Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of Cases in Which the Department of Justice Represents a Party

Opinion

Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of Cases in Which the Department of Justice Represents a Party

Section 207(c) of title 18 forbids a form er senior em ployee o f the D epartm ent o f Justice, for one year after his o r her service ends, from signing a brief or m aking an oral argum ent in a case w here the D epartm ent represents one o f the parties

A ugust 27, 1993

M e m o r a n d u m O p in io n fo r t h e D ir e c t o r O f f ic e of G o v e r n m e n t E t h ic s

This memorandum responds to your request for our opinion whether 18 U.S.C. § 207(c) prohibits former high-level Department o f Justice officials, within one year after their service in the Department ends, from filing briefs or making oral arguments on behalf of parties other than the United States in cases where the De­ partment represents one of the parties. We conclude that the statute forbids these activities.

I.

Section 207(c) of title 18 prohibits a senior em ployee, for one year after term i­ nation o f service, from knowingly making a com m unication to or appearance be­ fore his former department in connection with a matter on which he seeks official action.1 This Office construed an earlier, similar version o f § 207(c) as prohibiting former officials from signing briefs or delivering oral arguments in cases where the Department of Justice represents the United States. See, e.g., M emorandum for a United States Attorney, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Former U.S. Attorneys — 18 U.S.C. 207(c) (Oct. 22, 1980); Letter for a Former Official, from Ralph W. Tarr, Acting Assistant Attorney General, Office of Legal Counsel at 3 (Sept. 20, 1985) (“Tarr M em o”); Letter for an Independent Counsel, from Charles J. Cooper, Assistant Attorney General, Of­ fice o f Legal Counsel at 5-6 (Apr. 29, 1987) (“Cooper I M emo”); Letter for an Independent Counsel from Charles J. Cooper, A ssistant Attorney General, Office of Legal Counsel at 6 (Aug. 28, 1987) (“Cooper II M em o”). The Office o f G ov­ ernment Ethics (“OGE”) reached the same conclusion. See The Informal Advisor)’ Letters and Memoranda and Formal Opinions o f the United States Office o f G ov­ ernment Ethics, 1979-1988, at 57 (1989) (Informal Advisory Letter No. 80 x 66,

1 Section 207(d) contains an additional restriction that applies to the most senior officials in the execu- tive branch: such officials may not contact senior officials in other departments and agencies. Our reasoning applies to both § 207(c) and § 207(d).

37 O pinions o f th e O ffice o f L egal Counsel

Aug. 1, 1980) (“O G E L etter No. 80”); id. at 283 (Informal Advisory Letter No. 82 x 13, Aug. 31, 1982); Supplements to the Inform al Advisory Letters and M em o­ randa a n d F orm al O pinions o f the O ffice o f G overnment Ethics, 62-63 (Informal Advisory Letter 89 x 20, Dec. 21, 1989). N otw ithstanding these prior positions, a memorandum to our files dated January 14, 1993 (“January 1993 M em orandum ”), memorialized advice that § 207(c) does not preclude form er senior officials from briefing and arguing cases in which the Departm ent is or represents a party. Your recent letter about the January 1993 M em orandum argued that § 207(c) prohibits such advocacy, and that the am end­ ments to § 207, which w ere passed in 1989, broadened, rather than narrowed, its scope. L etter for D aniel L. Koffsky, Acting A ssistant Attorney General, Office of Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics (June 4, 1993). The question we now face is whether we should revert to our original interpretation o f § 207(c) or should adopt the reasoning of the January 1993 M em orandum .

II.

As first enacted in the Ethics in G overnm ent Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824, 1865 — and before the passage of the 1989 amendments, Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 1717-18 — § 207(c) o f title 18 prohibited a senior governm ent employee (as defined in 18 U.S.C. § 207(d)) from making any oral or written communication to his former agency within one year of the termination o f his employment, with the intent to influence the agency in connection with a particular m atter in which the agency was inter­ ested.2 As we interpreted this version of § 207(c), it prohibited covered former officials of the D epartm ent of Justice from filing briefs or making oral arguments in cases where the D epartm ent represented a party. For example, as we stated in a 1987 letter: T he no-contact rule of section 207(c) prohibits persons to whom it applies from m aking any oral or written communication with their form er agency on behalf of anyone other than the United States, in connection with any matter pending in their form er department, or in which their form er agency has a direct and substantial interest. The D epartm ent o f Justice has historically construed the section to preclude covered former Departm ent o f Justice officials from sign-

2 The main elements of this version of § 207(c) were that a senior employee was prohibited from, (I) within one year of the term ination o f his employment, (2) “with the intent to influence,” (3) *‘mak[ing] any oral or written com m unication” (4) to his form er department or agency (5) “ in connection with any judicial, rulemaking, or other proceeding . or other particular matter” (6) “which is pending before such department or agency or in which such department or agency has a direct and substantial interest.” 18 U.S C § 207(c) (1988),

38 A pplication o f 18 U .S.C § 207(c)

ing briefs or delivering oral argument in court cases where the De­ partment of Justice is representing the United States. W e have not construed it to preclude aiding and assisting in a “behind the scenes” fashion in such cases.

