Representation of the Government of Panama by a Former Department of State Official in Connection with Proposed Legislation to Implement the Panama Canal Treaty

Opinion

September 24, 1979

79-70 MEMORANDUM OPINION FOR THE LEGAL ADVISER, DEPARTMENT OF STATE

Conflicts of Interest—18 U.S.C. § 207—Former Executive Branch Officer

This memorandum responds to your June 5, 1979 request for our opinion on the applicability o f 18 U.S.C. § 207 to Mr. A, a former Department of State officer who has been approached by the Government of the Republic o f Panama to represent Panam a in connection with legislation being consid­ ered by Congress to implement the 1977 Panam a Canal Treaty. As ex­ plained below, we conclude that, although § 207(a) bars Mr. A from representing the Government of Panam a before the other branches of Gov­ ernment in this matter, it does not bar him from undertaking legislative ac­ tivity on Panam a’s behalf.

I. Facts

The facts, as we understand them, concerning Mr. A ’s relationship to the original Panam a treaty negotiating process appear in a July 13, 1979 memorandum (“ the m em orandum ” ) submitted to us by his firm. As stated in the memorandum, Mr. A served from late 1974 until early 1976 as an Assistant Secretary o f State, and thereafter, until December 31, 1976, as an Under Secretary o f State. At that time, negotiations with representatives o f Panam a concerning the treaty were “ the direct and sole responsibility” o f Ambassador Ellsworth Bunker. Mr. A played no part in the negotiations. According to the memorandum, Ambassador B unker’s office was not itself under Mr. A ’s supervision, although the Ambassador’s negotiating staff included personnel who were under Mr. A ’s supervision.

Ambassador Bunker’s negotiating instructions from the President were developed through a process o f interagency consultation. Mr. A partici­ pated with others in the development o f Department o f State policy posi­ tions on the issues under consideration. According to the memorandum: “ The primary issues considered in the treaty negotiations during Mr. A ’s

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tenure in the government were procedural issues—i.e., issues relating tc the pace o f the negotiations.” In this connection, he accompanied other officials on a visit to Panam a, and participated in discussions with General Torrijos on the pace o f negotiations. He also participated in conveying to General Torrijos the support o f the Joint Chiefs o f Staff for the two Panam a treaties.

Mr. A, both during and since his Government service, has testified before both Houses o f Congress and has spoken publicly about the signifi­ cance o f the Panam a negotiations to United States relations with Latin Am erica.1 He met with a num ber o f Senate and House Members when Congress had before it several resolutions designed to stop the negotia­ tions while they were in progress. Further, during his Government service and for several m onths thereafter, Mr. A served as a member o f the Board o f Directors o f the Panam a Canal Company, although, according to the memorandum, neither the Com pany nor its board played any role with respect to the treaties or implementing legislation.

According to the m em orandum , Mr. A, while in Government service, obtained “ relatively little confidential inform ation on the Panam a Canal treaties.” The m em orandum states that he possesses no confidential infor­ mation gained while he was in the Government that is relevant to the im­ plementing legislation now under consideration by Congress.

II. Discussion

W hether Mr. A may lawfully represent Panam a during Congress’ con­ sideration o f legislation implementing the Panam a Canal Treaty depends on the applicability o f 18 U .S.C . § 207 (1976).2 In pertinent part, § 207 provides criminal sanctions for:

(a) Whoever, having been an officer or employee o f the ex­ ecutive branch o f the United States Government * * * after his employment has ceased, knowingly acts as agent or at­ torney for anyone other than the United States in connection with any judicial or other proceedings, application, request for a ruling or other determ ination, contract, claim, controversy, charge, accusation, arrest, or other particular matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and in which he par­ ticipated personally and substantially as an officer or

'In connection with Mr. A ’s public speeches in support o f the treaties since he left the Governm ent, the State D epartm ent has informed us that it furnished him with material that was otherwise publicly available, but that he was acting in a personal capacity in these ef­ forts. We further understand that Mr. A was one o f several experts, both pro and con, con­ sulted by a Senator as he developed his position on treaty ratification; again, the Departm ent o f State furnished Mr. A with certain otherwise publicly available inform ation in connection with his activities.

“Except as otherwise noted, references in this opinion to 18 U .S.C . § 207 apply to that statute as written before July 1, 1979. Section 207 has now been am ended, effective July 1, 1979, by the Ethics in G overnm ent Act o f 1978, title V, Pub. L. 95-520, 92 Stat. 1864.

