1620 AMERICAN CRIMINAL LAW REVIEW 53:1619 · covered by the statute (ii) in connection with a particular matter in which influence ... AMERICAN CRIMINAL LAW REVIEW § § To § §

AMERICAN CRIMINAL LAW REVIEW

1. C overage . ..................................2. "Particular Matter" and "Agency"................3. Exceptions ..................................

C. Limitations on "Revolving Door" Post-EmploymentA ctivities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1. Elements of the Offense .........................

a. Coverage ................................b. Representative or Agent .....................c. Direct and Substantial Interest of the

United States .....................d. Know ledge ...............................

D. Acts Affecting Financial Interest ......................1. Elements of the Offense .........................

a. Officer or Employee ........................b. Participated "Personally and Substantially" in a

"Particular Matter".........................c. Knowledge of Financial Interest ...............

2. D efenses ....................................E. Illegal Outside Salaries for Federal Employees ...........F . P enalties .......................................

IV. THE HONEST-SERVICES DOCTRINE .........................

A. History of the Honest-Services Doctrine ................1. Shushan and the Early Honest-Services Cases ........2. M cN ally ....................................3. Section 1346 .................................

B. The Current Honest-Services Doctrine .................1. Skilling and Black .............................2. Elements of the Honest-Services Doctrine ............

a. Defraud of Honest Services ...................b. Bribes and Kickbacks .......................

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I. INTRODUCTION

Congress has enacted statutes designed to deter and punish acts of corruptioninvolving government officials that are contrary to the best interests of the generalpublic.' The growing interdependence between the Government and the privateeconomy has increased the number of potential conflict-of-interest situations andthe need for regulation.2 The discussion that follows examines several of the

1. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961).

2. For a brief history of federal conflict-of-interest statutes and the original purpose of the modern conflict

statute, see Van Ee v. EPA, 202 E3d 296, 305 08 (D.C. Cir. 2000) (discussing historical context for the federal bar

on federal employee representational services). For an analysis of the 1962 legislation that consolidated and

modernized federal conflict-of-interest statutes, see Memorandum of Attorney General Regarding Conflict of

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2016] PUBLIC CORRUPTION

enumerated crimes. Section II of this Article examines the elements of, defensesto, and penalties for the federal bribery3 and illegal gratuity4 offenses. Section IIIexplores the elements of and defenses to the unauthorized compensation offense5

and examines provisions limiting the activities of government officers and employ-ees during6 and after7 their terms of employment. Section III also analyzes thestatutory provisions governing participation by government officials in activitiesin which the official has a financial interest8 as well as improper acceptance ofcertain outside compensation.9 Finally, Section IV addresses the honest-servicesdoctrine and the Supreme Court's limitation of its application. 10

II. BRIBERY AND ILLEGAL GRATUITY

In 1962, Congress enacted a package of conflict-of-interest legislation thatsignificantly revised the federal bribery statute.1 These revisions laid the founda-tion for "an intricate web of regulations ... governing the acceptance of gifts andother self-enriching actions by public officials," 12 including statutory prohibitionson bribery and illegal gratuity. The discussion that follows describes the fourelements of the bribery and illegal gratuity offenses and then considers potentialdefenses and sanctions.

Interest Provisions of Public Law 87-849, 28 Fed. Reg. 985 (Jan. 28, 1963) (comparing previous law to 1962 Act);

Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 HARV. L. REv. 1113, 1114(1963) ("The conflict

of interest with which the public is concerned is the encounter between the personal economic interest of a

government official and his duty as a fiduciary to the public.").

3. See 18 U.S.C. § 201(b) (2012) (criminalizing offer or receipt of bribe to or by public officials or witnesses).

4. See id. § 201(c) (criminalizing offer or receipt of illegal gratuity to or by public official or witness).

5. See id. § 203 (prohibiting unauthorized compensation of government officials for representing persons

before the government).

6. See id. § 205 (prohibiting government officials from representing persons prosecuting claims against the

United States or before the government).7. See id. § 207 (restricting post-employment activities of former executive branch officials). The Honest

Leadership and Open Government Act of 2007 increased the restriction on lobbying by former executive

personnel from one year to two years. Pub. L. No. 110-81, § 101, 121 Stat. 735, 736 37 (2007) (codified at 18U.S.C. § 207 (2012)).

8. See 18 U.S.C. § 208 (2012) (prohibiting executive branch officials from participating in matters that affect

their financial interest).

9. See id. § 209 (prohibiting executive branch officials from receiving outside compensation).

10. See id. § 1346 (including in the definition of a "scheme to defraud" the "intangible right of honest

services") (held unconstitutional by Richter v. Advance Auto Parts, Inc., 686 E3d 847, 856 (8th Cir. 2012) cert.

dismissed, 133 S. Ct. 1491 (2013)); see also Skilling v. United States, 561 U.S. 358, 408 (2010) (limiting the

application of the doctrine to cases of bribery or kickbacks).

11. 18 U.S.C. §§ 201 209 (2012). See generally William M. Welch II, Comment, The Federal Bribery Statute

and Special Interest Campaign Contributions, 79 J. CRIM. L. & CRIMINOLOGY 1347 (1989).

12. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 409 (1999) (discussing federal statutes

and regulations outlawing various kinds of gratuities).


payments for airfare and hotel for a single vacation trip) are to be treated as a singlegratuity, even if charged in separate counts."

If the value of the illegal gratuity exceeds $5,000, § 2C1.2(b)(2) instructs thecourt to increase the base offense level in accordance with the loss table in§ 2B1.1.8 0

If the gratuity was given to an elected official or an official holding a high-leveldecision-making or sensitive position, § 2C1.2(b)(3) provides for a four-levelincrease and a minimum offense level of fifteen.18 1 As with bribery offenses,individuals who generally qualify as high-level public officials and officialsholding sensitive positions include prosecuting attorneys, judges, agency adminis-trators, law enforcement officers, jurors, election officials, and other governmentofficials who are able to substantially influence a governmental entity's decision-making process. 112

Section 2C1.2(b)(4) provides for a two-level increase if the defendant was apublic official who facilitated entry for a person, a vehicle, or cargo into the UnitedStates or helped obtain a passport or other immigration or government identifica-tion document.

183

b. Offenses Involving Witnesses

Section 2J1.9 of the Guidelines applies to defendants convicted under 18 U.S.C.§ 201(c)(2) or (3) for illegal gratuities involving witnesses1 84 and sets a baseoffense level of six. 185 Section 2J1.9(b)(1) provides for a four-level increase if theillegal gratuity was made or offered to induce the witness to refuse to testify or notto present herself in order to avoid testifying. 18 1

6

III. CRIMINAL CONFLICT OF INTEREST

This Section examines the elements of, defenses to, and penalties for chargesrelating to criminal conflicts of interest.

0 Part A discusses 18 U.S.C. § 203, which prohibits the unauthorizedcompensation of government officials for representing persons in mattersaffecting the government. 187

180. See id. § 2C1.2(b)(2).

181. Id. § 2C1.2(b)(3).

182. Id. § 2C1.2 cmt. n.3 (defining "high-level decision-making or sensitive position" and outlining

individuals who qualify under the definition); see United States v. Richards, 674 F.3d 215, 224 (3d Cir. 2012)

(affirming the district court's conclusion that a human resources director was subject to the "high level official"

enhancement at § 2C1.2(b)(3) because he was able to "substantially influence the [county government's]

decision-making process").

183. U.S.S.G. MANUAL § 2C1.2(b)(4).

184. Id. at app. A.

185. Id. § 2J1.9(a).

186. Id. § 2J1.9(b)(1).

187. 18 U.S.C. § 203 (2012).

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PUBLIC CORRUPTION

* Part B discusses 18 U.S.C. § 205, which prohibits government officialsfrom representing persons prosecuting claims against the United States orpersons before the government in connection with any covered matter inwhich the United States is a party or has a direct and substantial interest. 1 88

* Part C discusses 18 U.S.C. § 207, which restricts the post-employmentactivities of former federal and D.C. government employees. 189

* Part D discusses 18 U.S.C. § 208, which prohibits executive branchofficials from participating in matters that affect their financial interest. 190

* Part E discusses 18 U.S.C. § 209, which prohibits executive branch officialsfrom receiving salaries from sources other than the United Statesgovernment. 191

* Part F discusses 18 U.S.C. § 216, which outlines the penalties for violating

the offenses in §§ 203-209.192

A. Unauthorized Compensation

18 U.S.C. § 203 criminalizes the use of public office for private gain. Thedefendant may either be the public official receiving unauthorized compensationor the individual attempting to influence a public official. 193

1. Elements of the Offense

To obtain a conviction under § 203, the government must prove that (i) a personcovered by the statute (ii) in connection with a particular matter in which influencewas sought (iii) demanded, sought, accepted, agreed to receive, or knowinglygave, promised, or offered compensation (iv) with corrupt intent (v) to provide orpay for services before a particular governmental forum. 194

188. Id. § 205.

189. Id. § 207.190. Id. § 208.

191. Id. § 209.

192. Id. § 216.193. Id. § 203(a) (b). For a comprehensive discussion of section 203, as well as comparisons of it to section

205 and others, see generally Roswell B. Perkins, The New Federal Conflict- of-Interest Law, 76 HARV. L. REV.

1113 (1963). See also Kenneth A. Gross, The Enforcement of Campaign Finance Rules: A System in Search of

Reform, 9 YALE L. & POL'Y REV. 279, 296-98 (1991) (discussing applicability of § 203 to campaign contributions

made as improper forms of compensation and suggesting that it should be "vigorously enforced by federal

prosecutors").

194. 18 U.S.C. § 203; see also United States v. Myers, 692 F.2d 823, 855 (2d Cir. 1982) (discussing the

statutory genealogy of § 203 and suggesting Congress passed its earliest predecessor in 1864 primarily to prevent

government officials from "being paid to bring their influence to bear on federal agencies"); United States v.

Evans, 572 F.2d 455, 480 (5th Cir. 1978) (stating that the purpose of § 203 is "to reach any situation in which the

judgment of a government agent might be clouded because of payments or gifts made to him by reason of his

position").

