sierra Club. Similarly to the district court ruling in the
GAO case, the U.S. Supreme Court ruled in June 2004 largely on procedural grounds but with
language that was clearly deferential to the executive branch, noting that “special considerations
control when the Executive Branch’s interest in maintaining the autonomy of its office and
safeguarding the confidentiality of its communications are implicated” (see Cheney et al. v. U.S. District
Court, 542 U.S. 367 [2004]). At issue in the case was the question of whether the D.C. Circuit Court
of Appeals had the authority to issue a writ of mandamus against the District Court, as requested by
the Vice President, which would order the District Court to halt the discovery process in the suit by
the two groups against the Vice President.
Without reaching the substantive question of executive privilege, the Supreme Court ruled
that the Court of Appeals did have the discretion to grant a mandamus petition but that it had
misinterpreted the scope of protection afforded to presidential immunity from judicial process in
U.S. v. Nixon (418 U.S. 683 [1974]), and that the protection in civil suits here was broader than that in
criminal proceedings, as in Nixon. The Court remanded the case to the Court of Appeals for further
action, reminding it of “the paramount necessity of protecting the Executive Branch from vexatious
litigation that might distract from the energetic performance of its constitutional duties” (Cheney et al.
v. U.S. District Court).
In a unanimous ruling in May 2005, the Court of Appeals dismissed the lawsuit altogether,
thus, sparing Vice President Cheney from having to disclose the details of internal government
meetings under federal open meetings laws. The decision contained language that bolstered the
executive branch’s protection of confidentiality, despite the fact that no specific claim of executive
privilege was actually presented in the case: “The president must be free to seek confidential
information from many sources, both inside the government and outside” (see In Re: Cheney, No. 025354 [2005]). The decision was viewed predictably by opposing sides: the administration was cheered
by the strong affirmation of the principle of executive branch confidentiality, while open government
advocates saw it as a setback to its efforts to make government accountable and transparent.
Demands from Congress: The Senate Confirmation Process and Oversight Investigations
A number of Bush administration nominations faced demands from Senate committees for
documents from prior executive branch positions held by specific nominees. There was an unusually
high number of these confrontations during the Bush years because there was a pattern of selecting
nominees who had held previous sensitive positions in either the current Bush or Reagan
administrations. It could be – or should have been - expected that these nominees would be asked by
Senate committees during the confirmation process to discuss their prior work and to produce some
of it as evidence of their professional competence. When the White House balked at these requests
and claimed that the Senate was overstepping its bounds, a clash between the branches ensued. What
makes this especially noteworthy is the frequency of such interchanges.
The administration faced this issue of Senate demands for documents from judicial
nominees at least four times: with Miguel Estrada on his nomination to the D.C. Circuit Court of
Appeals, and with Harriet Miers, John Roberts and Samuel Alito on their nominations to the U.S.
Supreme Court. The administration allowed the Estrada and Miers nominations to be withdrawn
rather than to relinquish the papers, while it managed to reach some accommodation with the
Judiciary Committee on the Roberts and Alito selections. Estrada, Roberts and Alito all had some
The White House Counsel’s Office
21
combination of prior work at either the Department of Justice (in either the Solicitor General’s office
or in the Office of Legal Counsel) or in the White House Counsel’s office in the Reagan
administration. Miers was the sitting White House Counsel at the time of her nomination to the
Supreme Court. In all of these cases, it was predictable that there would be inter-branch clashes,
given the already politically charged environment of Senate confirmations and the uncommon
ingredient that each of these nominees had worked in executive branch offices that claimed some
degree of confidentiality from having to disclose their work-product to a coordinate branch of
government.
A similar pattern evolved with the nominations of sitting White House advisers to other
executive branch positions, raising the issue of high-profile officials already serving in non-Senate
confirmed positions in the White House who would now face public scrutiny in open Senate
confirmation hearings where, as with the judicial nominations, the Senate committees would expect
to question the nominees and have access to their records as a basis for judging their professional
fitness. Among those included were National Security Adviser Condoleezza Rice, on her nomination
as Secretary of State and White House Counsel Alberto Gonzales, on his nomination as Attorney
General. The record here was successful on both, although the confirmation hearings were
exceptionally testy, leaving some bitterness on both sides that would come back to haunt these two
new Cabinet members in subsequent Hill appearances.
As the Bush administration heads towards the end of its tenure, there are executive privilege
battles still underway, and the expectation is that these conflicts may well persist into the next
administration. They have the potential to pose the most significant challenges to executive privilege
since the 1974 Supreme Court decision in U.S. v. Nixon, since they involve officials closest to the
president.
The most serious of these current conflicts arose out of congressional efforts to find the
facts about the Justice Department firing of nine United State attorneys in late 2006. Both houses of
Congress instituted inquiries into this matter in 2007 through the their respective Judiciary
Committees, requesting documents and/or testimony from Alberto Gonzales (then-Attorney
General), Harriet Miers (former White House Counsel), Sara Taylor (former White House political
director), Josh Bolten (White House chief of staff), Karl Rove (then-Deputy White House chief of
staff and former Director of the Office of Political Affairs), William Kelley (then-Deputy White
House Counsel), and J. Scott Jennings (then-Deputy Assistant to the President in the Office of
Political Affairs). The only witness to appear was Taylor, who testified before the Senate committee
in July 2007, but refused to answer questions that she thought were protected by privilege.
This matter has already spawned three claims of executive privilege by President Bush in an
effort to quash congressional attempts to demand White House communications and testimony
about internal decision-making processes, contempt citations against Miers, Bolten and Rove, and a
lawsuit initiated by the full House to force compliance with its subpoenas. That suit has resulted in
two federal court decisions. The District Court ordered Miers and Bolten to appear before the House
Judiciary Committee and to provide the subpoenaed documents (Committee on the Judiciary of the U.S.
House of Representatives v. Miers et al. [No. 2008-0864, 7/31/08], while the D.C. Circuit Court of
Appeals granted a temporary stay in this dispute (Committee on the Judiciary of the U.S. House of
Representatives v. Miers et al. [No. 08-5357, 10/6/08]).
In the District Court opinion, Judge Bates (a George W. Bush appointee) used strong
language to cast doubt on the administration’s arguments. He rejected its theory of absolute
immunity that maintained that the communications of close presidential advisers (and former
advisers) were categorically privileged, and that Congress has no legitimate interest in inquiring about
why the nine prosecutors were dismissed. He states, “The executive’s current claim of absolute
immunity from compelled Congressional process for senior presidential aides is without any support
in the case law.” Even more forcefully, he writes that, “At bottom, the Executive’s interest in
‘autonomy’ rests upon a discredited notion of executive power and privilege. As the D.C. Circuit and
the Supreme Court have made abundantly clear, it is the judiciary (and not the executive branch
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
itself) that is the ultimate arbiter of executive privilege. Permitting the Executive to determine the
limits of its own privilege would impermissibly transform the presumptive privilege into an absolute
one, yet that is what the Executive seeks through its assertion of Ms. Miers’s absolute immunity from
compulsory process. That proposition is untenable and cannot be justified by appeals to Presidential
autonomy” (Committee on the Judiciary of the U.S. House of Representatives v. Miers et al. [No. 2008-0864,
7/31/08], p.86). He ruled that Congress, indeed, has a legitimate and an important interest in inquiry
here because the House Judiciary Committee is specifically charged with oversight of the Department
of Justice.
After the White House lost its effort to ask for a stay of the District Court’s ruling, it
appealed to the D.C. Circuit Court of Appeals, which, in a per curiam opinion on October 6, 2008,
granted the administration the temporary delay it requested while the appeal from the District Court
is pending. The appeals court recognized that “The present dispute is of potentially great significance
for the balance of power between the Legislative and Executive Branches. But the Committee
recognizes that, even if expedited, this controversy will not be fully and finally resolved by the
Judicial Branch – including resolution by a panel and possible rehearing by this court en banc and by
the Supreme Court – before the 110th Congress ends on January 3, 2009.” Once the 110th House
ceases to exist, the subpoenas will expire, and the case could become moot, but if not, “this course
has the additional benefit of permitting the new President and the new House an opportunity to
express their views on the merits of the lawsuit” (Committee on the Judiciary of the U.S. House of
Representatives v. Miers et al. [No. 08-5357, 10/6/08]).
The continuation of this case into the new administration has prompted scholars to consider
novel questions that it could raise. For example, could a former president still claim executive
privilege on behalf of former aides? And if he did, wouldn’t it be up to the incumbent president to
decide whether such claims are in the best interest of the institution of the presidency (Froomkin,
8/1/08)? Judge Bates noted in his opinion that “A former President may still assert executive
privilege, but the claim necessarily has less force, particularly when the sitting President does not
support the claim of privilege” (Committee on the Judiciary of the U.S. House of Representatives v. Miers et al.
[No. 2008-0864, 7/31/08).
One additional development of note here is Attorney General Mukasey’s September 30,
2008 appointment of a special prosecutor, Nora Dannehy. She will investigate the firing of the U.S.
attorneys to determine if there was White House involvement, if the firings were politically
motivated, and if there is sufficient evidence to bring criminal charges against those responsible for
the decisions to dismiss the attorneys. Mukasey agreed to appoint a prosecutor on the
recommendation of an internal Justice Department report that cited frustration in its own inquiry
because two key witnesses, Miers and Rove, were uncooperative. The prosecutor will have subpoena
power which the internal department probe did not. Within days of the prosecutor’s appointment,
the Department of Justice issued a statement that the White House would cooperate fully with the
prosecutor (The BLT, 10/1/08).3
The final contribution of the Bush administration to post-Clinton executive privilege
controversies may be the one with the longest shelf-life, since it began in November 2001 and still
lingers today. This is the matter of public access to presidential records. President George W. Bush
issued an executive order on November 1, 2001 titled “Executive Order 13233: Further
Implementation of the Presidential Records Act” that purported to “provide for an orderly process,
so that information can be shared….” (Fleischer, White House Briefing, 11/1/01). Critics saw in the
revised procedures real potential for indefinite delay in the release of records, along with other
3 An interesting side note here is the letter sent to the Department of Justice from Deputy White House Counsel Emmet
Flood that detailed the documents that the White House did and did not release to the Department for its internal
inquiry. It withheld internal documents about the firings but did not assert privilege, since the Department of Justice is
part of the executive branch. Flood noted, however, that the documents were “covered by the deliberative process
and/or presidential communications component of executive privilege in the event of a demand fro them by
Congress” (The BLT, 10/1/08). Clearly, this controversy will continue to unfold, both in the courts and in Congress.
The White House Counsel’s Office
23
objections (e.g., diminution of the archivist’s role, expanding the authority of former presidents to
withhold records, authorizing presidential assistants or relatives to make privilege claims, and
extending the right, for the first time, to the Vice President to make privilege claims.
The controlling authority for public release of presidential records was the Presidential
Records Act of 1978 (PRA), along with an executive order from the Reagan administration issued in
1989. The underlying principle was public ownership of presidential papers, with access and release
pursuant to regulations established ultimately by the National Archives and Records Administration
(NARA).
Scholars and other groups mobilized on two fronts to challenge the order: they testified in
Congress and sued in federal courts. It took six years for their congressional testimony to finally bear
fruit, but it was an unfinished victory. The House passed H.R. 1255, the Presidential Records Act
Amendments of 2007, by a vote of 333-93 on March 14, 2007, but the bill has been held up in the
Senate by “holds,” first by Senator Jim Bunning (R-KY), and then by Senator Jeff Sessions (R-AL).
The legislation would: 1) establish a 40-day deadline for current and former presidents to raise
executive privilege claims; 2) limit the authority of former presidents to withhold presidential records,
3) limit the right to make executive privilege claims to presidents alone, and not their heirs or
assistants, and 4) withdraw the right to claim executive privilege afforded to Vice Presidents in EO
13233. It seems all but assured that there will not be a Senate vote by the end of the 110th Congress
(and the president vowed to veto it, if passed). Thus, it would need to be re-introduced in the 111th
Congress or the EO 13233 revisited by the new administration.
