Application of 18 U.S.C. § 207 to Former CIA Officials' Communications With CIA Employees on Detail to Other Agencies ( 2007 )

Application of 18 U.S.C. § 207 to Former CIA
Officials’ Communications With CIA
Employees on Detail to Other Agencies
The prohibition in 18 U.S.C. § 207(c), under which a former high level official, in the year after his
departure, may not make “any communication to or appearance before any officer or employee” of
his former agency, would apply if former CIA officials make communications to or appearances
before CIA employees who are on detail to other agencies.
October 23, 2007
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
CENTRAL INTELLIGENCE AGENCY
A provision of the conflict of interest laws, 18 U.S.C. § 207(c) (2000 & Supp.
IV 2004), generally forbids a former high level official, in the year after his
departure, from making “any communication to or appearance before any officer
or employee of the department or agency in which such person served.” You have
asked whether section 207(c) would apply if former officials of the Central
Intelligence Agency (“CIA”) make communications to or appearances before CIA
employees who are on detail to other agencies. 1 We believe that it would.
I.
The conflict of interest laws provide for a one-year “cooling off” period when a
high level official leaves the government. During the one-year period after the
termination of his service, the former official may not
knowingly make[], with the intent to influence, any communication
to or appearance before any officer or employee of the department or
agency in which such person served within 1 year before such termi-
nation, on behalf of any other person (except the United States), in
connection with any matter on which such person seeks official ac-
tion by any officer or employee of such department or agency.
18 U.S.C. § 207(c)(1). 2
1
Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from
John A. Rizzo, Senior Deputy General Counsel, CIA (Feb. 2, 2006). We also received the views of the
Office of Government Ethics (“OGE”). Letter for Steven G. Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel, from Marilyn L. Glynn, General Counsel, OGE (Feb. 9, 2006). The
CIA later presented some additional views and information. Letter for Daniel Koffsky, Office of Legal
Counsel, from Joan P. Walton, Agency Ethics Counsel, CIA (May 18, 2007) (“CIA Supplemental
Letter”).
2
The provision applies to several categories of former high level officials. Of greatest relevance
here, the provision reaches former officials whose pay was at least 86.5 percent of the basic pay for
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Application of 18 U.S.C. § 207 to Former CIA Officials’ Communications
The Office of Government Ethics has taken the view that this provision applies
to a former official’s communication to or appearance before an officer or
employee of his former agency, even if, at the time of the communication or
appearance, that officer or employee has been detailed to an agency other than the
one in which the former official served. OGE expressed this view in Letter to a
Private Attorney, Informal Advisory Ltr. 03x9, 2003 WL 23675085 (Nov. 26)
(“OGE Advisory Letter”). That opinion relied on 18 U.S.C. § 207(g) (2000),
which provides:
For purposes of this section, a person who is detailed from one de-
partment, 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.
OGE concluded that, under section 207(g), “a current employee to whom
communications are made is to be considered an employee of both his own
agency and the agency to which he has been detailed” and that “[a]ccordingly, in
order for the one-year cooling-off period to be triggered, the appearance does
not have to be before the former senior employee’s agency, but only before an
employee of the former senior employee’s agency.” OGE Advisory Letter, 2003
WL 23675085, at *1, *2.
It could be argued, however, that section 207(c) does not apply to a communi-
cation to or appearance before the detailed employee because the detailed
employee would be acting on behalf of an agency other than the agency in which
the former senior employee worked. Under such circumstances, the former senior
employee arguably would not be in a position to influence his former agency or
trade on nonpublic information acquired during his government employment. In
addition, it could be argued that section 207(g) makes the one-year bar applicable
with respect to any agency in which a former official served in his last year with
the government, including any agency to which the employee was detailed, but
does not specify the employees to whom communications, or before whom
appearances, are forbidden.
II.
The central issue here is whether a CIA officer or employee, while on detail to
another agency, is an “officer or employee of the [CIA]” for purposes of section
207(c)’s prohibition against a former high level official’s communications to or
Level II of the Executive Schedule. 18 U.S.C. § 207(c)(2)(A)(ii). The provision also covers, among
others, those whose pay is specified in subchapter II of chapter 53 in title 5 or who are in positions of
active duty commissioned officers of the uniformed services serving in a grade or rank paid at the O-7
level or above. Id. § 207(c)(2)(A)(i), (iv).
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Opinions of the Office of Legal Counsel in Volume 31
appearances before “any officer or employee of the department or agency in which
such person served.” We believe that section 207(g) resolves this issue. It pro-
vides, in unequivocal language, that, “[f]or purposes of this section,” i.e., section
207 in its entirety, an employee on detail “from one . . . agency . . . 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.” 18 U.S.C. § 207(g) (emphasis added). Thus, a CIA employee on detail is
deemed an employee of the CIA, as well as an employee of the agency to which he
is detailed. Nothing in the language of section 207(g) limits the circumstances in
which a detailed employee has this dual status for purposes of section 207.