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a. Coverage

Section 203 covers all individuals employed by the federal government,including members of Congress, federal judges, and employees of the executive,legislative, and judicial branches,1 95 as well as individuals employed by theDistrict of Columbia 9 6 and special government employees.1 97 Section 203 alsocovers individuals who knowingly give, promise, or offer compensation to publicofficials for representational services rendered or to be rendered in the future.19 8

A special government employee is subject to the statute only in relation tomatters in which the individual "participated personally and substantially as aGovernment employee" and matters "pending in the department or agency.., inwhich such employee is serving."1 99 It is generally believed that independentcontractors do not fall under the definition of special government employees.20 0

For the purposes of § 203, military reserve officers are "regular officers" whentheir tours of duty aggregate to more than 130 days per 365-day period.20 1

However, § 203 exempts individuals representing family members or otherpersonal fiduciaries, with or without compensation, except in matters in which theindividual has participated personally and substantially as an employee and inmatters that are the subject of the individual's official responsibility.20 2 Further-more, the statute exempts special government employees working under grants or

195. See 18 U.S.C. § 203(a)(1)(A) (B). See generally Jeffrey Green, History of Conflicts of Law, 26 HAMLINEL. REV. 555, 558 63 (2003) (discussing history and scope of § 203).

196. 18 U.S.C. § 203(b)(1).

197. Id. § 203(c); see United States v. Baird, 29 F.3d 647, 649 51 (D.C. Cir. 1994) (discussing the scope of thespecial government employee classification); Starr v. Mandanici, 152 E3d 741, 752 n.25 (8th Cir. 1998) (Loken,

J., concurring) (stating independent counsel are special government employees).

For the purposes of § 203, a special government employee is defined as the following:

"[A]n 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 full-time or intermittent basis, a part-time United States commis-

sioner, 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 § 594(c) of title 28[.]"

18 U.S.C. § 202(a).

198. 18 U.S.C. § 203(a)(2), (b)(2) (2012).

199. Id. § 203(c)(1) (2).

200. See Jeffrey Lovitky, The Problems of Government Contracting for Consulting Services, 14 PUB. CONT.L.J. 332, 345-46 (1984) (arguing federal conflict of interest prohibitions are not as extensive for special

government employees and that it is generally believed that independent contractors do not fall within the scope

of these laws).

201. See Baird, 29 F.3d at 650 51 (finding that, because reserve Coast Guard officer's aggregated tours of duty

totaled more than 130 days during a 365-day period, he was a "regular officer" pursuant to § 203(a), not special

government employee under § 203(c)).

202. 18 U.S.C. § 203(d) (2012).

2016] PUBLIC CORRUPTION 1645

contracts for the benefit of the national interest20 3 and individuals giving testimonyunder oath or statements under penalty of perjury.204 Finally, 18 U.S.C. § 206exempts retired military officers who are not otherwise government employees.2 °5

An individual may be convicted for conspiracy to violate § 203 by acceptingprohibited compensation even if he or she only anticipates becoming, but neveractually becomes, a public official.20 6

b. Particular Matter

Section 203 prohibits public officials from accepting compensation for represen-tational services in relation to a "particular matter" in which the United States is aparty or has a direct and substantial interest.20 7 Although the contract, claim,controversy, charge, or other matter of governmental interest must be particular-ized,208 the government need not identify one specific contract or claim for whichthe defendant offered to provide, or offered compensation for, representationalservices.20 9 For instance, a general description of potential future contracts wouldsuffice.210 Some circuits have held that § 203 has been violated even in caseswhere a public official lacked the authority to perform an act to benefit the donorand where no particular contract award was pending,2 11 but the Supreme Court has

203. See id. § 203(e) (stating the statute does not prevent special government employees from performing

work under a grant or contract for 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").

204. Id. § 203(f); Kelly v. Pan. Canal Comm'n, 26 E3d 597, 603 (5th Cir. 1994).

205. 18 U.S.C. § 206.

206. See United States v. Wallach, 935 F.2d 445, 469 71 (2d Cir. 1991) (finding that, although none of the

parties agreeing to commit a conspiracy were federal employees, § 203 was applicable because the parties had

anticipated that one of them would become a federal employee).

207. See 18 U.S.C. § 203(a)(1) (describing "particular matter" as "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").

208. See United States v. Williams, 705 F.2d 603, 622 (2d Cir. 1983) (noting that the phrase "other particular

matter" in 18 U.S.C. § 203(a)(1) "has the effect of causing the adjective 'particular' to modify all of the precedingnouns, including 'contract."').

209. See id. (holding it is sufficient for the government to show that compensation was "received for services

to be rendered with respect to a particular category of contracts").210. See Wallach, 935 F.2d at 469 72 (holding that indictment referencing Department of Defense contracts

with defendant generally, not identifying each contract individually, satisfied the particularity requirement of

§ 203); Williams, 705 F.2d at 622 (holding that future proceedings not yet pending are a "particular matter" for

purposes of § 203(a)(1)(B), and "need not be narrowed to just one identified contract, which might not be known

until a proceeding involving the contract was actually pending").