The case in the courts was filed immediately by the American Historical Association, the
National Security Archive, and other professional groups, seeking injunctive and declaratory relief,
asking the court to find that “the order was an impermissible exercise of the executive power” (AHA
v. NARA, No. 01-2447, 10/1/07). These critics viewed President Bush’s effort to revise Reagan’s
executive order as, instead, a repeal of the PRA and replacement of it with a new executive order
whose provisions ran counter to the spirit and the law of the PRA. District Judge Colleen KollarKotelly dismissed the case on jurisdictional grounds in a decision on March 28, 2004, but the
plaintiffs filed a motion to “alter or amend” the judgment, and the court agreed in September 2005 to
reconsider its earlier ruling. On October 1, 2007, Judge Kollar-Kotelly struck down the section of the
EO that permits a former president to indefinitely delay the release of White House records, ruling
that it is contrary to the PRA. The court did not reach the objections to the EO that relate to claims
of privilege, holding that they were not yet ripe for judgment because no incumbent or former
president or former vice president had actually asserted a privilege claim to any document at issue at
that time.
Two other records-related issues, with privilege implications, will remain “live,” even as the
Bush administration winds down. District Judge Kollar-Kotelly ordered Vice President Cheney and
the National Archives in a ruling on September 18, 2008 to preserve all of his official records
(Citizens for Responsibility and Ethics in Washington et al. v. Richard Cheney et al. [No. 2008-1548]). A
watchdog group, Citizens for Responsibility and Ethics in Washington, along with scholars and
others, sued Vice President Cheney in an effort to insure that he would comply with the Presidential
Records Act. These plaintiffs feared that Cheney might destroy or withhold some of his documents,
given that he had previously claimed that the Presidential Records Act applied to only some of his
papers. His filing with the court indicated that he had a narrow interpretation of “vice presidential
records,” which he said applied to records that related to “constitutional, statutory or other official or
ceremonial duties” of the vice president that come within “the category of functions of the Vice
President specially assigned to the Vice President by the President in the discharge of executive
duties and responsibilities” or “the category of the functions of the Vice President as President of the
Senate” (Lee, 9/21/08, p. A5). But commentators pointed out that such a definition would exclude
records pertaining to his work on the National Security Council and in other matters where he acted
without instructions from the president (Lee, p. A5).
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
Finally, the admission of the White House in 2007 that its email servers had not preserved
messages from 2003-2005 created a controversy, provoking congressional hearings before the House
Committee on Oversight and Government Reform and a lawsuit by Citizens for Responsibility and
Ethics in Washington.
The Chief of Staff
The alternative authority relationship, in which the Counsel reports to the Chief of Staff, was
chosen in the Reagan administration. Reagan’s White House Counsels had previously been
professional colleagues of the Chief of Staff. Still, a change in the Chief of Staff did not necessarily
result in the appointment of a new White House Counsel. The Reagan Counsels left office for a
variety of personal and institutional reasons: Fred Fielding, because he “was ready to go out into the
real world”; and Peter Wallison, because of pressures generated by Iran-contra. (Wallison interview,
p. 1) A.B. Culvahouse, the third and final Reagan Counsel, served two Chiefs of Staff, Howard Baker
and Kenneth Duberstein.
Although reporting to the president through the Chief of Staff might appear to be a
disadvantage, Culvahouse argues otherwise.
[Howard Baker] is my mentor and my friend. He was my ace in the hole in the White House.
I think to the extent I was an effective White House Counsel is because he gave me a lot of
support as did the President. But people did not try to go around me or over me very
frequently and never very successfully. (Culvahouse interview, pp. 21)
Still, the Reagan White House Counsels did preside over an office that was widely seen as being
focused more on law than on policy.
In the Reagan White House, the Counsel’s Office was viewed as sort of an additional final
check. Unlike I think some other White House Counsel’s Offices, we didn’t really have a
policy agenda. We felt like we were to be honest brokers as well as lawyers. (Culvahouse
interview, p. 2)
It seems, therefore, that the expectation that the Counsel relates to the Chief of Staff, rather than
directly with the president, contributed to effecting a significant change in the orientation of this
office.
The White House Staff
The White House Counsel’s Office is in contact with virtually every unit in the White House.
The consequent dialogues and negotiations add immeasurably to the Office’s workload. Tight
deadlines compound the difficulties.
Everything else [apart from Iran-contra] there were lots of cooks, lots of principals and lots
of lawyers, and sometimes just trying to reach a decision or trying to force a decision in a
timely way tended to be a lot of what I did. For right or wrong, we have to get an answer to
this question and get it today. ... The timing was forced by your own judgment or sometimes
you’d have deadlines. Sometimes you’d have the ranking Republican on the committee
calling up and saying if you don’t tell us what you think the committee is going to go forward
tomorrow regardless. (Culvahouse interview, p. 28)
The scarcest resource is always time, obliging the Counsel to exercise careful judgment in
determining which meetings to attend and in allocating staff. (See Organization and Operations for a
more detailed discussion of these issues.)
Past Counsels have stressed that their participation in domestic and foreign policy-making may
facilitate decision-making and avert difficulties. Notably, the Counsel has chaired the War Powers
Committee in recent administrations and, in a number of White Houses, including George W.
Bush’s, has regularly attended the meetings of senior domestic policy-makers. In particular,
The White House Counsel’s Office
25
speechwriting and legislative advising draws the Counsel’s Office into contact with a wide range of
other White House units. This circumstance has prevailed since the Eisenhower administration.
[I]t is our judgment that Counsel to the President should have, in addition to his other
functions, the responsibility of coordinating the development of the proposed legislative
program for the President. After the legislative program has been approved by the President
it should be the function of Counsel to coordinate the content of the State of the Union
message, the Budget Message, and Economic Report, as well as special legislative messages
to make sure they comport with the President’s program.
This part of the Counsel’s job during the Eisenhower Administration worked exceedingly
well during those eight years.... This function ... will require that Counsel to the President
work very closely with the Director of the Office of Management and Budget, the
Secretaries of the various departments, and also the General Counsels of the various
departments. He will also have to work very closely with the President’s Press Secretary, the
President’s Assistant in charge of Congressional Relations, the Chairman of the Council of
Economic Advisors, and the President’s Assistant in charge of preparing Presidential
messages. (Memo, Eisenhower Special Counsel Gerald Morgan and Associate Special
Counsel Edward McCabe to Ford White House Counsel Philip Buchen, 2 October 1974.)
The following list provides examples of the units with which the Counsel’s Office has
predictably and consistently established strong relationships.
Communications Office, regarding presidential speeches, travel, and campaign
expenses. This relationship may be especially close during the campaign seasons,
when travel expenses and contacts are subject to strict legal standards.
Legislative Affairs, regarding legislation, nominations, and confirmations.
Some White House Counsels have participated directly in legislative negotiations,
even communicating directly with Senators about judicial appointments.
Personnel Office, regarding appointments and clearances. This responsibility
also causes the White House Counsel’s Office to consult regularly with the FBI and
the ABA. C. Boyden Gray noted that the relationship between these two offices
was so close that his assistant married the director of the Office of Presidential
Personnel. (Gray interview, p. 26)
Office of Political Affairs, regarding travel and campaign expenses.
Press Office, regarding presidential press conferences. In some
administrations, the Counsel’s Office has also prepared presidential statements
about federal court rulings that affect the presidency or the executive branch.
Office of Management and Budget, regarding budget proposals, rescissions,
and deferrals.
National Security Council staff, regarding foreign policy.
The Office of the Vice President
As the office of the Vice President has increased dramatically in stature, functions and
influence during the last thirty years, the office of Counsel to the Vice President also has undergone a
change in profile and, thus, a change, or at least a deepening, in its relationship to the office of White
House Counsel. Analysts credit Walter Mondale with the expanded role of this office, as he
negotiated the outlines of his responsibilities with President Carter at the time of Carter’s selection of
Mondale as his running mate. Mondale made clear that he wanted to be a “roving minister” (one
without a specific policy portfolio), and that he expected to have “a seat at the table,” advising the
president on all major issues. Al Gore had a similar arrangement with President Clinton, with a
special focus on the “reinventing government” initiative and on overseeing technology policy.
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But, the most dramatic advance in vice presidential influence came with Vice President
Richard Cheney’s eight years in office during the George W. Bush administration, and it was
accompanied by the equally stunning transformation of the office of Counsel to the Vice President.
The redefinition of the office of the Vice President under Cheney seems likely to be one of the chief
legacies of the Bush presidency. Washington Post reporter Barton Gellman in his book, Angler: The
Cheney Vice Presidency (2008), quotes former Vice President Quayle as saying that Cheney had the
understanding from Bush that he would be a “surrogate chief of staff” (Gellman, 2008, p. 58).
According to Gellman, Cheney had an “unseen hand” and an operative role in every major policy
decision, both domestic and foreign, including the most sensitive, high-profile issues of national
security, the economy, the environment, and interpretations of law.
Whether the change in role of the vice president’s office can be attributed primarily to the
sheer force of personality, policy command and personal political network of Dick Cheney (and
could, thus, revert back to a more modest form with a subsequent vice president) or whether the
actual structure and function of the office have changed in a more long-term way that is likely to
outlive its most powerful occupant is not yet known. But few would deny that the vice-presidency
under Cheney has been profoundly more influential than any of his predecessors.
The increased scope of the substantive responsibilities of the Vice President demanded that
the office of Counsel to the Vice President would be in the loop on all of these policy discussions
and decisions. It is for this reason that the office of Counsel to the Vice President, at least under the
Bush administration, operated in close tandem with the White House Counsel’s office to an
unprecedented degree. In his book, The Terror Presidency: Law and Judgment Inside the Bush Administration
(2007), former OLC head Jack Goldsmith confirms this changed role of the Vice President’s
Counsel. Referring to the Bush administration, he says: “….in no previous administration was the
Vice President’s Counsel so integrated into the operations of the powerful Counsel’s Office. This
changed in the Bush II presidency, when the Vice President’s small office fused into the President’s
operating structures. The new arrangement reflected Vice President Cheney’s enormous influence on
President Bush” (Goldsmith, 76). He further noted that the Vice President’s Counsel under Cheney
was “an altogether different type of Vice President’s Counsel, one who received all of the important
government documents that went to Alberto Gonzales, and was always in the room when Gonzales
was discussing an important legal issue” (Goldsmith, 2007, p. 76).
Cheney’s choice of David Addington as his Counsel, and later as his Chief of Staff, was pivotal
in the re-conceptualization of both offices – that of the Vice President and that of Counsel to the
Vice President – because Addington shared Cheney’s penchant for an invigorated vice presidency
(and presidency), and, thus, both offices increased in power and function simultaneously. Here, too,
the sheer force of Addington’s personality and intellect may suggest that this redefined view of the
office of Counsel to the Vice President may reflect the expectations only of its current occupant and,
thus, may not last beyond the present administration. It is a choice that the next Vice President will
need to make between a more traditional model of Vice President and Counsel to that office versus
the model of those two offices under Cheney and Addington. Under either scenario, it seems clear
that a stronger connection between the two Counsel offices, Vice President and White House, has
now been forged, and might be expected to continue, although, as always, personality and relevant
professional expertise of the players will still be important contributors to how these two Counsel
offices will interact in the future.
DEPARTMENTS AND AGENCIES
Perhaps the most distinctive contribution of the White House Counsel to the wider White
House staff comes through its consultations with the Department of Justice, and more specifically
with the Office of Legal Counsel. The White House Counsel, as discussed in the Functions section
above, properly serves as the gatekeeper for all communications with the Department of Justice.
The White House Counsel’s Office
27
The Department of Justice
The extent and nature of a White House Counsel’s contact with the Department of Justice has
been particularly influenced by three factors:
1. The extent of the president’s judicial agenda, including judicial nominations;
2. The strength of the president’s relationship with the Attorney General; and
3. The relative activism of the White House Counsel and the Attorney General
as policy-makers.
A larger judicial agenda creates the need for more contacts with the Justice Department. Similarly, a
strong presidential relationship with an activist Attorney General may establish a line of
communication that is more exclusive of the White House Counsel.
All of the Justice Department contacts, however, are made in a political environment that is
highly suspicious of White House – Justice Department associations. Close relationships between
Presidents and Attorneys General in the Nixon and Reagan administrations, for example, injured the
credibility of both of these offices. This, in its turn, hampered the officeholders’ ability to implement
their policy decisions. Likewise, past executive privilege decisions may discourage presidents from
contacting the Justice Department, because those communications have even less protection than do
those with White House aides.