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employee, through decision, approval, disapproval, recommen­ dation, the rendering o f advice, investigation, or otherwise, while so employed. * * * Whether § 207(a) bars Mr. A ’s proposed efforts on behalf o f Panam a thus depends on whether proceedings involving implementation o f the Treaty would, in any respect, be covered by the statute and, if they would, whether the statute reaches legislative activity in connection with this matter.

A. Treaty Implementation Covered by § 207(a)

Although we have carefully considered the views o f Mr. A ’s firm on these questions, we conclude, first, that the implementation o f the Panam a Canal Treaty, at least as it may involve judicial proceedings or proceedings before the executive branch o f Government, is a “ particular m atter” involving specific parties in which the United States is a party and has a direct and substantial interest and in which Mr. A participated per­ sonally and substantially as an officer o f the U.S. Government.

First, although Mr. A did not actually participate in treaty negotiations, he did participate in formulating the Department o f State’s—and thereby the United States’—position with respect to the treaty. Such activities would be encompassed within the terms “ recom m endation” and “ render­ ing o f advice,” which are among the enumerated methods o f participation covered by the statute. It is irrelevant that many other Government offi­ cials participated, or, given the overall significance o f the treaties, that the policy issues during Mr. A ’s tenure were, in some sense, “ procedural.” He headed an office within the Department o f State that was keenly interested in the negotiations. The policy input o f a person in this position must be regarded as “ substantial participation” under § 207(a).

We further conclude that the treaties with Panam a constitute a “ par­ ticular m atter involving a specific party or parties.” Unlike general legisla­ tion or rulemaking, treaties are intended to affect specific participating parties, namely, their signatories. In form, treaties closely resemble con­ tracts, which are expressly covered by the statute. They are signed after the type o f quasi-adversarial proceedings or negotiations that precede or sur­ round the other types o f “ particular m atters” enumerated in § 207(a). The phrase “ involving a specific party or parties” has been read to limit the section’s concern to “ discrete and isolatable transactions between iden­ tifiable parties.” B. Manning, Federal Conflict o f Interest Law 204 (1964). Such a characterization aptly describes the treaty negotiation process.

Finally, we conclude that any proceeding involving the executive branch of Government, the branch which negotiated the treaty, or any judicial pro­ ceeding that concerns the implementation of the treaty would be the same matter or “ particular matter” as the negotiation with which Mr. A was associated. From a review o f the treaty, it is evident that both parties understood the necessity o f subsequent steps by the United States to set the de facto terms, as well as the tone, o f the two nations’ agreement. Articles III

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and IV o f the Panam a Canal Treaty, “ Canal Operation and M anagement” and “ Protection and Defense,” respectively, leave the United States free to exercise its responsibilities under the treaty as it chooses, subject only to general principles and requirements. 77 Dept, of State Bull. 485-488 (1977). Any “ judicial o r other proceeding, appli­ cation, request for a ruling or other determ ination, contract, claim, con­ troversy, charge, accusation, arrest, or other particular m atter” specif­ ically involving the Governments o f Panam a and the United States as parties, concerning the implementation o f the treaty, must be viewed as part o f the last stage o f the single negotiating or diplomatic process by which the nations reach their final agreement.

B. Legislative Activities Excluded from § 207(a)

The question remains, however, whether—notwithstanding our conclu­ sion that a proceeding that concerns implementation o f the Panam a Canal Treaty and involves specific parties would be part o f the same particular m atter involving specific parties with respect to which Mr. A had personal and substantial responsibility while in office—§ 207(a) is inapplicable because Mr. A ’s proposed activities would solely involve Congress’ con­ sideration o f proposed legislation. On this issue, we agree with Mr. A ’s firm th at wholly legislative activity is not barred by § 207(a).

W hether § 207(a) applies to legislative activity is not clearly settled either by the language or history o f the statute. None o f the kinds o f proceedings specified in that statute is legislative in nature, and it is generally settled that proceedings, such as general rulemaking, that do not typically involve specific parties, are outside the ambit o f § 207(a). See Attorney General’s M em orandum Re the Conflict o f Interest Provisions o f Public Law 87-849, 18 U .S.C . 201 note (1976). It would appear reasonable to con­ clude, however, that some legislation, e.g., private bills, would appear to be particular matters involving specific parties as to which application of the § 207(a) bar would advance the policy goals o f the Act. The question o f the statute’s scope is, therefore, a close one.