Cooper II Memo at 6; accord Cooper I M emo at 5-6 (containing identical lan­ guage). OGE also adopted this position. In a letter dated August 1, 1980, it squarely addressed whether 18 U.S.C. § 207(c) prohibited a former official from represent­ ing a private client in a suit against his former department within one year after he left that department. OGE concluded that such representation would have the “unavoidable intent of attempting to influence and to persuade the defendant in the lawsuit,” and thus concluded that it would violate § 207(c). OGE Letter No. 80 at 57-58; see also 5 C.F.R. § 2637 (1993) (OGE guidelines prohibiting such repre­ sentation).3 Thus, this interpretation o f § 207(c) was both longstanding and uni­ form in this Office and in OGE.4

III.

The January 1993 M emorandum points to three possible reasons for reading the present version of § 207(c) as not prohibiting a former official of this Departm ent from filing a brief or making an oral argument in a case where the D epartment rep­ resents a party. First, § 207(a), which forbids communications or appearances as to certain matters on which former officials worked or which were under their offi­ cial responsibility, specifically mentions communications to or appearances before courts, but § 207(c) refers only to contacts with agencies. Therefore, according to the January 1993 Memorandum, Congress did not intend § 207(c) to reach the fil­ ing of briefs or the making of oral arguments in court cases, even if the former of­

3 Moreover, in the only judicial opinion that addressed this issue, the court noted that § 207(c) “prevents the plaintiff [a former United States Attorney] . . from involving [himself] in any matters opposed by the Department of Justice for a period of one year.” Sullivan v Director, Office o f Personnel M anagement, No. 81 C 3810 (N.D 111. Jan. 7, 1982), vacated as moot sub nom Devine v. Sullivan, 456 U.S. 986 (1982) 4 The January 1993 Memorandum suggests that two letters from this Office modified our interpretation o f § 207(c), id at 4 n.8, but neither letter bears that construction In the first, we concluded that a former official was prohibited from representing a client by 18 U S C § 207(b)(i) which applied to matters that had been pending under the former official's responsibility. Letter for a Former Official, from Theodore B. O l­ son, Assistant Attorney General, Office of Legal Counsel at 2 (Apr. 17, 1981) We reserved comment on whether § 207(c) would have forbidden such an official from appearing in court if he avoided contact with Department personnel Id. at 2 n.*. Because this statement was irrelevant to our conclusion and simply reserved the question, it does not constitute a modification of this O ffice's interpretation of § 207(c) The second letter cited in the January 1993 Memorandum is inapposite because it involved a former official’s representation in a case in which the Department was not a party but could potentially have participated as an amicus cunae Letter for a Former Official, from J Michael Lutng, Assistant Attorney General, Office of Legal Counsel (Oct. 24, 1990). We concluded that such representation would be permissible, but our rea­ soning included the crucial distinction that amici do not participate as parties and, under the rules of the court involved, the parties’ bnefs were not served on amici. Id at 2.

39 Opinions o f the O ffice o f L egal C ounsel

ficial’s agency was served with the b rief or was present for the argument. Id. at 9- 10. Second, the am endm ents to § 207(c) in 1989 removed a previous reference to com m unications to agencies in connection with judicial proceedings. From this change, the January 1993 M emorandum inferred that the scope o f the section had been narrowed. Id. at 11. Third, the January 1993 M emorandum argued that an attorney who files a brief or delivers an oral argument makes a communication to the court, not to any agency that is o r represents a party to the case, id. at 3-7, and seeks the official action o f the court but not o f such an agency. Id. at 7-8.

A.