The Attorney General
The Attorney General and the White House Counsel appear, at first glance, to share similar
advisory roles and jurisdictions. Notwithstanding differences in accountability (the Attorney General
is subject to Senate confirmation) and circumstances (executive branch department vs. White
House), the distinctive contributions of the White House Counsel and the Attorney General have
more often been negotiated through practice than by invoking abstract principles. Conflict has
occurred frequently, and presidential libraries contain numerous memoranda of understanding
between attorneys general and White House Counsels.
White House Counsels and Attorneys General, however, have rarely been equals within an
administration. Presidents have tended to name either an Attorney General or a White House
Counsel with whom they were well-acquainted. The selections have, more often than not, been
connected to the judicial agenda of the president: a longer judicial agenda has generally coincided
with the nomination of a presidential colleague to the Attorney General’s office.
The appointment of a close presidential colleague to the White House Counsel’s Office,
however, may allow the Office to enter into more substantive policy discussions. Though C. Boyden
Gray hedges his comments with a series of qualifiers, he acknowledges that he did influence the
direction of several key legislative negotiations.
[President Bush] kept drawing me into the Civil Rights Bill in 1990-1991. I didn’t really want
to do that because it was very difficult politically, but he kept yanking me back into it.... But I
would say that civil rights was legal policy, not necessarily part of the Counsel’s Office
historically any more than the ADA [Americans with Disabilities Act] was. I did very little on
the ADA act.... I had a lot to do in the prior administration about teeing it up for then-Vice
President Bush to make it a campaign promise during the ‘88 campaign. But I spent very
little time on it once we got in the White House.... I was involved very little, maybe ten or
twenty hours worth. It was very little. The hours I spent were very important, it turned out,
but I was not involved in the day-to-day negotiation of the language or the lobbying.
I had to have permission to work on the Clean Air Act. I wanted to work on it because I had
an interest in it but it was something that [Chief of Staff John] Sununu was wary about and
the President was a little nervous about because of the time it would take from other
responsibilities. Again, I could only do it because I had discharged my other obligations. I
think at the end of the day people were appreciative of my being involved in it. (Gray
interview, p. 2)
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
The Office of Legal Counsel (OLC)
If the White House Counsel and the Attorney General regularly vie for the president’s attention,
the White House Counsel’s Office and the Office of Legal Counsel are even more frequently
competitors in legal interpretation. Though cooperative relationships have been established –
doubtless facilitated by the exchange of personnel between the offices – they tend to jockey for
advantage within an administration. (See Functions, especially item 5 on White House Counsel –
Justice Department relations, for an extended discussion of these practices.)
I doubt there was very much communication directly with the Office of Legal Counsel that
didn’t go through White House Counsel’s Office. In fact, as I’ve said many times in forums
that have talked about this issue, the real conflict between offices, inherent conflict, is
between the White House Counsel’s Office and the Office of Legal Counsel at the Justice
Department because the White House Counsel’s Office is growing and growing and is
acquiring more and more capabilities to do that kind of research and analysis that the Office
of Legal Counsel does and it does it for the President. But there is a real tendency on the
part of cabinet officers also to come to the White House Counsel’s Office and ask for advice
about legal issues. ... [M]ost of the time the Office of Legal Counsel at the Justice
Department never hears about it. It just goes on. But when the White House has a
constitutional question that’s really the point at which this becomes quite sensitive because
that is an area that the Office of Legal Counsel has traditionally handled for the White
House. But if the White House staff is large enough and they consider themselves strong
enough and smart enough, they can handle those things too and advise the President on
constitutional issues. The White House always wins over the agencies, always, because
they’re closer to the President. So they have first dibs, if you will, on any issue that comes up
to the presidential level. If there’s a constitutional question about the President’s power, if
they want, they can make that decision on their own without consulting the OLC. Whenever
you get a situation like that where some group has first opportunity and doesn’t even have to
inform the other group over time that first group is going to grow larger and larger and more
competent and eventually freeze out completely the Office of Legal Counsel. I think that[‘s]
a long-time trend that’s going to occur. (Wallison interview, pp. 21-22)
On this same point, C. Boyden Gray has stressed that the ambitions of the White House
Counsel’s Office (in Wallison’s words, above, “large enough ... strong enough ... smart enough”) can
endanger an administration. Gray advises re-establishing the OLC as an influential legal
commentator, concluding that the advantages gained from the OLC’s insights far outweigh any
disadvantages resulting from its sometimes critical stance.
Traditionally, OLC has labored under the radar screen, as an office of highly-trained legal
professionals whose responsibility is to provide authoritative legal opinions to guide the actions of
the president and executive branch agencies. Former White House Counsels of both political parties
have remarked how critical it is for the Counsel to seek OLC’s opinion on constitutional questions,
and to treat that opinion with respect and deference, even when it means telling the president that
there is no constitutional authority to do what he proposes (see, for example, comments by Cutler
and Gray on pp. 6-7 infra).
More recently, some would suggest that there has been a different twist in this relationship
during the years of the Bush administration. Rather than a contentious or wary relationship between
the two offices, they have, instead, operated often as close, cooperative allies, resulting in outcomes
that are unhelpful to both. The attacks of September 11, 2001 thrust OLC into the prime role of
providing legal analyses to the White House Counsel’s office on the extraordinary new set of
antiterrorism policies the president was contemplating. Beginning almost immediately thereafter,
OLC produced controversial legal opinions interpreting the scope of the president’s authority under
the Commander-in-Chief clause and determining the applicability of domestic statutes and
obligations under the Geneva Conventions relating to torture and domestic spying.
The central role of OLC was revealed when, in June 2004, some of these memos were leaked
to the public and disseminated widely. The spotlight on this office was, indeed, atypical and
The White House Counsel’s Office
29
unwelcome, but the greater issue is the institutional impact of an OLC that was compliant with,
rather than skeptical of, a president’s desired policies and unorthodox theories of the office. This
coordinated approach between OLC and the White House Counsel’s office resulted in considerable
damage to the professional reputations of both, but especially to OLC, because it had previously
guarded its historically uncompromising tradition jealously and with justifiable pride. Of greatest
significance, however, is that an OLC that gave the White House Counsel’s office the uncritical legal
advice it wanted to hear and carry back to the president rather than a strictly honest appraisal of the
law that outlined the applicable legal restraints on executive power acted inappropriately as an
advocate for the president’s policy goals and, in the end, did both the Counsel’s office and the
president a disservice when these policies came under withering public criticism and judicial
challenge. The concern for the politicization of OLC resulted in congressional hearings and proposed
legislation to more closely oversee its work (e.g., The OLC Reporting Act, S.3501, which would
require the Attorney General to report to Congress when the Department of Justice concludes that
the executive branch is not bound by a statute).
This recent decline in trust and reputation of OLC suggests that future White House
Counsels should be attentive to those who are appointed to serve in OLC and to the quality of
advice they receive from OLC. As a response to public criticism of OLC, a group of fourteen former
OLC attorneys who had served in the Clinton administration released a document on December 21,
2004, “Principles to Guide the Office of Legal Counsel,” to offer an explanation of the traditional
conduct of the office, and to urge a return to these principles. First among their ten guidelines was
this: “When providing legal advice to guide contemplated executive branch action, OLC should
provide an accurate and honest appraisal of applicable law, even if that advice will constrain the
administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft
merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the
President’s constitutional obligation to ensure the legality of executive action.”(See:
This
http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf.)
statement makes unambiguously clear the connection between OLC and the Counsel’s office and the
crucial, constitutional significance of accurate, unvarnished legal advice from the former to the latter.
Other Executive Branch Departments and Agencies
With the notable exception of the Justice Department, the White House Counsel typically
communicates with the executive branch departments and agencies through the General Counsels.
We used to have more or less monthly meetings of all the General Counsels of the
departments and the executive branch. It’s a little more difficult to meet with the General
Counsels of the so-called independent agencies, as you know, but we do meet even with
them on some matters.... Typically a lot of it would be show and tell, what we’re doing and
what that General Counsel thought was a problem that would go to the White House. A lot
of it has to do with the ground rules for executive privilege and turning documents over to
Congress which we don’t think should be turned over to Congress but which the
department under the thumb of Congress always wants to turn over without ever consulting
the President whose privilege it is not to provide them. (Cutler interview, p. 7)
C. Boyden Gray noted that the White House Counsel’s Office is “supposed to be the lead focal
point for all of [the General Counsels’] dealings with the White House.... They come to you. We tried
to have meetings on a regular basis but it degenerated after a while because you saw them all so much
anyway.” (Gray interview, p. 23) He added that exceptions to this rule occurred, in most departments
and agencies, only when the secretary or the agency chief executive had issues to discuss with the
White House Counsel. Occasionally, Gray said, he would speak with the deputy secretary.
Communications with the independent regulatory agencies were handled with special care and
circumspection.
The Justice Department, however, was the standard exception. The White House Counsel and
the Attorney General typically were in daily communication with one another.
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
30
ORGANIZATION AND OPERATIONS
The internal organization of the White House Counsel’s Office has changed considerably since
John Dean established the unit in the Nixon White House. Dean was the first Counsel whose duties
primarily focused on “lawyering,” and he was the first as well to seek out new legal responsibilities
and draw them into a separate office in the White House.
Since the 1970s, the size of the Office of White House Counsel has expanded from two to three
attorneys to more than 40 lawyers at times during the Clinton administration. The counsel’s office
under George W. Bush at times had more than 35 staffers (Patterson 2008, p. 67); after the
Democrats took over Congress in the 2006 elections, triggering investigations into range of issues,
the office increased in size to a total of 22 lawyers (Baker 2007).
Some former Counsels attribute this growth to the increasingly hostile Washington
environment faced by recent presidents and the mounting scrutiny of their appointees. Lloyd Cutler
recalls, for example: “In Carter’s day, when I came in, including myself, there were six lawyers.
Twenty-five years later, under [Bill] Clinton, there are probably forty lawyers, fifty lawyers. Part of
that is dealing with the attacks on the President and these enormous vetting responsibilities that
descend on the White House counsel.” (Cutler interview, p.7) Similarly, John Tuck, an aide to Chief
of Staff Howard Baker in the Reagan White House, recalled “a whole huge shadow Counsel’s
Office” that developed following the Iran-contra revelations. (In Baker interview, p. 15).
Although presidents from FDR through Richard Nixon had aides with the titles of “Special
Counsel” or “Counsel,” such staffers typically had more wide-ranging policy responsibilities. The
origin of the title “Special Counsel” can be traced back to Samuel Rosenman, the FDR speechwriter
who oversaw much domestic policy during World War II. Rosenman served on the New York state
court of last resort until FDR finally persuaded him to move to Washington to work full-time for the
President in the early 1940s. “Special Counsel” was viewed as an appropriate title for the lawyer and
former judge. Later aides with the title (for example, Clark Clifford and Charles Murphy in the
Truman administration, Theodore Sorensen under Kennedy, Harry McPherson in the Johnson White
House, and John Ehrlichman in the first year of the Nixon administration) also were lawyers and
typically participated in policy development and speechwriting. The Eisenhower White House to
some extent was an exception: Gerald Morgan, as Special Counsel, and Edward McCabe, an
Associate Special Counsel, worked on tasks quite similar to some of those in the contemporary
Counsel’s Office.
INTERNAL DIVISION OF LABOR
The Counsel’s Office has been structured internally in numerous ways. Typically, however, the
White House Counsel, as a senior presidential adviser, participates in myriad activities and issues,
many of which cannot be predicted or planned for. Indeed, the Counsel’s time often is consumed
almost completely in handling crises or unexpected demands. Thus, Reagan Counsel Peter Wallison
remembered: “At least politics and crises are the two things that you have to be sure [to handle]—
one of the reasons you want to get a staff that is capable and has the lines of authority and lines of
responsibility clear is that at some point you are going to be completely consumed with something
and that means your office has to function without you. So you need a really good and capable
deputy, which I had [in] Jay Stephens, and you need very good lawyers, and then they have to know
what their areas of responsibility are so that they don’t have to keep coming to you.” (Wallison
interview, p. 34)
Deputy Counsels
Counsels beginning with John Dean all have included at least one Deputy Counsel on their
staffs. (For occupants of this position, see Appendix Two) A Deputy Counsel routinely serves as the
The White House Counsel’s Office
31
primary overseer of workflow within the Office as well as a substitute for the Counsel. The Deputy
also may perform other tasks at the direction of the Counsel.