211. See United States v. Evans, 572 F.2d 455, 481 (5th Cir. 1978) (en banc) ("[I]t is immaterial that the

donee-official's position is ministerial or subordinate, or even that he actually lacks the authority to perform an act

to benefit the donor."); see also United States v. Myers, 692 F.2d 823, 853 n.26 (2d Cir. 1982) (stating that § 203

does not mandate that jury instructions include the charge that a proceeding, in relation to which services are

rendered, must be pending before a governmental forum at the time compensation is received); cf United States v.

Mitchell, 993 F.2d 229 at *5 (4th Cir. Apr. 30, 1993) (stating that 18 U.S.C. § 201(c)(1)(B) does not require that

the public official "have the power to provide the official act in question to be convicted under the statute").


suggested that the statute should be construed more narrowly.2 12

c. Compensation

A violation of § 203 requires that compensation be demanded, sought, received,accepted or agreed upon by a public official or knowingly given, promised oroffered to a public official.2 13 While compensation may be in the form of cash, itmay also include things of value such as airline tickets,2 14 loans,21 5 or even sex.2 16

The Tenth Circuit has held that "the government employee [need only] receivecompensation, otherwise than as provided by law." 2 17

d. Intent

Specific intent is not a requisite element of § 203(a).2 18 Thus, "[t]he gravamen of[§ 203] is not an intent to be corrupted or influenced, but simply the acceptance ofan unauthorized compensation.,2 19 In order to prevent unfair prejudice, however,the D.C. Circuit has allowed a defendant to rebut evidence that he manifestedintent to be corrupted when the government presented such evidence.2 20 Inaddition, defendant-payors, as opposed to defendant-payees, may argue from thestatutory language that scienter is required.2 2 1

212. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 412, 414 (1999) (holding that 18

U.S.C. § 201(c)(1)(A) requires "a link between a thing of value conferred upon a public official and a specific

'official act' and suggesting that conflict of interest statutes should be construed narrowly). See generally Peter

J. Henning, Public Corruption: A Comparative Analysis of International Corruption Conventions and UnitedStates Law, 18 ARIZ. J. INT'L & COMp. L. 793, 829 37 (2001) (discussing the gratuities prohibition at §201(c) and

asserting that the Supreme Court in Sun-Diamond "essentially eliminated the criminal prohibition on gratuities

when the transfer takes place before an official act.").

213. See 18 U.S.C. § 203(a)(1) (2) (2012); see also Myers, 692 F.2d at 859 n.36 ("[S]imply an agreement to

receive money, rather than actual receipt would violate ... [section] 203.").

214. See, e.g., Evans, 572 F.2d at 481 82 (concluding that airline tickets are a form of illegal compensation).

215. See, e.g., United States v. Williams, 705 F.2d 603, 606-07 & n.2 (2d Cir. 1983) (affirming conviction for

seeking and agreeing to receive a loan in violation § 203(a)).

216. See United States v. Moore, 525 F.3d 1033, 1048 (lth Cir. 2008) (finding sex to be a thing of value

because "monetary worth is not the sole measure of value.").217. United States v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987).

218. Evans, 572 F.2d at 481.

219. Id.; see also United States v. Alexandro, 675 F.2d 34, 43 (2d Cir. 1982) (discussing the significance ofintent with respect to § 203(a) and how it differs from § 201).

220. See United States v. Baird, 29 E3d 647, 653 54 (D.C. Cir. 1994) ("[T]he government 'opened the door'

on the matter of defendant's state of mind .... [O]nce the door is opened, the other party can get through it

otherwise irrelevant evidence 'to the extent necessary to remove any unfair prejudice which might otherwise have

ensued."' (quoting United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990))).

221. See Baird, 778 E Supp. at 537 (D.D.C. 1990) (surmising that the reason for this difference in statutory

language is that Congress intended to "treat government employees receiving payments.., more harshly than

donors of such payments"), rev'd on other grounds , 29 F.3d 647 (D.C. Cir. 1994); see also Stern v. Gen. Elec. Co.,

924 F.2d 472, 478 (2d Cir. 1991) ("Criminal intent under § 203 turns ... on what the contributor expects to

receive for that money."). Compare 18 U.S.C. § 203(a)(1) (2012) ("Whoever ... directly or indirectly (1)

demands, seeks, receives ...."), with 18 U.S.C. § 203(a)(2) ("Whoever... knowingly gives, promises, or

offers ...").


e. Forum

The most complicated issues arising from § 203 concern the scope of the forum:namely, whether the statutory list of forums in § 203(a) is exclusive,222 andwhether officials are prohibited from providing only representational services, orboth representational services and advice.223

Addressing the first question, the Second Circuit has previously stated that,because Congress's intention in enacting § 203 is unclear, one should construe§ 203(a)(1) as reaching only "services performed or to be performed before thefederal forums listed in the statute.,224 Subsequently, however, the Second Circuitfound that § 203 is violated by "services rendered indirectly through anotherfederal official., 225 While the court reaffirmed that the list of forums in § 203 isexclusive,226 it held that the statute nonetheless applies when one compensatedofficial influences another federal official to provide services before a forum listedin § 203.227 In contrast, the Tenth Circuit has held that § 203(b) "is not limited tofederal employees appearing before the federal forums enumerated in § 203(a).228