As the January 1993 M emorandum points out, § 207(a) specifically mentions com m unications to or appearances before courts and § 207(c) does not. But the argum ent that § 207(c) therefore does not reach a former official’s filing briefs or making oral argum ents in a court case where his former agency represents a party, if valid, would have applied equally to the version o f § 207 enacted in 1978. Like the version o f § 207 now in effect, the law enacted in 1978 mentioned communica­ tions to courts in § 207(a) but not in § 207(c). Nevertheless, the settled interpreta­ tion o f the 1978 version o f § 207(c) was that it barred filing briefs or making oral argum ents in court cases where the form er official’s agency was involved. C ongress’s decision in 1989 to reenact § 207 with this same structure buttressed the previous interpretations of § 207(c). In fact, an earlier proposal to amend § 207 assum ed that it extended to litigation. The proposal contained a specific exem ption to allow form er officials to represent clients in litigation against their agencies before the courts. S. 237, the “Integrity in Post Employment Act,” would have retained in its essentials the structure of § 207(c) (before the 1989 am end­ ments), except that it would have excluded from its prohibitions “an attorney ap­ pearing in a judicial proceeding before a court o f the United States.” S. Rep. No. 100-101, at 20 (1987). The Senate R eport on the section containing the exemption tated that

[t]his section perm its an attorney, who would otherwise be forbid­ den by section 207(c) from m aking advocacy contacts in the Federal G overnm ent, to represent a client in a judicial proceeding before a court o f the United States. In the absence o f this provision, attor­ neys who take a high level G overnm ent position . . . could forfeit their only livelihood for the proscribed period after leaving Gov­ ernm ent service . . . . This section ensures that individuals in this position would not be able to make any advocacy contacts to any executive or legislative body, but could return to the courtroom on judicial business on behalf o f a client.

40 A pplication o f 18 U.S C. § 207(c)

Id. at 29. As these materials reveal, § 207(c) prohibited lawyers from representing clients in judicial proceedings, which would encompass filing briefs and making oral arguments. Congress did not pass the proposed exemption but instead eventu­ ally reenacted § 207 with the same structure (in relevant respects) as before. Con­ gress thus left in place the existing prohibition against filing briefs and making oral arguments in court cases. Furthermore, when Congress amended and reenacted § 207, the administrative interpretation that § 207(c) covered filing briefs or making arguments in court cases was a matter of public knowledge. O G E’s 1980 opinion so holding had been published in 1987 in the Ethics in Government Reporter. W e had set out our iden­ tical position in letters supplied to the Special Division of the District o f Colum bia Circuit that appoints Independent Counsel. By reenacting § 207 with a structure that was, in the relevant respect, identical to that of the earlier version, Congress can reasonably be seen as adopting this administrative construction. Cf. Cottage Savings A s s ’n v. Commissioner, 499 U.S. 554, 561 (1991) (“ “ T reasury regulations and interpretations long continued without substantial change, applying to una­ mended or substantially reenacted statutes, are deemed to have received congres­ sional approval and have the effect of law.’” ”) (quoting United States v. Correll, 389 U.S. 299, 305-06 (1967) (quoting Helvering v. Winmill, 305 U.S. 79, 83 (1938))).

B.

As a result of the 1989 amendments, the present version of § 207(c) prohibits a senior employee from, (1) within one year of the termination of his employment, (2) “with the intent to influence,” (3) “knowingly mak[ing] . . . any communication to or appearance before” (4) his former department or agency (5) “in connection with any matter” (6) “on which such person seeks official action by any officer or employee of such department or agency.” 18 U.S.C. § 207(c)(1). According to the January 1993 M em orandum ’s second argument for its new interpretation of § 207(c), the provision does not cover appearances before a court in which a former official’s agency is litigating because the 1989 am endm ents re­ moved language under which § 207(c) covered communications to an agency “in connection with any judicial, rulemaking, or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular m atter” and replaced it with the phrase “in connection with any matter.” Id. at 11. The removal o f the language modifying the word “matter,” however, shows that the coverage of the provision was broadened, not narrowed. Congress made the section applicable to “any m at­ ter,” not just those matters specifically listed “or other particular m atter[s].” The term “particular matter” had been construed as narrower than the word “m atter.”

41 Opinions o f th e Office o f L eg a l C ounsel

In regulations issued in 1980, OGE had interpreted the “particular m atter” lan­ guage o f § 207(c) as excluding certain kinds o f matters:

[Section 207(c)] does not encom pass every kind o f matter, but only a particular one similar to those cited in the statutory language, i.e., any judicial or other proceeding, application, request for a ruling or determ ination, contract, claim , controversy, investigation, charge, accusation, or arrest. . . . N o t included are broad technical areas and policy issues and conceptual work done before a program has becom e particularized into one or more specific projects.