James Castello was the deputy who really was my person and managed the staff and was at
the second meeting I couldn’t be at if I was at the first one. [He] probably had the most to
do with the legislative agenda. He met regularly with the legislative office and made sure that
there weren’t any surprises on the Hill that the President didn’t know about or what was
going up as our core legislation didn’t have any pitfalls in it. (Mikva interview, p. 21)
Such deputies typically are charged with assuring that the Counsel sees only the highest priority
items. On personnel issues, for instance, Reagan Counsel, A.B. Culvahouse stated:
...I clearly was the principal advisor to the President ... within the White House on the
vetting process which included not only the people to be nominated by the President but
also people who would be appointed by the President even if they did not require Senate
confirmation as well as anyone who would get a White House staff badge. Even the Park
Service people who pruned the plants would come through the White House Counsel’s
Office. I never saw their files or anything, unless there was a problem. So the default rule
was if there was a problem certified as such by my deputy then it would be put on my desk.
So I saw 10 per cent of the files roughly. (Culvahouse interview, p. 4)
Likewise, C. Boyden Gray noted: “My deputy [inaudible] read far more forms than I did but if there
were problems with any high-ranking person it got kicked up to me and then I would have to deal
with it, either deal with it with the President, or deal with the cabinet officer if it was one of
his top people” (Gray interview, p. 11).
In the Clinton White House, long-time presidential confidant Bruce Lindsey served for much of
the administration as a “Deputy Counsel for Special Projects.” According to Abner Mikva, besides a
host of other activities,
... there was always a special project he was involved in either for the President or because
the President would indicate to me or [Chief of Staff] Leon [Panetta] that he wanted
somebody that could really use his clout effectively. For instance, Bruce was the point man
on the baseball strike. ... I don’t think I said Bruce, go do the baseball strike. It was known
that we needed somebody who could go in there and say the President really thinks this
ought to be done or that ought to be done, and nobody could do that like Bruce. So he
spent a lot of time on things like that. (Mikva interview, p. 17)
Throughout the George W. Bush presidency, White House counsels relied on a single deputy
counsel.
Immediate Support Staff
In addition, the Counsel’s immediate staff (often an administrative assistant and an executive
secretary) usually is responsible for assuring that external deadlines are met and internally work is
parceled out appropriately. A.B. Culvahouse, for example, reported having “three non-attorney
people who worked for me: an executive assistant, an administrative assistant and an executive
secretary. The first two spent most of their time assigning out projects and making sure the work was
done and the deadlines were observed.” (Culvahouse interview, p. 8)
Special Counsels
In recent White Houses, aides with the title of “Special Counsel” have on occasion appeared in
the Counsel’s Office. Typically, these are staffers assigned to handle short-term or “crisis” situations
that may involve congressional or other investigations, such as the Iran-contra or Whitewater affairs.
Most observers attribute the swelling of the Counsel’s Office over the course of an administration to
such crises and the heightened external scrutiny of administrations.
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
Other Work
Moreover, given the range of diverse responsibilities that have come to be lodged in the Office
of White House Counsel, some substantive division of labor usually appears. For instance, a Deputy
Counsel and one or more other members of the Office participated in judicial selection in the Carter,
Reagan, Bush, and Clinton administrations. Although presidents have always paid most attention to
nominations to the U.S. Supreme Court, recent White Houses also have focused on nominations to
the U.S. Courts of Appeals and, to a somewhat lesser extent, the U.S. District Courts.
Similarly, after the initial flurry of “vetting” for nominations and appointments at the beginning
of an administration, typically one Assistant or Associate Counsel and a Security Assistant or
Clearance Counsel (and staff) in the Office handle FBI and financial disclosure reports on nominees
to executive branch openings (see, e.g., Wallison interview, pp. 12ff). The lawyer also is responsible
for taking the confidential reports to Capitol Hill to the chairs and ranking minority members of the
appropriate Senate committees, with potentially problematic allegations flagged. In the second term
Clinton White House, a “Senior Counsel” was among those handling these responsibilities.
Other tasks that commonly have been assigned to particular lawyers in the Counsel’s Office
have included interpreting ethics legislation and additional ethics rules issued by an administration for
staffers in the White House Office and Executive Office of the President, and, on occasion, for
cabinet officials and other presidential appointees. Presidential travel and distinctions between
“official” and “political” events and funding also have received specialized scrutiny. Moreover,
Reagan Counsel A.B. Culvahouse recalled:
Someone in my office would have reviewed and approved anything that the President said,
signed or issued his name to -- from the ridiculous declaring next week national dairy goat
week which is the kind of thing that happens all the time, to pretty important things, veto
messages, signing statements. And we would not only review it for form and legality but if it
were legislation we would also have a recommendation: should the president sign, should he
veto, should he let it become law without his signature....We would approve scheduling
requests. If people were coming in to see the President, we would get a list of the attendees
and look at them for propriety and seemliness and should the President see someone who
ten years ago had been convicted of something. (Culvahouse interview, p. 8)
Still other attorneys in the Counsel’s Office focus on issues of international trade and
transportation, defense and national security policy (to support the Counsel’s role as chair of the War
Powers Committee), and government regulation. As noted earlier, another primary responsibility of
the Office is to protect presidential prerogatives, frequently on matters involving executive privilege,
the issuance of executive orders, or interpretation of legislation.
RHYTHMS OF QUADRENNIAL GOVERNANCE
Over the course of a presidential term, the activities, demands, and emphases of the Counsel’s
Office typically follow common patterns. The first year is both demanding and somewhat distinctive.
After that, the work of the Counsel’s Office -- like much of the rest of the administration -- to a
significant extent reflects the presidency’s efforts to respond to external deadlines. Other tasks arise
more routinely throughout an administration.
First Year
A major task that begins well before Inauguration Day and continues through most of the first
year is vetting for nominations and appointments. C. Boyden Gray remembered: “for the first year
that’s all you do, is read FBI reports and ABA reports. It’s not much fun. Financial disclosure
reports. It’s not much fun.” (Gray interview, p. 1)
During this early period as well, the Counsel’s Office seeks to assure that all White House
staffers and political appointees are informed of the ethics statutes, executive orders, and other
administration rules under which they must work. Gray described his approach to handling the task:
The White House Counsel’s Office
33
“My rule of thumb was: ‘If it’s fun, stop! If it feels good, stop! If you’re having fun, you’re doing
something wrong!’ That’s the way I summed up all the rules.” (Gray interview, p. 13)
At the outset, too, the Counsel’s Office needs to give White House staffers instructions on how
to keep their files. Phillip Brady recalled that in the Bush administration, the Counsel and Deputy
Counsel “... tried to be very careful to ensure all new employees were given a Counsel’s Office memo
that would articulate what presidential documents are and what needed to be preserved and that sort
of thing.” (Brady interview, p. 9)
The initial weeks and months of a new administration also bring numerous other demands.
Chief among them: the president’s budget must be submitted by February 2nd, the economic report is
due at about the same time, and the legislative agenda, congressional messages, and bills must be
drafted and sent to Congress. The Counsel’s Office is involved in all of these activities.
Annual Cycles
Especially important annual cycles are the preparation of the president’s budget and the drafting
of the State of the Union address and the Economic Report of the President. Although the Counsel’s
Office is not the central player in any of these, it does perform the pivotal role of ensuring that the
processes and the officials involved act in accordance with prevailing legal and ethical guidelines.
Electoral Cycles
As the mid-term congressional elections or a presidential re-election campaign approaches, the
Counsel’s Office faces other tasks. The Office may well be besieged with requests for advice from
other White House staffers and from political appointees throughout the executive branch about the
sorts of partisan and electoral activities they and their aides are legally permitted to engage in. In most
administrations, the Counsel and staff try to anticipate such requests and related problems by sending
out written guidelines and holding information sessions.
Clinton Counsel Abner Mikva remembered the memo he wrote to White House staffers and
other political appointees for the 1996 presidential campaign:
The idea came from the fact that that kind of the same memo had been written every four
years since anybody could remember. I think we even had a copy of the memo that not Gray
but one of the predecessors had sent out—maybe Fielding; it may have been Fielding—sent
out during his [tenure]. (Mikva interview, p. 17)
Moreover, as elections approach,
...the President becomes more involved in direct politics which raises questions about ... how
much of his time would be devoted to it, who pays for it, all those things. That becomes
much more important every two years. Whether the President is running for election or not,
usually he’s out doing things, raising funds or otherwise supporting candidates which require
you to make these kinds of allocations in the best possible way to avoid charges of various
kinds. (Wallison interview, pp. 32-33)
Mikva noted that in retrospect, “None of us saw fit to raise a warning flag for the President.”
I had seen what goes on in state politics. I’d been a state legislator for ten years. I know
governors in Illinois pick up the phone when they’re sitting in the governor’s office and lean
on people to give money to their campaign and the party. It’s just a fact of life and I suspect
it goes on in most states. I’m sure it went on in Arkansas. I think this government came in to
the White House not very sensitive to the fact that the White House and the federal
government is a different place. So I should have warned the President. (Mikva interview, p.
18)
Indeed, Lloyd Cutler has remarked,
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
When a president is up for re-election, there are all sorts of temptations, things a president
wants to do that may be legally questionable but that he wants to do to get re-elected. For a
White House Counsel, those are the hardest calls to make. You should tell a White House
Counsel to leave before that last year of a president’s first term. (Cutler, Duke panel
transcript, p.6)
The presidential electoral cycle also can influence submission of judicial nominations to the
Senate. Former Deputy Counsel Phillip Brady noted: “There’s a political year consideration, too, as
you get closer and closer to presidential elections the Senate becomes less and less receptive to
confirming nominees for lifetime appointments depending on what happens in the next presidential
election.” (Brady interview, p. 4)
Final Year
The last year of a presidency can be “dangerous.” (Culvahouse, Duke panel transcript, p. 5) This
is a time when requests for pardons, commutations, executive orders, and other presidential actions
may be likely to reach fever pitch. It also is a time when presidents may be especially responsive to
those who have supported and worked with them for numerous years.
More Regular Tasks
Many of the other tasks handled by the Counsel’s Office are performed throughout an
administration. Reagan Counsel A.B. Culvahouse recalled, for example, this included the judicial
selection committee, which met “every two weeks and more frequently if—basically the idea was to
get people’s nominations up as soon as possible so if the FBI was able to process background checks
and all the materials were in we sometimes would meet every week.” (Culvahouse interview, pp. 8-9)
Executive orders also need to be drafted throughout an administration.
In contrast, Culvahouse continued:
Congress tends to work in fits and starts. ... The legislative agenda can be heavy or it can be
light. There were also Statements of Administration policy that we would review. If it was a
statement of Justice Department policy, we would not review it. Sometimes we would say,
“This should not come out of the White House; the Justice Department or the State
Department should issue this.” Sometimes we would be involved in deciding who ought to
comment on the bill, and who ought to testify. If it was going to be a Statement of
Administration policy, which is in effect attributed to the President, we would look at those
carefully. Those would be in effect a letter that would say here’s what the Administration
thinks about S-332, the omnibus such and such act. (Culvahouse interview, p. 9)
Other legislative decisions to which the Counsel’s Office responds are more routine: There
was someone who handled the disease of the week. Congress passes all of these little bills all
the time establishing that cystic fibrosis week will be such and such and a presidential
proclamation is required. So somebody has to read what Congress said and then prepare the
proclamation. It’s called the disease of the week. When there was all this talk about testing
urine and blood for drugs, I had someone handle that, and he was our fluids man. It was
pretty informal but yet I knew what each of the people in the Office would be handling. So I
could always bring that person in—. (Wallison interview, p. 16)
In addition, throughout an administration, new individuals must be nominated for and
appointed to positions throughout the executive branch. After the first year, “The nomination
process was fairly continuous... So every week there would be nominations to be processed, people
to be vetted, ethics agreements to be looked at” (Wallison interview, p. 9). Informing new hires about
ethics regulations also had to continue.