The second issue concerns the types of services that a government official isprohibited from providing under § 203(a)(1).229 Originally, officials were allowedto give advice without running afoul of § 203,230 but since the passage of the EthicsReform Act of 1989231 "any compensation for any representational services, asagent or attorney or otherwise" is specifically prohibited by § 203.232 The EthicsReform Act additionally added "courts" to the forums listed in §203(a)(1).233

222. See 18 U.S.C. § 203(a)(1) (listing as forums "any department, agency, court, court-martial, officer, or any

civil, military or naval commission").

223. See infra text accompanying notes 224 27 (discussing the service requirement).

224. See United States v. Myers, 692 F.2d 823, 857 58 (2d Cir. 1982) (reversing § 203 conviction where

defendant provided compensated advice but jury instructions failed to limit the term "services" to those that

would be performed before the forums listed in the statute).

225. See United States v. Wallach, 979 F.2d 912, 920 (2d Cir. 1992) (holding that a compensated government

employee's attempt, on the payer's behalf, to convince another government employee to influence a third

governmental party before a forum listed in § 203 violated § 203(a)(1)).226. Id.

227. Id. ("Congress wished to punish a federal official who accepts compensation not only for services

rendered directly before the department where a contract decision is pending but also for services renderedindirectly through another federal official.").

228. See United States v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987) (concluding that § 203(b) does not

require that the defendant appears before a forum enumerated in § 203(a)).

229. See 18 U.S.C. § 203(a)(1) (2) (2012) (proscribing receipt or giving of compensation for "representational

services").

230. United States v. Myers, 692 F.2d 823, 858 (2d Cir. 1982).

231. Ethics Reform Act, Pub. L. No. 101-194, 103 Stat. 1716 (as amended by Act of May 4, 1990, Pub. L. No.

101-280, §§ 2(a), 5(d), 104 Stat. 149, 149 52, 159 (adding technical corrections to the Ethics ReformAct of 1990,

Pub. L. No. 101-509, Title V, §529, 104 Stat. 1389, 1440-41 (conforming Ethics Reform Act of 1989 to Federal

Employees Pay Comparability Act of 1990))).

232. Id. § 402; see supra Section III.A.1.c (discussing compensation as an element of § 203).

233. Ethics Reform Act § 402.


2. Defenses

Defenses that apply to bribery and illegal gratuity provisions also apply toprosecutions under § 203.234 Additionally, a common law defense has emergedthat is grounded in reliance on an official's misstatement of the law and is availableto a defendant who: "(i) reasonably, on the basis of an objective standard, (ii) relieson a (iii) conclusion or statement of law (iv) issued by an official charged withinterpretation, administration, and/or enforcement responsibilities in the relevantlegal field.",2 35 In cases involving government undercover operations, defendantsalso may assert that the government's behavior was so "outrageous" as to violateDue Process,2 36 but only in rare cases, if any, will such claims be successful.2 37

B. Limitations on Activities of Government Officers and Employees

Section 205 prohibits a government employee from prosecuting any claimagainst the government or acting as an agent for any individual or groupprosecuting a claim in which the United States is a party or has a direct andsubstantial interest, other than in the discharge of his or her official duty.2 38 Thepurpose of this provision is "to prevent federal employees from using privategovernment information to assist persons who have claims against the UnitedStates.,2 39 However, some have criticized § 205 for exceeding the purpose byprohibiting a wider variety of pro bono activities by federal employees thanintended.240

Section 205 covers the same proceedings and forums that are covered by§ 203,241 which prohibits government employees from receiving unauthorizedcompensation in exchange for representational services in matters affecting an

234. See supra Section II.B (discussing available defenses for bribery and illegal gratuity charges under

§ 201).

235. See United States v. Baird, 29 F.3d 647, 654 (D.C. Cir. 1994) (quoting United States v. Barker, 546 F.2d940, 955 (D.C. Cir. 1976) (Merhige, J., concurring)) (applying the "official misstatement of the law" defense to a

reserve officer who relied on the word of a superior officer, who in turn had verified legality of the action inquestion with Coast Guard legal and contracting officials); accord MODEL PENAL CODE § 2.04(3)(b) (Official

Draft 1985) (listing similar requirements for defense of reasonable reliance on an official statement).

236. United States v. Carpentier, 689 F.2d 21, 25 (2d Cir. 1982) (citing United States v. Russell, 411 U.S. 423,431 32 (1973)).

237. United States v. Tucker, 28 E3d 1420, 1423 (6th Cir. 1994) (citing Hampton v. United States, 425 U.S.

484, 489 (1976)).

238. 18 U.S.C. § 205(a)(2) (2012). See generally Van Ee v. EPA, 202 F.3d 296, 305-08 (D.C. Cir. 2000)

(discussing legislative history of § 205). For a discussion of the history, impetus, and consequences of § 205, see

Philip Luci, Jr., Contracting with Government Employees: An Overly Restrictive Rule, a Comparison, and a

Compromise, 27 PUB. CONT. L.J. 37, 72 (1997).).239. DeMarrias v. United States, 713 F. Supp. 346, 347 (D.S.D. 1989).