5 C.F.R . § 2637.204(d) (1993); see also id. § 2635.402(b)(3) (stating that “particular m atter” excludes certain kinds o f m atters). Thus, the regulation indi­ cated that “particular m atter” has a narrow er m eaning than “matter.” In light of the natural m eaning of the words and the published OGE interpretation of “particular m atter,” the elim ination of the reference to “judicial . . . proceeding^]” and “other particular m atter[s]” does not support the new, narrower interpretation o f § 207(c).

C.

T he January 1993 Memorandum also relied on two other phrases in § 207(c). The “com m unications” covered by § 207(c) m ust be “fo . . . any officer or em­ ployee o f the departm ent or agency” in which the former official served. Id. (em phasis added). The January 1993 M emorandum argues that a brief is not di­ rected “to” the Departm ent but to th e court. As with the structure of § 207, how­ ever, this language does not reflect any change from the 1978 version of the statute. The version of § 207(c) in effect before 1989 also required a communica­ tion “to” an officer or employee of the departm ent or agency (or the department or agency itself). The settled interpretation of that language was that it covered briefs and argum ents in a court case. M oreover, the January 1993 M em orandum ’s interpretation o f “communication to” does not com port with the realities of litigation. Briefs and oral arguments are directed not only to the court but also to the opponent, as part o f a dialogue be­ tween the parties. The January 1993 M em orandum acknowledges that § 207(c) probably prohibits some forms of th is dialogue — for example, “[a] colloquy be­ tween counsel in the courtroom.” Id. at 13. But such statements are, like briefs and oral argum ents, technically addressed to the court. The January 1993 M emo­ randum thus concedes that statements technically addressed to the court are also statem ents to opposing counsel, and this concession undercuts the conclusion of the January 1993 Memorandum. W ritten briefs and oral arguments, while more formal than some oral statements in court, are still elements o f an exchange be­ tween counsel.

42 A pplication o f 18 U S C. § 207(c)

The 1989 amendments did add, as an elem ent of the offense under § 207(c), that the former official must “seek official action” from his former department or agency. W hatever the effect of this change in other contexts, however, we do not believe that the new language alters the result here. The reasoning of the prior opinions of this Office and OGE answers the ques­ tion whether a former official who files a brief or makes an oral argument “seeks official action” from an agency that is or represents a party to the case. The prior opinions conclude that an attorney who takes such action is trying to influence the activities of the agency involved. As OGE stated in its 1980 letter, briefs and oral argument “have the additional unavoidable intent of attempting to influence and to persuade the defendant in the lawsuit. The role of the plain tiffs lawyer is in large part to have the defendant [Department] change its position as a result o f what plaintiff argues in court.” OGE Letter No. 80 at 57-58;5 see Tarr M emo at 3 (noting O G E’s reasoning in concluding that a former official cannot brief or argue cases within one year of termination). Under this reasoning, an attorney filing a brief or making an oral argument “seeks official action” from the officers and em­ ployees of an agency or department that is or represents a party to-the case.6 The representation o f the United States in litigation is an official act o f the at­ torney who works on the case. An essential part of this official act is the presenta­ tion o f the government’s arguments, both orally and in written briefs. A lthough a former official’s briefs and arguments are formally addressed to the court, rules of procedure provide each party with an opportunity to rebut the other’s arguments and require that briefs be served on counsel for each party. See, e.g., Sup. Ct. R. 25 (time for filing briefs); id. 29 (service o f briefs); id. 28 (structure of oral argu­ ment); Fed. R. App. P. 31 (time for filing briefs and service of briefs); id. 34 (oral argument). The provision of a period during which an adverse party can formulate arguments constitutes a recognition — and expectation — that the parties respond to their opponents’ arguments. A litigator’s briefs and arguments seek to persuade the opponent that his view of the case is erroneous or, at the least, seek to frame the dispute and win concessions about the issues and principles that should lead to a

5 O G E's informal Advisory Opinion 80 x 6 gave two different grounds for concluding that a former official could not undertake the representation there1 first, that a communication directed to the court was also necessarily an attempt to persuade the adverse party (the official’s former agency), i d , and second, that on the facts of the case the former official would be likely to interact with officials of his former agency Id. at 58. The first ground is sufficient to decide the issue here. As is noted above, however, a brief or oral argument also involves an interaction between counsel 6 The January 1993 Memorandum suggests that, with respect to the “official action’* requirement, there is no basis for distinguishing briefs from advocacy pieces in newspapers or correspondence to the D epart­ ment on firm letterhead, if the former official’s name appears on that letterhead. Id at 6 & n 11 Briefs can be distinguished from these other forms of communication, however, because the latter are not nearly so focused and directed as communications in a court case. Bnefs are sent from the litigating counsel to named attorneys in the Department and thus constitute a communication between litigating attorneys, whereas the other forms of communication either are not from a specific attorney (e.g , inclusion of a name on letterhead) or are not to a specific Department attorney (e g , advocacy pieces in newspapers). Furthermore, most advo­ cacy pieces are written on behalf of the author, and § 207(c)(1) penalizes only communications ”lon behalf of any other person ”