Meanwhile, questions about presidential travel continually arise. In the Reagan White House,
for example, “Alan Raul ... was in charge of presidential travel. That was a big and difficult issue
because of what had to be paid for by private funds, by political funds or by government funds. So
The White House Counsel’s Office
35
they were constantly, the people in the political office and in the travel office, they were constantly
calling Alan for advice on that subject.” (Wallison interview, p. 31)
Crises / Scandals / Unexpected Events
Counsels, of course, find themselves (and their staffs) handling unexpected situations and, on
occasion, crises, at least as seen from the administration’s perspective. As chair of the War Powers
Committee, the Counsel has responsibilities whenever U.S. troops are (or may become) involved in
hostilities.
Lloyd Cutler, who served as Counsel for both Presidents Jimmy Carter and Bill Clinton,
observed that the job has become more driven by scandal and congressional efforts to probe more
deeply into administrations:
We were doing executive privilege in the Carter days; we were doing it in the Clinton days.
We had demands from congressional committees for White House documents and agency
documents; drafts of legal opinions, for example, were so much more pervasive. Mostly, it’s
the difference that when I worked for Carter while we did have the Billy Carter problem and
a few others, Hamilton Jordan’s alleged drug violations -- which turned out to be entirely
untrue, while we had a couple of those, most of what I did was substantive. ... In Clinton’s
time I had the same understanding that I could be in on all these things but I had to put in
so much of my own daily effort, and my staff did, on the investigations of the President,
Whitewater, et cetera, that I had no time. ... I would say working for Carter -- which was a
year and a half -- not more than 20 per cent [of the Counsel’s work] was what I call playing
defense. Under Clinton it was closer to 80 per cent. (Cutler interview, p. 8)
A scandal of one sort or another also is likely to occur at some point during an administration.
In the words of Peter Wallison:
...you can always count on ... some kind of big scandal. It just is like that; something is going
to happen. And when I went in to that office I assumed there was going to be a blizzard.
What I didn’t realize was that there would be a hundred-year snow in the form of IranContra. You don’t know those things. I knew there would be something that was really
going to take my time and for the last six months I was there it was virtually all Iran-Contra.
I just couldn’t get away from it. (Wallison interview, p. 33)
THE COUNSEL’S DAILY SCHEDULE
Although there certainly is no “typical day” for a White House Counsel and the larger Office,
some daily routines can be identified. For the Counsel, most days involve a stream of meetings,
including meetings of the White House senior staff, meetings with the Counsel staff, participation in
discussions of policy initiatives and major speeches, and weekly or bi-weekly sessions on judicial
nominations. President Bush’s Counsel, C. Boyden Gray, pithily summarized the job as “Meetings all
day long. Meetings, meetings, meetings” (Gray interview, p. 25). When surprises or crises occur, of
course, the Counsel is typically on call.
Peter Wallison, for example, remembers:
I would usually arrive at the White House about seven in the morning. The staff meeting was
at eight; that is, the senior staff meeting was at eight. So I would come in; I’d read the
newspapers.... to see if there was anything in the newspapers, anything I hadn’t already heard
on the radio coming in in the morning or before I went to bed the night before. ... In most
cases, I would then go to the staff meeting at eight o’clock. Sometimes I would go down to
[Chief of Staff Donald] Regan’s office in advance of the staff meeting and I would raise a
subject that I saw in the papers or heard about, something like that, that I thought he might
want to talk about at the staff meeting or that he might not want to talk about at the staff
meeting or he might have to have an answer if the question comes up at the staff meeting
about what I thought. ... I would get ten, fifteen minutes with him about something before
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
the staff meeting started. That was fairly rare. Then we’d go in the staff meeting. ... Then
after the staff meeting ... every morning I would have my own staff meeting. ... And I would
review with them the things that came up at the senior staff meeting that would relate to the
things that they were doing. So they would each get directions about what were the issues
the White House was dealing with today and what they were going to hear from their clients.
(Wallison interview, pp. 30-31)
A. B. Culvahouse’s recollections are similar:
We’d have a senior staff meeting which was twenty-five people in the Roosevelt Room every
morning at 7:30. Then we’d have a meeting in [Chief of Staff Howard] Baker’s office that
was never on the schedule but which everyone knew about of six people. Howard [Baker],
[Deputy Chief of Staff Kenneth] Duberstein, [Press Secretary Marlin] Fitzwater, [National
Security Assistant Colin] Powell, me, [Assistant to the President for Communications
Thomas] Griscom and Dan Crippen. ...It was basically referred to as the “real meeting.”
...[The first meeting was about] what was going to happen, what was coming up, sort of
broadly defined. But it was not a secure meeting because if you talked about anything really
interesting it would find its way to the press. (Culvahouse interview, pp. 25-26; cf. interview
with Baker, p. 16)
Culvahouse also had a daily staff meeting “... at least early on, during the Iran-Contra investigations,
and then I would meet with the other staff at least twice a week.” (Culvahouse interview, p. 27)
After meeting with the Counsel staff, in Peter Wallison’s words, the Counsel “... start[s] to
handle the crises of the day, whatever they happened to be. Mostly that’s what you did. William
French Smith was once asked what it was like to be Attorney General and he said it’s one damn thing
after another. And that’s basically what it’s like to be White House counsel; it’s one damn thing after
another.” (Wallison interview, p. 31)
Often, at least for contemporary Counsels, the days and weeks can be long ones. Some recall
six-day weeks and weekdays of more than twelve hours, especially when crises arise. Taking over in
the aftermath of the Iran-contra revelations, A.B. Culvahouse reported:
I’d try to get in by 7:15 so I could read the President’s intelligence daily brief and get a
briefing particularly on the Iran-Contra investigations, anything that had changed since the
night before. I tended to leave probably 10-ish. Then I’d work like from 8:00 to 6:00 on
Saturday. I worked every Sunday for the first while and then after about six months I tried to
keep Sundays free for my family ... Of course you have the secure telephone at home which
quickly became the blankity-blank White House phone because it would ring at all hours of
the day and night. It had a unique ring. (Culvahouse interview, p. 27)
In the scandal-plagued Clinton administration, “being on Clinton’s legal team, with its 18-hour
workdays and constant pressure, burned people out. [Special Counsel Jane] Sherburne recalls
working in her windowless office day after day, never seeing daylight.” (Oliphant, 2000, p. 5)
Clinton’s third Counsel, Abner Mikva, commented on the physical demands:
I came in at sixty-nine and I was actually seventy by the time I left and the physical schedule
was just more than I could handle. I would come in at six-thirty in the morning and leave at
nine at night. I was the first one out of the White House. They were all still doing scheduling
meetings and all kinds of things. I’d never served a president younger than I was and I
realized that maybe if I’d had the personal relationship with him beforehand, which I didn’t,
maybe I could have played the nice graybeard that would be called in once in a while to
consult. But to run the kind of schedule that the rest of the senior staff was running and that
he had every reason to expect out of a White House Counsel was way beyond me. I walked
out totally exhausted. It turned out I had pneumonia. I didn’t realize that until after I left.
(Mikva interview, pp. 22-23)
With some understatement, Jonathan Turley, a George Washington University law professor,
remarked: “‘This was not a job to envy. Every[one] in the Clinton administration seemed to age
before our eyes.’“ (Oliphant, 2000, p. 4)
The White House Counsel’s Office
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Under less harried circumstances in the Reagan administration, Peter Wallison recalled:
I didn’t make a habit of it, I don’t think, of being in on Saturdays. When Iran-Contra started,
I did; I would go in Saturdays and Sundays. But before that it was a pretty easy job actually
except for the constant pressures. It didn’t involve my having to work very late most of the
time. As a lawyer I was used to working twelve hours a day. I would always work twelve
hours a day no matter when I got to the office. A tough day was sixteen hours but twelve
hours was a pretty ordinary day. I doubt I left before seven many times; I probably left at
eight. I don’t have a distinct recollection of this but I do know that I wasn’t seeing my family
all that much during this time. (Wallison interview, p. 43)
The more striking memory may be the constant pressure. Wallison also observed:
In the White House you never get away from the tension and the pressure of the job. You
can go home but you turn on the television or you listen to the radio or you look at a
newspaper and there are things that you are working on or you know about or you know are
coming at you that are in those media. So, even though you don’t even recognize it, you’re
constantly at work and constantly under pressure. It can be extremely wearing for that
reason. As I say, you don’t recognize it. You don’t know that you are always in front of an
audience. You don’t realize that but you are because your mind is constantly occupied with
what is going on in your office. ... When you’re in the White House you’ve got all the
opponents that there are, in effect; all the political opponents are at you all the time. When
you’re in the Treasury Department or even when you’re working for the Vice President—I
had left that out—the pressure is much less. ... Everyone, however, has an interest in what
the White House is doing so you have a legion of opponents. (Wallison interview, pp. 35-36)
Nonetheless, C. Boyden Gray has commented that, despite the “never-ending” pressure, “...
some of it is unnecessary. I can say that looking back on it; perhaps I’m not sure I felt that way at the
time. There are meetings that you don’t have to attend, stuff you don’t have to do. You have to
discipline yourself just to walk away from it and go to the gym and work out. You can find time. I
found time.” (Gray interview, p. 25) And, Mikva recalled, serving as Counsel was “exciting. You’re at
the point of some very important decisions. Whether you’re making them or not, you’re involved in
the decisional process. You’re dealing with interesting people, interesting situations. There just was
not a single boring moment that I had.” (Mikva interview, p. 23)
TURNOVER: COUNSEL AND DEPUTY COUNSEL
Given the demands on the Counsel as well as the often unforgiving nature of Washington, it is
scarcely surprising that relatively few Counsels stay in the position for more than two years. Only
Philip Buchen (Ford) and C. Boyden Gray (Bush) stayed through their administrations. Fred Fielding
worked even longer as Counsel to Ronald Reagan, serving from January 1981 until February 1986.
(See Appendix Two)
In recent presidencies, Counsels have departed for a variety of reasons. Some -- such as John
Dean -- became directly involved in administration scandals. Others -- J. Fred Buzhardt, Peter
Wallison -- departed after the president or chief of staff who brought them to the White House was
forced out. Still other Counsels joined the White House staff explicitly on a temporary basis, to help
handle political or policy crises. In Democratic administrations, such figures have tended to be well
respected, “old Washington hands” themselves (like Lloyd Cutler, Abner Mikva, and Charles Ruff).
Fred Fielding was the Republican counterpart in the George W. Bush administration. In the Reagan
administration, by contrast, the new Counsel, A.B. Culvahouse, was a trusted associate of the
incoming Chief of Staff, Howard Baker, who himself fit this same profile.
When a Counsel has left the White House, in virtually all cases, his deputies have departed
within several months. The only exception has been Clinton aide Bruce Lindsey, who was lodged in
the Counsel’s Office (typically as a “Deputy Counsel to the President for Special Projects”) from
1993 through 2000, working under multiple Counsels (and always with a second Deputy Counsel).
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In addition, there has been somewhat higher turnover among deputies than among Counsels.
Typically, Deputy Counsels leave to pursue other opportunities both in and outside the
administration. Over the period from 1971 through 2008, no Deputy Counsel has succeeded a
Counsel, although at least one (Cheryl Mills) turned down the job when it was offered to her.
Clinton’s sixth Counsel, Beth Nolan, served as an Associate Counsel in the first term. Deputy
Counsels Cheryl Mills and William P. Marshall served as Associate Counsels (Mills under Nussbaum,
Cutler, Mikva, and Quinn, and Marshall under Ruff) before being named Deputies.
LESSONS LEARNED
Advice from former Counsels can be helpful in trying to avoid some of the pitfalls from the
past as well as in preparing for the rigors of the job prior to entering it. The following points are
offered in that spirit, and have been culled from comments of past Counsels, published articles and
general observation:
NAME THE COUNSEL AS EARLY AS POSSIBLE.
The president-elect (or, even better, the presidential nominee) should appoint the Counsel at
the earliest possible time, since this position is key to shepherding the nomination and confirmation
processes for all other presidential appointments.
According to C. Boyden Gray:
I can’t emphasize enough the difficulty of absorbing all you have to absorb. It is bewildering.