We nonetheless conclude that legislative activity is not within the scope o f “ particular m atters” covered by § 207(a). Assuming that, in theory, certain kinds o f legislation could justly be described as proceedings “ in­ volving a specific party or parties,” most legislation cannot. To bring within the ambit o f § 207(a) those legislative activities that might be deemed to fall within the specified kinds o f proceedings would require the drawing o f some line to separate the exceptional categories o f legislation from the typical legislative proceedings that more closely resemble general rulemaking. Congress has not, in § 207(a), made any attem pt to draw such a line. It would be inappropriate, in construing a criminal statute, to infer a nonobvious distinction between permissible and proscribed activity that Congress has not squarely considered and that would render uncertain the

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applicability o f the criminal sanctions involved.3 This is especially so in an area where the activities proscribed by statute, are not among those that led Congress to enact the prohibition.

In this connection, although the acts o f a subsequent Congress do not control the interpretation o f an earlier statute, it must be noted that C on­ gress, in 1978, specifically amended § 207(a) in a way that expressly ex­ cludes legislative activity.4 In so doing, Congress acted on the apparent assumption that it was clarifying, not changing, pre-existing law in this respect. The assumption is evident, first, in a report o f the Senate Com ­ mittee on Governmental Affairs that interpreted a proposed new version o f § 207 that would not have changed the language o f § 207(a) with regard to the inclusion or exclusion o f legislative activity. The Committee said, with respect to the proposed revision:

A former official is also allowed [under § 207(a)] to appear before Congressional committees and give testimony even on particular matters involving specific parties in which he par­ ticipated personally and substantially while in office. [S. Rept. No. 170, 95th Cong., 1st sess. 152 (1977).]

Because Congress had not yet rewritten § 207(a) to make the exclusion of legislative activity express, the Senate comm ittee’s interpretation must have reflected its understanding o f the range o f proceedings covered by the language o f the former § 207(a).

’The legislation history o f § 207(a) strongly supports the conclusion that Congress did not consider the applicability o f the postemploym ent ban to legislative activity. The language o f both the House and Senate reports emphasizes Congress’ concern with “ judicial as well as administrative proceedings,” H. Rept. 748, 87th Cong., 1st sess. 11 (1961); see also S. Rept. 2213, 87th Cong., 2d sess. 5 ( 1962), excluding, by implication, any consideration o f the legislative forum.

‘As amended, § 207(a) now provides criminal sanctions for:

W hoever, having been an officer or employee o f the executive branch o f the United States G overnm ent, o f any independent agency o f the United States, or o f the District o f Columbia, including a special Governm ent employee, after his employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, any other person (ex­ cept the United States), in any formal or informal appearance before, or, with the intent to influence, makes any oral or written com m unication on behalf o f any other person (except the United States) to —

(1) any departm ent, agency, court, court-m artial, or any civil, military, or naval commission o f the United States or the District o f Colum bia, or any officer or employee thereof, and (2) in connection with any judicial or other proceeding, application, request for a ruling or other determ ination, contract, claim, controversy, investigation, charge, ac­ cusation, arrest, or other particular m atter involving a specific party or parties in which the United States or the District o f Columbia is a party or has a direct and substantial interest, and (3) in which he participated personally and substantially as an officer or employee through decision, approval, disapproval, recom mendation, the rendering o f advice, investigation or otherwise, while so employed; * * * The Office o f Governm ent Ethics regulations interpreting the new § 207(a) specifically permit legislative activity. 44 F.R. 19979 (1979), to be codified at 5 CFR § 737.5(c).

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This conclusion is buttressed also by the premise stated throughout the legislative history that, insofar as § 207(a) was being revised substantively, the new conflict o f interest provisions would be more stringent than the old. See, e.g., id. at 32. If the former version o f § 207(a) included legislative activities, the new version would in fact be more lenient in this regard.

We conclude that Congress’ understanding in 1978 concerning the scope o f § 207(a) was correct. The language o f § 207(a) necessarily excludes most legislation from the kinds o f matters it covers, and no guidance appears th at suggests a line to be drawn between different kinds o f legislative ac­ tivity with respect to the applicability o f the statute.

Conclusion

For the foregoing reasons, we conclude that Mr. A may participate in legislative activities connected with implementing the Panam a Canal T reaty.5 It should be noted that our interpretation o f § 207(a) would bar his representation o f Panam a before the judicial or executive branches in any proceeding connected with the implementation o f the treaty.

John M . H arm on

Assistant A ttorney General Office o f Legal Counsel

’This Office has not considered the effect, if any, o f the Code o f Professional Responsibil­ ity in the present context, either with respect to any steps that may be required o f Mr. A to preserve the confidences and secrets o f his form er client, the United States, see C anon 4, or the effect, if any, o f his past and present relationship with that client on his ability to exercise fully independent professional judgm ent on behalf o f Panam a. See C anon 5.