Therefore, a prohibition that applies to a “communication to or appearance before
an officer or employee of the department or agency in which [a former CIA
official] served” covers an officer or employee who has been detailed from the
CIA to another agency or entity. 3
We recognize that the language of section 207(g), together with section 207(c),
arguably goes beyond the precise purposes that Congress intended to achieve. The
legislative history suggests that section 207(c) was originally intended to deny
former officials any “improper or unfair advantage in subsequent dealings with
that department or agency” in which they served. See S. Rep. No. 95-170, at 33
(1977). As noted above, the ability of former officials to take unfair advantage of
their prior service is arguably reduced or eliminated when they communicate with
employees of their former agencies who have been detailed elsewhere. But “we do
not resort to legislative history to cloud a statutory text that is clear.” Ratzlaf v.
United States, 510 U.S. 135, 147–48 (1994). Moreover, the implications of the
legislative history here are far from clear: a former CIA official might still be able
to influence a detailee by virtue of a past association. See 135 Cong. Rec. 29,668
(1989) (statement of Sen. Levin) (“[T]he offense is committed if the former
employee seeks official action by an agency or department employee.”); cf.
S. Rep. No. 95-170, at 33 (1977) (the cooling off period is aimed at preventing the
3
Because the language of the statute is clear, the rule of lenity, calling for an ambiguous penal
statute to be construed in favor of a defendant, does not apply. See Chapman v. United States, 500 U.S.
453, 463 (1991). Moreover, we do not believe that any particular weight should be placed on the fact
that OGE had not addressed this specific issue in its regulations and informal publications. As noted
above, OGE did address the issue in the 2003 OGE Advisory Letter.
Section 207(i)(1) states that the “officer or employee” to whom a communication may not be made
“include[s] . . . (A) in subsections (a), (c), and (d), the President and the Vice President; and (B) in sub-
section (f), the President, the Vice President, and Members of Congress.” The section addresses some
of the officers to whom prohibited communications may not be made. We do not believe that any
inference can be drawn from the silence in this section about the treatment of detailees. First, section
207(g) deals with detailees specifically, “[f]or purposes of this section.” Any further treatment of
detailees would have been superfluous. Second, section 207(i) concerns the status of elected officials,
and its declaration that the statute “include[s]” them for some purposes hardly suggests that the
provision is intended to exclude other “officer[s] or employee[s]” from the category of persons whom a
former official is forbidden to contact.
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Application of 18 U.S.C. § 207 to Former CIA Officials’ Communications
use of “information, influence, and access acquired during government service at
public expense, for improper and unfair advantage in subsequent dealings with
that department or agency”). Even if the language of the statute does cover
instances beyond the abuses at which it was aimed, “Congress appropriately enacts
prophylactic rules that are intended to prevent even the appearance of wrongdoing
and that may apply to conduct that has caused no actual injury to the United
States.” Crandon v. United States, 494 U.S. 152, 164 (1990). By providing in
section 207(g) that a detailee is deemed an officer or employee of the agencies
from which and to which he is detailed, Congress laid down a clear rule designed
to prevent undue influence. Even assuming that the statute might be “applied in
situations not expressly anticipated by Congress,” that fact “does not demonstrate
ambiguity. It demonstrates breadth.” Nat’l Org. for Women, Inc. v. Scheidler, 510
U.S. 249, 262 (1994).
We do not believe that the terms under which CIA officers and employees are
detailed, as you have explained them to us, are so unusual that such an officer or
employee is not “a person who is detailed from one department, agency, or other
entity to another department, agency, or other entity” under 18 U.S.C. § 207(g).
No general statutory definition of the term “detail” exists, but the Federal Person-
nel Manual defined a detail as “the temporary assignment of an employee to a
different position for a specified period, with the employee returning to . . . regular
duties at the end of the detail.” The Honorable William D. Ford, Chairman,
Committee on Post Office and Civil Service, B-224033, 1987 WL 101529, at *2
(Comp. Gen. Jan. 30) (quoting Department of Health and Human Services Detail
of Office of Community Services Employees, 64 Comp. Gen. 370, 376 (1985)
(citing Federal Personnel Manual ch. 300, § 8-1 (Inst. 262, May 7, 1981))). Even
after the Federal Personnel Manual was abolished, we have continued to use this
definition, which reflects the common understanding of the term. See, e.g.,
Applicability of 3 U.S.C. § 112 to Detailees Supporting the President’s Initiative
on Race, 21 Op. O.L.C. 119, 120 (1997). Neither the extended length of CIA
details nor the removal of employees from the CIA chain of command is contrary
to this usual understanding. Although a “detail” may generally be short-term, there
are other instances in which details, though “temporary,” last for years. Under 5
U.S.C. § 3343(b) (2000), for example, an agency may “detail” an employee to an
international organization for up to five years, and, upon a finding by the Presi-
dent, this period may be extended for three more years. See also 22 U.S.C. § 3983
(2000 & Supp. IV 2004) (details to American Institute in Taiwan for up to six
years). The Environmental Protection Agency and the Department of the Interior
detail employees to the Office of Agricultural Environmental Quality in the
Department of Agriculture for up to three years. See 7 U.S.C. § 5402(c)(2) (2000);
see also 22 U.S.C. § 2685(a) (2000) (reimbursement to Department of State when
details exceed two years).