240. See, e.g., Carolyn Elefant, When Helping Others Is a Crime: Section 205's Restriction on Pro Bono

Representation by Federal Attorneys, 3 GEO. J. LEGAL ETHICS 719, 720 (1990) (critiquing the policy decision to

criminalize pro bono work by federal employees).

241. See 18 U.S.C. §§ 203(a), 205(a) (2012).

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interest of the United States. 2 Unlike § 203, however, § 205 focuses not onreceiving unauthorized compensation, but on preventing impermissible representa-tional activity by government officials.A3

1. Coverage

Section 205 applies to federal executive, legislative, and judicial branchemployees, as well as employees of any agency of the United States244 andindividuals employed by the District of Columbia.45 It also provides for limitedapplication to "special Government employee[s].' ' 246 According to the statute, aspecial government employee is subject to the § 205 restrictions only if he or sheparticipated "personally and substantially" in the covered matter while a govern-ment employee,247 or if the covered matter was pending in the department oragency in which the employee was serving.248 The statute, however, provides anexception from § 205(c)(2) for special government employees who have served inthe department or agency for no more than sixty days during the immediatelypreceding year.249

Congress amended § 205(d)(1)(B) in 1996 to allow federal employees torepresent, without compensation, certain non-profit organizations25° before thegovernment "if a majority of the ... members are current officers or employees ofthe United States or of the District of Columbia... .,,251 However, a federal

242. See United States v. Myers, 692 F.2d 823, 856 (2d Cir. 1982) (comparing §§ 203 with 205 and noting,

prior to the Ethics Reform Act of 1989, §§ 203 and 205 covered the same proceedings and similar forums).

243. See id. (stating that officials are prohibited from acting as agents or attorneys even if they receive no

compensation); see also supra Section III.A.l.c (discussing compensation element of § 203). Compare 18 U.S.C.

§ 205(a)(1) (2) (making no mention of compensation), with 18 U.S.C. § 203(a)(1) (2) (requiring that compensa-

tion be demanded, sought, received, accepted or agreed upon by a public official or knowingly given, promised or

offered to a public official). See generally Elefant, supra note 240, at 725 26 (discussing history and scope of

§ 205).

244. 18 U.S.C. § 205(a).

245. Id. § 205(b).246. See id. § 205(c) (limiting application to covered matters "involving a specific party or parties"); id.

§ 202(a) (defining special government employee as "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 employed with or without pay for not more than 130 days during any 365-day period").

247. Id. § 205(c)(1) (stating that a special government employee only is subject to the restrictions of § 205(a)

and (b) if such employee 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" in the matter in question).

248. Id. § 205(c)(2).

249. Id. § 205(c).

250. Id. § 205(d)(1)(B) (non-profits include "cooperative, voluntary, professional, recreational, or similar

organization or group").

251. Federal Employee Representation Improvement Act of 1996, Pub. L. No. 104-177, § 2, 110 Stat. 1563

(1996) (amending 18 U.S.C. § 205(d)(1)(B)). Congress intended this amendment to allow government employees

who also were members of employee associations to voice their opinions before the government.

2016] 1649


employee is still precluded from acting as an agent2 52 in any covered matter notlimited to adversarial proceedings253 that: (i) is a claim against the federal or D.C.government; (ii) is "a judicial or administrative proceeding where the ... group isa party"; or (iii) "involves a grant, contract, or other agreement ... providing forthe disbursement of Federal funds to the organization or group.254

2. "Particular Matter" and "Agency"

The federal appellate courts have addressed both the scope of § 205255 and themeaning of the term "agent" in the statute.256 The D.C. Circuit, for example,analyzed the "particular matter" requirement of § 205 in Van Ee v. EPA,25 7 anddetermined that Congress did not intend to bar a federal employee from represent-ing outside interests in all matters in which the United States has an interest.25 8 InVan Ee, an employee of the EPA challenged the agency's determination that he wasprohibited by § 205 from communicating with various federal agencies as part ofhis volunteer work for the Sierra Club.2 59 The court concluded that the scope of§ 205 turns on the "nature and focus of the governmental decision to be made oraction to be taken as a result of the proceeding," and that "[o]nly where thedecision is focused on a probable particularized impact on discrete and identifiableparties are the concerns animating § 205 implicated.,260 Accordingly, the courtconcluded that federal employees may represent other groups in connection withbroad policy matters.261

Other courts have also interpreted the term "agency." A person acts as an agentwhen he seeks to influence agency decision-making on behalf of another organiza-

252. 18 U.S.C. § 205.

253. See id. § 205(h) (stating that covered matter is "any judicial or other proceeding, application, request for a

ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other

particular matter"); see also Van Ee v. E.P.A., 202 F.3d 296, 302 (D.C. Cir. 2000) (interpreting "other particular

manner" to apply to more than adversarial proceedings).