43 Opinions o f th e Office o f L eg a l C ounsel

decision by the court. Moreover, in multi-party cases in which the Department appears, a party’s briefs or arguments may be aimed, in part, at enlisting the United States’ support for at least some o f that party’s positions, as against the other par­ ties. Thus, briefing and oral argument, by their nature, not only request action by the court but also “seek official action” by the Department, in the form of m odifi­ cations to or abandonm ent of argum ents or claims. The 1989 am endm ents’ reference to such “official action,” therefore, does not affect the applicability of § 207(c) to briefing and oral argument. Finally, the legislative history o f the 1989 am endm ents does not indicate any intent to narrow the application of § 207(c), by the addition of the “seeks official action” language or otherwise, in situations where a former official submits a brief or m akes an argum ent to a court. In fact, the only intent expressed — and the ap­ parent im petus for the amendments to § 207(c) — was Congress’s rejection o f the conclusion reached by the United States Court o f Appeals for the District o f C o­ lumbia Circuit in United States v. N ofziger, 878 F.2d 442, cert, denied, 493 U.S. 1003 (1989), that an elem ent of the offense was that the defendant knew of all the facts m aking his conduct illegal.7 T here is no suggestion in the legislative history that Congress intended to narrow the scope o f § 207(c).8

IV.

Thus, before this year, this Office interpreted § 207(c) to prohibit former senior officials from briefing and arguing cases in which the Department is or represents a party. OGE, too, consistently held this view. There is no persuasive evidence that Congress intended that the amendments to § 207(c) would produce a different re­ sult. M oreover, application of § 207(c) to the briefing and arguing of cases com­ ports with the language and history o f the statute.9

7 Senator Levin emphasized this concern, stating that [i]n the recently decided case involving former Presidential aide Lyn Nofziger, the court of ap­ peals held that under the current law, the word ‘‘knowing ' modified all the elements of the of­ fense including the provision that the particular matter was pending before the subject departm ent or agency or that the agency had a direct and substantial interest m the particular m atter That judicial interpretation does not reflect congressional intent We correct that m isin­ terpretation in this bill by including a know ing standard only for the act of making the com m uni­ cation with the intent to influence and state that the offense is committed if the former employee seeks official action by an agency or departm ent employee There is no requirement, here, that the former em ployee know that the particular matter on which he or she is lobbying was a matter o f interest or was pending before (he subject agency or department Thus, we are able to set the record straight on this matter. 135 Cong. Rec 29,668 (1989). 8 See id (Section-by-section analysis describing new version of § 207(c) as “similar to current law” and failing to indicate any changes in scope of § 207(c).) 9 The January 1993 Memorandum suggested that the rule of lenity is relevant because § 207 is a penal statute. Id. at 12. Even assuming that the rule would otherwise be pertinent, it applies only if “after a court has ‘'‘seize[d] every thing from which aid ca n be derived’*' it is still ‘left with an ambiguous statute.” ' Chapman v. United States, 500 U S 453, 463 (1991) (quoting United Slates v. Bass, 404 U.S. 336, 347 (1971) (quoting U nited States v. Fisher, 6 U S (2 Cranch) 358, 386 (1805))); see M oskal v. United States,

44 Application o f 18 U.S.C. § 207(c)

All of these factors militate against the new interpretation set forth in the Janu­ ary 1993 Memorandum. Accordingly, we conclude that the January 1993 M em o­ randum was in error and instead return to the interpretation of § 207(c) that this Office took before that memorandum was written.

DANIEL L. KOFFSKY Acting Deputy Assistant Attorney General Office o f Legal Counsel

498 U S 103, 108 (1990) (,l[W]e have always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies' of the statute") (quoting B ijuhu v United Slates, 447 U S 381, 387 (1980)) The rule of lenity could not apply here because the language and history of § 207(c) show that it prohibits former officials from briefing and arguing cases against the United States, and no ambiguity re­ mains.