We understand that CIA personnel often serve particularly long details at
other agencies, but we do not believe that the arrangements are so unusual in this
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Opinions of the Office of Legal Counsel in Volume 31
respect as to fall outside the term “detail” as generally understood. Indeed, when
CIA employees are assigned to other agencies under specific statutes that
exempt the assignments from the usual limits on duration, those statutes use the
term “detail.” See 10 U.S.C. § 444(c) (2000 & Supp. V 2005) (“details” to the
National Geospatial-Intelligence Agency); 50 U.S.C. § 403v (2000) (“detail” to
the National Reconnaissance Office). Similarly, “an assignment to a different
position” necessarily entails some loss of control by the detailing agency, and it
is doubtful that an agency detailing an employee to, for example, the National
Security Council continues in any practical sense to include the employee within
its own chain of command. Once again, the terms of CIA details are not so
unusual as to make the term “detail” in section 207(g) inapplicable.
That the CIA detailees do not encumber the positions from which they are
detailed presents a somewhat more complicated issue. The definition derived from
the Federal Personnel Manual includes that the detailed “employee return[s] to his
regular duties at the end of the detail.” If detailees do not continue to encumber the
positions they previously occupied, they may, upon their return to the agency,
have different responsibilities from those previously assigned to them, see CIA
Supplemental Letter at 4 (a detailee from the CIA “routinely returns to different
duties from those she left”), and arguably that fact takes these detailees outside the
usual understanding of a “detail.” We would not, however, read the reference in
the Federal Personnel Manual to “his regular duties” so narrowly. If a detailee
were told that he would be promoted upon his return to the detailing agency, he
would not thus lose the status of a detailee. The “regular duties” to which a
detailee returns must mean something broader, such as full-time duties at the
agency from which he came. We do not, moreover, understand the CIA to contend
that the employment relationship between the agency and its employees is lost or
changed during details to other federal agencies. Detailees may not return to the
same positions at the agency, but they do generally return. We therefore do not
believe that the fact that the employee does not encumber the position from which
he was detailed would change the analysis.
We understand that construing section 207(c) to apply to communications by a
former high level official to employees of his former agency, even if they are on
detail to another agency, may present practical difficulties. For example, you have
suggested that such a reading would require former senior agency officials to poll
meeting participants to determine whether he is communicating with a detailee
from his former agency. Section 207(c) applies, however, only when the former
official “knowingly makes . . . any communication to or appearance before any
officer or employee” of his former agency. 18 U.S.C. § 207(c)(1). By its terms, the
statute appears to require, as an element of the offense, that the former official
know he is speaking to an employee of his former agency. The 1989 amendments
to the statute, it is true, did remove a provision under which an element of the
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offense had been the former employee’s knowledge that his former agency had an
interest in the matter or that the matter was pending before the agency. 4
But even if, under the current version of section 207, that particular element has
been deleted, the statute on its face seems to impose liability only if the former
official knows at least that the employee with whom he is communicating is from
his former agency.
STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
Office of Legal Counsel
4
Before 1989, section 207(c) extended to communications to “the department or agency in which
[the former official] served as an officer or employee, or any officer or employee thereof,” provided the
matter was “pending before such department or agency” or the department or agency had “a direct and
substantial interest.” 18 U.S.C. § 207(c) (1982). In United States v. Nofziger, 878 F.2d 442, 444 (D.C.
Cir. 1989), the District of Columbia Circuit held that the statute required knowledge that the former
agency was considering the matter or had an interest in it. The Ethics Reform Act of 1989, Pub. L. No.
101-194, 103 Stat. 1716, amended the statute to remove this knowledge requirement. Senator Levin
explained:
In the recently decided case involving former Presidential aide Lyn Nofziger, the court
of appeals held that under the current law, the word “knowing” modified all the ele-
ments of the offense including the provision that the particular matter was pending be-
fore the subject department or agency or that the agency had a direct and substantial
interest in the particular matter. That judicial interpretation does not reflect congres-
sional intent. We correct that misinterpretation in this bill by including a knowing
standard only for the act of making the communication with the intent to influence and
state that the offense is committed if the former employee seeks official action by an
agency or department 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 of
interest or was pending before the subject agency or department. Thus, we are able to
set the record straight on this matter.
135 Cong. Rec. 29,668 (1989).
253