254. 18 U.S.C. § 205(d)(2)(A) (C).255. See Van Ee, 202 E3d at 302 (holding that the scope of "particular matter" within the meaning of

§ 205(a)(2) is not limited to "adversarial proceedings or formal legal relationships").

256. See O'Neill v. Dep't of Hous. & Urban Dev., 220 E3d 1354, 1360 63 (Fed. Cir. 2000) (interpreting term"agent" in § 205 in absence of statutory definition).

257. Van Ee, 202 F.3d at 301 02.

258. See id. at 302 03 (concluding that § 205 applies to matters "in which the governmental decision at stake is

focused on conferring a benefit, imposing a sanction, or otherwise having a discernable effect on the financial or

similarly concrete interests of discrete and identifiable persons or entities").

259. Id. at 300.

260. Id. at 309.

261. Id. (noting that while the land use decisions might have an impact on the general environmental interests

of the Sierra Club, the interest in environmental issues implicates too large and diverse a population of people to

be defined as a "particular matter" under the statute). Id. at 310; see also id. at 303 04 (citing similar

interpretations expressed in opinions of the Office of Government Ethics and the Department of Justice's Office of

Legal Counsel).

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262tion. A person is regarded as an agent when that person has consented to act onbehalf of another, subject to the other's control.2 63 The agency of an employee maydepend upon his or her actions during the proceedings at issue.2 64 An employee isnot, however, prevented from joining an organization, maintaining a leadershipposition, or representing the organization in non-governmental proceedings.265

3. Exceptions

Section 205 includes several exceptions for certain activities that do not runafoul of § 203. The first exception is a pro bono clause, which allows governmentemployees to provide unpaid representation to a "person who is the subject ofdisciplinary, loyalty, or other personnel administration proceedings" if it is notinconsistent with the employees' duties.26 6 Congress created this exception "topreserve government employees' ability to accept the obligation of defending thehonor or reputation of an accused employee."26 7 Furthermore, the pro bonoexception ensures that government employees with grievances against theiremployer-agency will have representation in those proceedings without having tohire a private attorney.26" This exception, however, has been interpreted asapplying only to administrative proceedings and not to representation before acourt.

2 6 9

An additional exception to § 205 allows special government employees torepresent parties who are grant recipients or who are under contract with theUnited States, if the head of the agency associated with the contract certifies inwriting that such representation is necessary "and publishes such certification in

262. See O'Neill v. Dep't of Hous. & Urban Dev., 220 F.3d 1354, 1360 (Fed. Cir. 2000) (holding that in

absence of statutory definition, common-law meaning of "agent" should be used in deciding whether government

employee is acting as agent for purposes of § 205); see also Refine Constr. Co. v. United States, 12 Cl. Ct. 56, 61

(1987) (holding that "agent" is broadly-defined term where one is authorized to act for another).

263. See O'Neill, 220 F.3d at 1360 (holding that in absence of statutory definition, common-law meaning of

"agent" should be used in deciding whether government employee is acting as agent for purposes of § 205); see

also Refine Constr. Co., 12 Cl. Ct. at 61 (holding that "agent" is broadly-defined term where one is authorized toact for another).

264. See United States v. Schaltenbrand, 930 F.2d 1554, 1561 (1 lth Cir. 1991) (concluding that defendant was

not agent where he attended covered meeting but did not participate).265. Van Ee, 202 F.3d at 304.

266. 18 U.S.C. § 205(d)(1)(A) (2012); see also Bachman v. Pertschuk, 437 F. Supp. 973, 976 (D.D.C. 1977)

(recognizing pro bono exception to § 205 in administrative proceeding); cf United States v. Bailey, 498 F.2d 677,

680 (D.C. Cir. 1974) (holding that two law students who also worked for the government were prohibited from

participating in an appellate litigation clinic representing indigent clients because of the potential for a conflict of

interest between their duties to their employers and their duties to their clients). See generally Elefant, supra note

240, at 734-40 (proposing further amendment to the pro bono exception of § 205 to ensure that government

employees are able to participate in pro bono activities).

267. Elefant, supra note 240, at 729.

268. See Lisa G. Lerman, Public Service by Public Servants, 19 HOFSTRA L. REV. 1141, 1170 71 (1991).

269. Bachman, 437 F. Supp. at 976; see also Lerman, supra note 268, at 1189 92 (analyzing the scope of

§ 205's pro bono exception clause in case law).


the Federal Register.,270 As explained by the statute's legislative history, thisexception covers situations "involving the national interest where an intermittentemployee's special knowledge or skills may be required by his employer or otherprivate person to effect the proper performance of a Government contract butwhere his services may be unavailable in the absence of a waiver of section205."271

The final exception to § 205 permits full- and part-time government agencyemployees to testify under oath, even in a case against the United States, or tomake statements required under penalty of perjury or contempt.272

C. Limitations on "Revolving Door" Post-Employment Activities

Section 207,273 known as the "revolving door statute," forbids former federaland D.C. government employees from participating in certain lobbying and otherrepresentational types of employment activities after they leave governmentservice.2 74 The statute serves to protect the government by restricting opportunitiesfor former government employees to use proprietary information, acquired throughtheir service, against the government on behalf of private parties.275 It also isintended to prevent former federal officials from using, or appearing to use, their"inside" knowledge and connections in order to profit in the private sector bycorruptly influencing legislative and administrative governmental processes.27 6

The Ethics Reform Act of 1989 expanded § 207 by extending its reach tolegislative branch employees, including members of Congress.277 Covered appoin-tees are forbidden to lobby any employee or officer of their former agency for aperiod of five years after the termination of their employment.278 As with the other

270. 18 U.S.C. § 205(f).