It is absolutely bewildering. And if people don’t understand it they’re going to get into
trouble again and again and again. (Gray interview, p. 7)
Bush asked me to go to work for him two weeks before he was elected and he said, “I
should have asked you two months ago.” The White House Counsel’s Office -- you asked
[about] the people who shovel the most papers around and deliver them. The volume of
paper that goes through the White House Counsel’s Office is ten times the other offices
combined. ... Because of all the forms and the other nomination papers. (Gray interview, p.
8)
The day a president is elected people should be shot right into the FBI the very next day.
...You should start people filling out those forms, I think, before the election. Certainly, the
day of the election there ought to be 100 people doing nothing but filling out those forms.
(Gray interview, p. 10).
Bernard Nussbaum, the first of six Counsels for President Clinton, echoed these sentiments
about the need for an early start.
I was offered the job only a week before it was announced on January 6th. I was offered it in
late December, when I went to Little Rock. I was appointed very late in the process. A
president-elect needs to start by November, by the day after the election. He [the Counsel]
needs to hire staff, hire secretaries - some were detailed over from the departments. And that
was not a good thing. Detailing hurt the president. (Nussbaum interview, p. 1)
PREPARE TO ENTER AN EMPTY OFFICE
Most former Counsels have remarked about the lack of any institutional memory. There are a
few folders, letters, and memos that have been left behind on such matters as war powers and
presidential disability and succession, and A.B. Culvahouse talked about twenty- to twenty-five
binders that he left for C. Boyden Gray as the next incoming Counsel (Culvahouse interview, p. 7).
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39
Generally, however, there is little paper in the Office when a new Counsel enters. Bernard Nussbaum
recalled:
When you walk into the White House at the beginning of an administration, it is empty. It is
an amazing thing. All of the files are gone. Even the secretaries are gone (except one - Linda
Tripp was my secretary for a year). Nobody knew what to expect. The Democrats were
stunned. This was the first time in a generation (since 1968) that they were in power (with
the exception of Carter). Nobody knows anything. But the minute you walk into the office,
the phones are ringing. It’s as if the ten biggest litigation cases in your life are going on
simultaneously. I got a call from the State Department on the first day - and there were no
lawyers over there, either. I went to the office straight from the inauguration, and went to
work right away, doing executive orders on that first day. (Nussbaum interview, p. 1)
Gray remembers that the only materials left behind when he took over were “Folders that lay
out some of the statutory - the [inaudible] [Anti-]Deficiency Act, the Ethics in Government Act, the
Hatch Act, the Presidential Records Act, all of these.” (Gray interview, p. 6)
Clearly, this is a matter that future Counsels may wish to modify. As Lloyd Cutler said, “This is
an area [lack of institutional memory] where there could be a very substantial improvement” (Cutler
interview, p.22)4
MEET WITH THE OUTGOING COUNSEL
Especially because of the lack of materials available to the new counsel, many former counsels
have discussed the importance of meeting with their predecessor prior to taking over. Noted C.
Boyden Gray:
I don’t think Bernie Nussbaum spent as much as an hour with me. Vince Foster spent a little
more time with John Schmitz [the deputy counsel]. But I spent maybe ten or fifteen hours
with A.B. Culvahouse. I had been in the White House already for eight years and I still felt I
didn’t understand what I was doing…[I]t is enormously difficult to come in cold and
understand all the statutes that apply…all the rules about travel…It’s just very, very difficult.
(Gray interview, p. 5)
EXPECT A STEEP LEARNING CURVE, THE UNPREDICTABILITY OF
EVENTS, AND DEADLINES DICTATED BY THE MEDIA
Because the Counsel’s responsibilities cover such broad territory, many have commented on the
simply overwhelming nature of the materials that need to be mastered. The job entails a steep
learning curve at the beginning, knowing where the “land mines” are, being sufficiently flexible to be
able to switch gears immediately and respond to breaking crises, and working with incomplete
information, especially when there is a need for a decision by the evening news. As Clinton Counsel
Charles Ruff observed, “It’s a job for which no training or experience exists for the crosscurrents of
legal, political and constitutional issues.” (Oliphant, 2000, p. 4)
In particular,
4
Until 1999, the National Security Council (NSC) staff retained records from one presidential administration to another,
effectively building a “continuing archive on every pending [foreign policy] problem” (Cutler interview, p. 22) from the
Truman administration onward. When court rulings during the Clinton administration declared that the NSC was
subject to the Presidential Records Act, NSC staffers began copying the documents that they deemed essential to ongoing governance. In October 2000, as this memo was being finalized, the files were still being duplicated and the
National Archives and Records Administration (NARA) was still working with the National Security Council staff to
determine where the original files would be deposited. Members of the White House Counsel’s office, therefore, may
wish to consult with the NSC staff to determine the status of this process. They should also note that NARA makes
provision for expedited processing of documents requested by White House policy-makers.
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
The incoming White House counsel should interview previous White House counsel and be
thoroughly immersed on all of the land mines that he or she is going to face…[The land
mines are] all over the place. They’re all over the place. (Gray interview, p. 21)
At the same time, one must always be prepared for the unexpected. Clinton Counsel Abner
Mikva remarked: “there are those kinds of crises and the crisis management of walking in every
morning, no matter what you have on your list of things to do, that isn’t what you’re going to spend
your time on because something happens in between.” (Mikva interview, p. 10)
And, always, past occupants urge, the Counsel has to pay attention to the news media.
You better worry about the media, because the media sets the agenda…Your day starts with
The Wall Street Journal, The New York Times, Washington Post. They set the agenda. You may
have four or five things on your list to do for the day. You probably won’t get to any of
them. (Nussbaum, Duke panel transcript, p. 5)
The demands of the media can be a special problem for those coming to the White House from
private practice.
It’s this terrible dilemma. If you’re a lawyer, you want to have all the facts. And usually you
want to have all the facts before you give advice to someone about what to do about it. In
the White House, you have to act on the basis of what information you can get some time
before the six o’clock news because if you don’t have a White House position and the news
is “the White House is divided and can’t make up its mind,” some opposition senator will go
on the air and use up the space and tell you what was done wrong. So, you have to adjust to
that; you have to operate on the basis of hunch and experience. (Cutler interview, pp. 12-13)
As Counsel, Cutler also said, “You’re acting on the basis of not enough information and there’s
always this gnawing fear that you’ve gotten something wrong or you’ve said something you shouldn’t
have said.” (Cutler interview, p. 31)
KNOW WHERE TO GO FOR INFORMATION
Having ready access to information, and knowing how and where to get it, as well as who has it,
are clearly the most critical practical components of the job. A. B. Culvahouse, Lloyd Cutler and C.
Boyden Gray emphasize the importance for a Counsel to “make sure you’re part of the process. You
cannot recognize the problems or deal with the problems unless you see them in their inception.”
(Culvahouse in Quade, 1988, p. 37). Cutler was quoted above with similar advice about recognizing
the legal aspects of issues discussed in meetings (Cutler interview, p. 4), and Gray, also, noted the
need to know which meetings to attend (Gray interview, p. 29).
Speaking anonymously, one Deputy Counsel offered the following advice:
[Y]ou will get every possible issue thrown at you, and there is no way you could have
technical, legal expertise on all of them. Thus, the key quality to doing the Counsel’s job well
is to establish good personal relations with people throughout government, and to know
where to go and whom to ask when you need specific information to do your job effectively.
MAINTAIN GOOD RELATIONS WITH THE OFFICE OF LEGAL
COUNSEL IN THE DEPARTMENT OF JUSTICE
All Counsels agree it is essential to maintain good relations with the Office of Legal Counsel in
the Department of Justice. They emphasize how critical it is to know when to turn to OLC for legal
advice. C. Boyden Gray, for example, maintains that, as Counsel, “you’re best able to avoid the land
mines if... you restore the rightful place of the Office of Legal Counsel. When in doubt ask them, and
they’ll tell you where the land mines are.” (Gray interview, p. 21)
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DIVIDE THE COUNSEL’S OFFICE WHEN SCANDALS ARISE
When scandals arise, previous Counsels have walled off or isolated “scandal management” from
the routine office tasks. Typically, “Special Counsels” have been appointed to work exclusively on
the crisis, along with additional staff members that are specifically tasked to that purpose. A.B.
Culvahouse recalled, for example, that Reagan Chief of Staff Howard Baker “told me to focus on
Iran-contra and get a separate staff up and running to handle that and let my deputy handle the more
routine stuff.” (Culvahouse interview, p. 25) Clinton Chief of Staff Leon Panetta explained the value
of separating handling scandals from other tasks:
What you don’t want to do is consume the general counsel’s operation by that scandal. What
you want to do is make sure that that’s pulled out of the normal operation so that there is a
separate focus on that. So you can basically say that crisis is being handled, these are people
that are involved with it and it doesn’t tie up the rest of the operation. (Panetta interview, p.
38)
MONITOR THE PRESIDENT CLOSELY
IN THE LAST YEAR OF THE TERM
A.B. Culvahouse has cautioned Counsels to beware of a president in his last year in office.
“Never forget that your most important contribution is what you don’t let happen in the last year of a
presidency. That last year is a dangerous time.” (Culvahouse, Duke panel transcript, p. 5, emphasis in
original) In a similar vein, Lloyd Cutler has said,
When a president is up for re-election, there are all sorts of temptations, things a president
wants to do that may be legally questionable but that he wants to do to get re-elected. For a
White House Counsel, those are the hardest calls to make. You should tell a White House
Counsel to leave before that last year of a president’s first term. (Cutler, Duke panel
transcript, p.6)
BE AWARE OF SHARP PUBLIC CRITICISM OF THE
WHITE HOUSE COUNSEL’S OFFICE
The Office of White House Counsel is under attack these days -- for some of its actions during
the Clinton administration, and even for its very existence. The title alone of a Duke University
conference panel, “Should the White House Counsel’s Office be Abolished?,” dramatically
underscores the highly controversial nature of this office. A former competitor of the Counsel’s
Office, Carter Attorney General Benjamin Civiletti elaborated: “The White House Counsel’s Office
is an abomination, structurally inefficient, lots of potential for conflict because of its political nature.”
(Civiletti, Duke panel transcript, p.1)
UNDERSTAND THE IMPACT OF THE LOSS OF
GOVERNMENT ATTORNEY-CLIENT PRIVILEGE
The existing skepticism surrounding the Counsel’s Office has been further heightened by the
dark implications many observers see from the loss of government attorney-client privilege, as a
consequence of unsuccessful litigation by the Clinton administration. There is now even less reason
for a president to use a White House Counsel for strictly legal purposes. Rather, presidents seem
likely to turn to private counsel more often, especially when legal matters are unclear as to whether
they involve “the president” or “the presidency.” All of the Counsels interviewed for this project
reacted strongly to these court decisions: some decried the choice to litigate matters of privilege at all
(Gray), rather than to seek accommodation with the source of the demand for testimony and
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THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
documents, while others (such as Cutler, Nussbaum, Mikva) lamented the very real and damaging
consequences of these decisions. Abner Mikva concluded:
[The attorney-client rulings] make it almost impossible for a president to function the way
we want a president to function. It’s a very sad legacy. But, I think they had to litigate. They
had no option. (Oliphant, 2000, p. 3)
Clinton Counsel Charles Ruff elaborated:
There’s always a choice [whether to litigate the president’s privileges]. You can acquiesce. We
ended up deciding that the principles involved were sufficiently important to the institution
that they needed to be pursued. (Oliphant, 2000, p. 6)
The fallout from these rulings on presidential privilege and, more generally, from the hostile and
polarized political atmosphere caused by the independent counsel statute, has been considerable.
Mikva, for example, recalls that he took no notes, kept nothing in writing.
We just never put anything in writing. At least I did[n’t]. All the habits I learned as a good
litigator where I took detailed notes about what was going on I threw out the window.
(Mikva interview, p. 1)
One of his successors, Charles Ruff, operated the Office in the same way. “We did not take
notes. We were subject to subpoena. People were very careful not to put things down in writing.”
(Oliphant, 2000, p. 2)
Future White House Counsels should study carefully the body of court opinions on
presidential privileges. The District Court and D.C. Circuit Court of Appeals rulings in the
matter of Bruce Lindsey’s grand jury testimony are the key ones that deal with government
attorney-client privilege and executive privilege. [In re Sealed Case (Bruce R. Lindsey) (Grand
Jury Testimony), 5 F. Supp. 2d, 21 (D.D.C. 1998); In re: Bruce Lindsey (Grand Jury
Testimony), 158 F. 3d 1263 (D.C. Cir. 1998)]
NOTE THE CONTINUING SIGNIFICANCE OF ISSUES OF
EXECUTIVE PRIVILEGE AND OTHER PRESIDENTIAL
PREROGATIVES
Presidents Ronald Reagan and Bill Clinton took diametrically opposed approaches to executive
privilege: Reagan waived privilege and submitted his diaries and thousands of White House
documents to the Iran-contra investigators, while Clinton vigorously asserted his privileges and chose
to litigate them in court. Yet, despite their contrasting strategies, both Reagan and Clinton were
sharply criticized for damaging this constitutional power for future presidents. White House
Counsels view with enormous care their responsibility to protect and guard a president’s
constitutional prerogatives, such as executive privilege.
RECOGNIZE THE DIFFICULT POLITICAL ENVIRONMENT
FOR THE JUDICIAL APPOINTMENT PROCESS
One final word of caution for the next Counsel is a warning about how poisoned the process
for judicial appointments has become. Speculation abounds that there may be anywhere from one to
four Supreme Court vacancies sometime during the next president’s term of office, vacancies that
will fall directly into the Counsel’s lap. The experience of getting federal judicial nominees through
the confirmation process during the Clinton presidency and at times the W. Bush administration was
a torturous one, with historic delays and much ill will. There does not appear to be reason for
optimism that this confrontational relationship will change in the near future, especially if conditions
of divided government persist.
The White House Counsel’s Office
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REFERENCES
WHITE HOUSE INTERVIEW PROGRAM. INTERVIEWS WITH:
Baker, Howard, with John Tuck. Martha Joynt Kumar. Washington, D.C. 12 November 1999.
Brady, Phillip. Martha Joynt Kumar. Washington, D.C. 17 August 1999.
Culvahouse, A.B. Martha Joynt Kumar. Washington, D.C. 15 September 1999.
Cutler, Lloyd C. Martha Joynt Kumar with Nancy Kassop. Washington, D.C. 8 July 1999.
Gray, C. Boyden. Martha Joynt Kumar with Nancy Kassop. Washington, D.C. 4 October 1999.
Mikva, Abner. Martha Joynt Kumar with Terry Sullivan. Chicago, Ill. 26 April 2000.
Nussbaum, Bernard C. Martha Joynt Kumar with Nancy Kassop. 9 November 1999.
Panetta, Leon. Martha Joynt Kumar. Monterey Bay, CA. 4 May 2000.
Wallison, Peter. Martha Joynt Kumar. Washington, D.C. 27 January 2000.
COURT CASES
AHA v. NARA (No. 01-2447, October 1, 2007).
Cheney et al. v. U.S. District Court, 542 U.S. 367 [2004]
Citizens for Responsibility and Ethics in Washington et al. v. Richard Cheney et al. (No. 2008-1548).
Clinton v. Jones, 520 U.S. 681, 1997.
Committee on the Judiciary of the U.S. House of Representatives v. Miers et al., No. 2008-0864, July 31, 2008.
Committee on the Judiciary of the U.S. House of Representatives v. Miers et al., No. 08-5357, October 6, 2008.
In re Sealed Case (Bruce R. Lindsey) (Grand Jury Testimony), 5 F. Supp. 2d, 21 (D.D.C. 1998).
In re: Bruce Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998).
http://laws/findlaw.com/dc/983060d.html
Nixon v. Fitzgerald, 457 U.S. 731, 1982.
U.S. v. Nixon, 418 U.S. 684, 1974.
U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 [D. Mass. 1950].
Walker v. Cheney, 230 F. Supp.2d 51 [D.D.C. 2002].
OTHER REFERENCES
Baker, Peter. “Besieged White House Reinforces Counsel’s Office.” Washington Post June 9, 2007, p.
A4.
Baker, Peter. "Privilege at Stake With Nominees: Bush Aims to Reassert Presidential Power in
Debate Over Roberts, Bolton." Washington Post, August 2, 2005, p. A6
Bendavid, Naftali. “Keeping the President’s Counsel.” Legal Times (14 March 1994): 1, 20-21.
The BLT: The Blog of Legal Times. "White House Vows Cooperation with Prosecutor Investigating
U.S. Attorney Firings." October 1, 2008. http://legaltimes.typepad.com/blt/2008/10/whitehouse-vow.html.
Civiletti, Benjamin. Comments. Duke University Law School. “Should the White House Counsel’s
Office Be Abolished?” Panel at conference on The Constitution under Clinton: A Critical
Assessment. 23-25 September 1999.
44
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
Culvahouse, A.B. Comments. Duke University Law School. “Should the White House Counsel’s
Office Be Abolished?” Panel at conference on The Constitution under Clinton: A Critical
Assessment. 23-25 September 1999.
Cutler, Lloyd. Comments. Duke University Law School. “Should the White House Counsel’s Office
Be Abolished?” Panel at conference on The Constitution under Clinton: A Critical Assessment.
23-25 September 1999.
Executive Order 12667, 54 FR 3403 (January 16, 1989).
Executive Order 13233 - "Further Implementation of the Presidential Records Act," 66 F.R. 56025
(November 1, 2001)
Froomkin, Dan. "Contempt for the Law." Washington Post January 17, 2008.
Froomkin, Dan. “Waiting For Rove." Washington Post, August 1, 2008.
Froomkin, Dan. "Waxman Ain't Buying." Washington Post, January 18, 2008.
Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, Garry Zuk, and Sara Schiavoni. “W. Bush:
Remaking the Judiciary: Like Father Like Son?” Judicature 86 (May-June 2003): 282-309.
Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Sara Schiavoni. “W. Bush’s Judiciary: First
Term Record.” Judicature 88 (May-June 2005): 244-75.
Goldman, Sheldon, Elliot Slotnick, Gerard Gryski, and Sara Schiavoni. “W. Bush’s Judiciary during
the 109th Congress: Picking Judges in a Time of Turmoil.” Judicature 90 (May-June 2007); 252-83.
Goldsmith, Jack. The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: W.W.
Norton, 2007.
Lee, Christopher. "Cheney is Told to Keep Official Records." Washington Post (September 21, 2008):
A5.
Marcus, Ruth. “Court Rejects Privilege Claim.” Washington Post (July 28, 1998): A1.
Marcus, Ruth and Ann Devroy. “Nussbaum Quits White House Post.” Washington Post (March 6,
1994): A1.
Morgan, Gerald and Edward McCabe to Philip Buchen. 2 October 1974. Memo, “Functions to be
Performed by the Office of Counsel to the President.” “Office Organization and Functions (1).”
Buchen Counsel’s Office Files, Box 100. Ford Presidential Library.
Nussbaum, Bernard. Comments. Duke University Law School. “Should the White House Counsel’s
Office Be Abolished?” Panel at conference on The Constitution under Clinton: A Critical
Assessment. 23-25 September 1999.
Oliphant, Jim. “Losing Privilege: A Scandal-Scarred Legacy for Future Presidents: White House
Counsel Without a Shield.” Legal Times (March 10, 2000): 1-7.
http://www.lawnewsnetwork.com/stories/A18273-2000Mar9.html 3 April 2000.
Patterson, Bradley H. “The ‘Just-Us’ Department: The Counsel to the President.” Chapter 6, To Serve
the President: Continuity and Innovation in the White House Staff, pp. 66-81.Washington, D.C.:
Brookings Institution, 2008.
The Presidential Records Act (PRA) of 1978, 44 U.S.C. ß2201-2207
<http://www.archives.gov/about/laws/index.html#presrec>
"Principles to Guide the Office of Legal Counsel," December 21, 2004.
http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf.)
Quade, Vicki. “The President Is His Only Client.” Barrister 15 (Winter/Spring 1988): 4-7, 34-37.
Strobel, Warren P. “Clinton Court Losses Seen Weakening ‘Imperial Presidency.’“ Washington Times
(August 5, 1998): 10.
The White House Counsel’s Office
45
APPENDICES
APPENDIX ONE
FUNCTIONS OF THE OFFICE OF WHITE HOUSE COUNSEL
i)
Advise on the Exercise of Presidential Powers and Defend the President’s Constitutional Prerogatives
review (and, in unusual cases, draft) executive orders
review all recommendations for pardoning and commutation
review requests for federal disaster relief
review CIA drafted intelligence findings and approve covert action
proposals
interpret treaties and executive agreements
review all presidential statements and speeches for consistency and
compliance with legal standards, and in anticipation of legal challenges
participate in editing the State of the Union address
advance recommendations about executive privilege
chair the president’s War Powers Committee
manage the processes associated with presidential disability or succession
m. Oversee Presidential Nominations and Appointments to the Executive and Judicial branch
participate in the selection of nominees for the top Justice Department
positions participate in the selection of General Counsel nominees
throughout the executive branch and in the NSC staff
chair the joint White House – Department of Justice judicial selection
committee
supervise the vetting and clearance process (FBI, IRS, 278 forms, and
financial disclosure forms) for all presidential nominees and appointees to
the executive and judicial branches
negotiate Senate access to the FBI reports on each nominee
conduct “murder boards” to prepare nominees for Senate confirmation
hearings
n. Advise on Presidential Actions Relating to the Legislative Process
review legislative proposals from the president, Executive Office of the
President, and executive departments and agencies
review bills presented for signature or veto, preparing signing statements
and veto messages
review State and Defense Department authorizations and appropriations
proposals
draft budget rescissions and deferrals
participate in negotiations associated with Senate treaty hearings
participate in legislative negotiations concerning policy, document requests,
treaties, and nominations
o. Educate White House Staffers about Ethics Rules and Records Management and Monitor for Adherence
46
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
distinguish between government expenses and campaign expenses
review presidential travel
approve requests for appointments with the president, monitoring those for
propriety, seemliness, legality, and executive privilege issues
respond to document requests and subpoenas, directed to the President and
to other White House and executive branch officials, by Congressional
committees and Independent Counsels
serve as the ethics officer for the White House staff and senior executive
branch appointees
p. Handle Department, Agency, and White House Staff Contacts with the Department of Justice
conduct all consultations with the Office of Legal Counsel and other Justice
Department offices
request OLC legal opinions on matters of constitutional law
consult with and coordinate department and agency General Counsels
The White House Counsel’s Office
47
APPENDIX TWO:
COUNSELS AND DEPUTY COUNSELS, 1969 -2008
President
Bush
Counsel
Fred Fielding
Harriet Miers
Alberto Gonzales
Dates
2/0711/04- 1/07
1/01-11/04
Clinton
Beth Nolan
8/99- 1/01 Bruce R. Lindsey
1/93- 1/01
William P. Marshall
12/99- 1/01
2/97- 8/99 Cheryl Mills
/96- 8/99
11/95- 2/97 Kathleen Wallman
/969/94- 11/95 James Castello
3/953/94- 9/94
1/93- 3/94 Joel I. Klein
7/93- 3/95
Vincent W. Foster
1/93- 7/93
1/89- 1/93 John P. Schmitz
1/89- 1/93
1987- 1/89 Phillip D. Brady
/88- 1/89
Jay B. Stephens
/86- /87
4/861/81- 2/86 Richard A. Hauser
1/81Herbert E. Ellingwood
1/8110/79- 1/81 Michael Cardozo
10/79- 1/81
Joseph Onek
9/79- 1/81
1/77- 8/79 Margaret A. McKenna
1/77-12/79
8/74- 1/77 Edward C. Schmults
10/75- 1/77
Roderick Hills
4/75-10/75
Philip Areeda
10/74- 2/75
1/74- 8/74
5/73- 1/74 Fred Fielding
5/73- 1/745
7/70-4/73
1/69- 11/69
Charles F. C. Ruff
John (Jack) Quinn
Abner Mikva
Lloyd N. Cutler
Bernard W. Nussbaum
Bush
Reagan
C. Boyden Gray
A.B. Culvahouse
Peter Wallison
Fred F. Fielding
Carter
Lloyd Cutler
Ford
Robert J. Lipshutz
Philip W. Buchen
Nixon
5
J. Fred Buzhardt
Leonard Garment
John Dean
John Ehrlichman
On counsel staff since 10/70
Deputy(ies)
J. Michael Farren
William K. Kelley
David G. Leitch
Timothy E. Flanigan
Dates
5/073/05- 3/07
12/02-11/04
1/01-11/02
48
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
ADDITIONAL READING ON
THE WHITE HOUSE COUNSEL’S OFFICE
ARTICLES
Lloyd Cutler, “The Role of the Counsel to the President of the U.S.,” The Record of the Bar
Association of the City of New York, Vol. 35, No. 8, November 1980, pp. 470-480.
Michael K. Forde, “The White House Counsel and Whitewater: Government Lawyers and the Scope
of Privileged Communications,” Yale Law and Policy Review, Vol. 16, No. 109, 1997, pp. 109167.
Tobias T. Gibson, “Office of Legal Counsel: Inner Workings and Impact.” Law & Courts 18 (Spring
2008): 7-12. http://www1.law.nyu.edu/lawcourts/pubs/newsletter/spring08.pdf
Nancy Kassop, “The Law: When Law and Politics Collide: Presidents and the Use of the TwentyFifth Amendment,” Presidential Studies Quarterly 35 (March 2005): 147-65.
Nelson Lund, “Lawyers and the Defense of the Presidency,” Brigham Young University Law
Review, Vol. 17, 1995, pp. 17-98.
Nelson Lund, “The President as Client and the Ethics of the President’s Lawyers,” Law and
Contemporary
Problems,
Vol.
61,
No.
2,
Spring
1998,
pp.
65-81.
http://www.law.duke.edu/journals/61LCPLund
W. John Moore, “The True Believers,” National Journal, Vol. 23, Nos. 33-34, August 17, 1991, pp.
2018-2022.
Michael Stokes Paulsen, “Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and its
Limits,” Law and Contemporary Problems, Vol. 61, No. 1, Winter 1998, pp. 83-106.
http://www.law.duke.edu/journals/61LCPPaulsen
Michael Stokes Paulsen, “Who “Owns” the Government’s Attorney-Client Privilege?” Minnesota
Law Review, Vol. 83, December 1998, pp. 473-521.
Vicki Quade, “The President is His Only Client,” Barrister Magazine, American Bar Association, Vol.
15, No. 1, Winter/Spring 1988, pp. 4-7, 34-37.
Jeremy Rabkin, “At the President’s Side: The Role of the White House Counsel in Constitutional
Policy,” Law and Contemporary Problems, Vol. 56, No. 4, 1993, pp. 63-98.
Jennifer Wang, “Raising the Stakes at the White House: Legal and Ethical Duties of the White
House,” Georgetown Journal of Legal Ethics, Vol. 8, 1994, pp. 118-.
NEWS ARTICLES
James A. Barnes, “Changing Lawyers,” National Journal, Vol. 29, No. 6, February 8, 1997, pp. 284285.
James A. Barnes, “How Clinton’s Team Spins the Hearings,” National Journal, Vol. 29, No. 30, July
26, 1998, p. 1521.
Gregory C. Bauman, “Keeping Presidential Privileges Intact,” Legal Times, August 10, 1998, p. 14.
Gregory C. Bauman, “Of Presidents and Precedents,” Legal Times, August 17, 1998, p. 1.
Naftali Bendavid, “Keeping the President’s Counsel,” Legal Times, January 10, 1994, pp. 1, 20-21.
The White House Counsel’s Office
49
Naftali Bendavid, “Whitewater Meets the Washington Legal Culture: Cutler’s Task: Mixing Politics,
Fealty and Law,” Legal Times, March 14, 1994, p. 1.
Gloria Borger, “The First Client’s Privilege,” U.S. News and World Report, May 26, 1997, p. 31.
Anne Kornhauser, “Boyden Gray: Not Just George Bush’s Lawyer,” Legal Times, November 12,
1990, pp. 1, 18-19.
Ruth Marcus, “Court Rejects Privilege Claim,” The Washington Post, July 28, 1998, p. 1.
Jim Oliphant, “Losing Privilege: A Scandal-Scarred Legacy for Future Presidents: White House
March
10,
2000.
Counsels
Without
a
Shield,”
Legal
Times,
http://www.lawnewsnetwork.com/stories/A18273-2000Mar9.html
Paul R. Rice, “Should We Make Bruce Lindsey Talk? Drawing the Parallels Between the
Governmental and the Corporate Attorney-Client Privilege,” Legal Times, July 6, 1998, p. 17.
Jeffrey Rosen, “How to Isolate a President,” The New York Times, July 30, 1998, p. 21.
Robert Schmidt, “‘Special’ Role Leaves Counsel Some Private Space,” Legal Times, March 14, 1994,
pp. 8-9.
Alexis Simendinger, “Everything an Aide Needs to Know,” National Journal, Vol. 29, No. 39, 1987,
p. 1897.
David O. Stewart, “The President’s Lawyer,” ABA Journal, The Lawyer’s Magazine, Vol. 72, April 1,
1986, pp. 59-61.
Warren P. Strobel, “Clinton Court Losses Seen Weakening ‘Imperial Presidency’,” The
Washington Times, August 5, 1998, p. 10.
Stuart Taylor, Jr., “Me and Lloyd,” Legal Times, March 14, 1994, pp. 18, 20.
Stuart Taylor, Jr. and Daniel Klaidman, “A Troubling Legal Legacy,” Newsweek, August 24, 1998, p.
25.
COURT DECISIONS
Clinton v. Jones, 520 U.S. 681 (1997)
In re: Bruce R. Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998)
http://laws.findlaw.com/dc/983060d.html
In re Sealed Case (Bruce R. Lindsey) (Grand Jury Testimony), 5 F. Supp. 2d, 21 (D.D.C. 1998).
Nixon v. Fitzgerald, 457 U.S. 731 (1982).
U.S. v. Nixon, 418 U.S. 684 (1974).
CONGRESSIONAL HEARINGS
“Hearings Relating to Madison Guaranty S&L and the Whitewater Development Corporation Washington, D.C. Phase,” Hearings Before the Committee on Banking, Housing, and Urban
Affairs, U.S. Senate, 103rd Congress, 2nd session, Vol. IV, August 3, 4, 5, 1994, esp. pp. 466-515
(testimony of Bernard W. Nussbaum).
50
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
BOOKS
Griffin B. Bell, Taking Care of the Law (New York: William Morrow and Company, Inc., 1982), esp.
pp. 37-39.
Cornell W. Clayton, ed., Government Lawyers: The Federal Legal Bureaucracy and Presidential
Politics (Lawrence, KS: University Press of Kansas, 1995), esp. Chapters 5, 8 and 9.
Clark Clifford and Richard Holbrooke, Counsel to the President: A Memoir (New York: random
House, 1991).
John W. Dean, III, Blind Ambition: The White House Years (New York: Simon and Schuster, 1976).
Barton Gellman, Angler: The Cheney Vice Presidency (NY: Penguin Press, 2008).
Bradley H. Patterson, Jr. The White House Staff :Inside the West Wing and Beyond (Washington,
DC: Brookings Institution Press, 2000), esp. Chapter 6, “The ‘Just-Us’ Department: The Counsel
to the President.”
Bradley H. Patterson, Jr. To Serve the President:: Continuity and Innovation in the White House
Staff (Washington, D.C.: Brookings Institution Press, 2008), esp. Chapter 6, “The ‘Just-Us’
Department: The Counsel to the President.”
Proceedings of the Lloyd N. Cutler Conference on the White House Counsel. Lloyd N. Cutler and the
Evolving Role of the White House Counsel. Presented by the Miller Center of Public Affairs and the
University of Virginia School of Law, November 10-11, 2006, Charlottesville, Virginia.
Charlottesville, VA: University of Virginia, 2008.
Robert N. Roberts and Marion T. Doss, Jr., From Watergate to Whitewater: The Public Integrity
War (Westport, CT: Praeger Publishers, 1997), esp. pp. 97-99.
James Michael Strine, The Office of Legal Counsel: Legal Professionals in a Political System (Ph.D.
dissertation, Johns Hopkins University, 1992), esp. Chapters 2, 4 and 5.
Gregory S. Walden, On Best Behavior: The Clinton Administration and Ethics in Government
(Indianapolis, IN: Hudson Institute, 1996).
ADDITIONAL READINGS ON
THE FEDERAL JUDICIAL SELECTION PROCESS
ARTICLES
Garland W. Allison. “Delay in Senate Confirmation of Federal Judicial Nominees.” Judicature 80
(July-August 1996): 8-15.
Michael J. Gerhardt. “Toward a Comprehensive Understanding of the Federal Appointments
Process.” Harvard Journal of Law and Public Policy 21 (Spring 1988): 467-539.
Sheldon Goldman and Elliot Slotnick. “Clinton’s First Term Judiciary: Many Bridges to Cross.”
Judicature 80 (May-June 1997): 254-273.
Sheldon Goldman and Elliot Slotnick. “Clinton’s Second Term Judiciary: Picking Judges Under
Fire.” Judicature 82 (May-June 1999): 265-284.
Roger E. Hartley and Lisa M. Holmes. “Increasing Senate Scrutiny of Lower Federal Court
Nominees.” Judicature 80 (May-June 1997): 274-278.
The White House Counsel’s Office
51
Miller Commission on the Selection of Federal Judges. Report. Miller Center Commission No. 7,
White Burkett Miller Center of Public Affairs, Charlottesville, VA, 1996.
http://www.virginia.edu/~miller/commissions/commission7.htm
Lee Renzin. “Advice, Consent and Inaction,” Judicature 82 (January-February 1999): 166-174.
BOOKS
Sheldon Goldman. Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan.
New Haven, CT: Yale University Press, 1997.
52
THE WHITE HOUSE TRANSITION PROJECT Institutional Memory Series:
WHAT WHTP DOES
The White House Transition Project unites the efforts of academic institutions with those of
the policy community and private philanthropy into a consortium dedicated to smoothing the
transfer of governing essential to a functioning American republic. It manages two related program,
one on institutional memory and best practices, and one on presidential appointments. In both
programs, the White House Transition Project brings to bear the considerable analytic resources of
the world-wide academic community interested in the viability of democratic institutions on those
problems identified as critical by those experienced hands that have held the unique responsibilities
for governing. As such, the White House Transition Project brings ideas to bear on action.
The White House Interview Program
A common problem of the democratic transfer of power, the White House has no mechanism
for maintaining an “institutional memory” of best practices, of common mistakes, and needed
background information. Partisanship and growing complexity of the selection process exacerbate
the natural tendency to avoid passing from one administration to the next the vital experiences
necessary to carry on governing from one administration to the next. The lack of an institutional
memory, then, literally turns the hallmark of the American constitutional system, its peaceful transfer
of power, into a breathe-taking gamble. The White House Interview Program bridges the gaps
between partisanship and experience by providing a conduit for those who have borne the
extraordinary responsibilities to pass on their judgments to those who will enter the American nerve
center. Its briefing materials compile these lessons from the practitioners with the long-view of
academics familiar with executive organizations and operational dynamics. Provided to the transition
planners for the national presidential campaigns and then to the president-elect’s newly appointed
management team, these materials provide a range of useful perspectives from those who have held
the same positions and faced the same problems that they cannot get on their own or from
government resources.
Nomination Forms Online Program
Detailing the complex problems involved in nominating and then confirming presidential
appointments, the WHTP’s Nomination Forms Online program provides the best available expertise
on the nomination and confirmation process. Its software, NFO, constitutes the only
fully-functional, open-architecture, completely reusable software for making sense of the morass of
government questions that assail presidential nominees. In one place, this software presents
nominees with all of the some 6,000 questions they may confront. Provided free as a public service
by WHTP, NFO prompts nominees for needed information and then distributes and customizes
answers to all of the forms and into all the questions that the nominee must answer on a subject.
HOW TO HELP SMOOTH
THE NEXT PRESIDENTIAL TRANSITION
Originally funded by grants from the Pew Charitable Trusts, WHTP manages its operations
with the help of private philanthropy. To assist in that effort, please contact WHTP at
[email protected].