271. S. REP. No. 87-2213, at 11 (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3860.

272. 18 U.S.C. § 205(g); Kelly v. Pan. Canal Comm'n, 26 F.3d 597, 603 (5th Cir. 1994); see also United States

v. Lecco, 495 F. Supp. 2d 581, 588 89 (S.D. W. Va. 2007) (quoting DeMarrias v. United States, 713 F. Supp. 346,

347 (D.S.D. 1989) (recognizing § 205 does not prohibit part-time government agency employee from testifying in

case against United States because "§ 205 expressly states that '[n]othing herein prevents an officer or employeefrom giving testimony under oath')).

273. 18 U.S.C. § 207 (2012).

274. See generally Paul Josephson and Andrew Weiming Lee, Taking the Leap from Public Service to PrivateSector, NEW JERSEY LAWYER, Feb. 2015, at 30 (providing a comprehensive discussion of § 207, comparing it with

a similar New Jersey statute).

275. JACK MASKELL, CONG. RESEARCH SERV., POST-EMPLOYMENT, "REVOLVING DOOR," LAWS FOR FEDERAL

PERSONNEL 2 (2014) (noting in upholding the constitutionality of § 207(a) that "the purpose of protecting the

government, which can act only through its agents, from the use against it by former agents of information gained

in the course of their agency, is clearly a proper one." (quoting United States v. Nasser, 476 F.2d 1111, 1116 (7th

Cir. 1973))).

276. Id.

277. 18 U.S.C. § 207(e); see Grant Dawson, Working Guidelines for Successive Conflicts of Interest Involving

Government and Private Employment, 11 GEO. J. LEGAL ETHICS 329, 339-42 (1998) (describing the EthicsReform Act of 1989 and its effect on section 207).

278. Office of Government Ethics Authorization Act of 1996, Pub. L. No. 104-179, § 5, 110 Stat. 1566 (1996).

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PUBLIC CORRUPTION

conflict of interest statutes, the penalties for a § 207 violation are delineated in§ 216.279 Ethics rules imposed by the Honest Leadership and Open GovernmentAct of 2007 further restrict post-employment lobbying by members of Congress.280


Section 207 contains multiple subsections that impose distinct restrictions onpost-employment activities by former executive and legislative branch employees.Subsections (a)-(e) set forth the elements required to prove each offense.281

Sections 207(a)(1)-(2) ban former federal and D.C. executive branch employ-ees from "switching sides" on certain matters they participated in or supervisedduring their government service.282 Section 207(a)(1) imposes a lifetime banforbidding former government employees from representing private parties incertain matters in which they participated "personally and substantially" asgovernment employees.28 3 Section 207(a)(2) imposes a two-year cooling-offperiod prohibiting representation of private parties on certain matters that wereunder the former employee's supervisory control during the year prior to his or herleaving government service.284

To obtain a conviction under either § 207(a) or 207(b), the government mustprove that (i) a person covered by the statute, (ii) appeared before or communi-cated with any federal or D.C. government officer or employee, (iii) in relation to aparticular matter in which the United States or the District of Columbia has a directand substantial interest, (iv) and that the defendant's representation was knowing.285

To prove a violation of § 207(a), the government also must show that (v) thedefendant participated "personally and substantially" on the particular matter as a

279. 18 U.S.C. § 216 (2012).

280. See Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, § 101, 121 Stat. 735

(2007) (amending 18 U.S.C. § 207) (limiting the "revolving door" by requiring a "cooling-off' period so that

congressional members must wait one to two years after leaving their jobs before lobbying their former

colleagues).

281. 18U.S.C. § 207(a) (e) (2012).

282. Id. § 207(a)(1) (2).283. Id. § 207(a)(1); see United States v. Clark, 333 E Supp. 2d 789, 794 (E.D. Wis. 2004) (defining

"personally" as directly and "substantially" as significant "to the matter, or form[ing] a basis for a reasonable

appearance of such significance."); see also United States v. Rosen, 599 E Supp. 2d 690, 699 700 (E.D. Va. 2009)(holding a former DOD employee did not participate "substantially" in a prior matter when he offered no advice,

assistance, or recommendations on the matter and had only a few brief meetings with prosecutors on the issue).

284. 18 U.S.C. § 207(a)(2); see United States v. Tapp, No. CR107-08, 2008 WL 345717, at *2 3 (S.D. Ga.

Feb. 6, 2008) (holding a former Assistant United States attorney was precluded from representing defendant

because the matter was "actually pending" prior to the attorney's departure from the United States Attorney's

Office); see also United States v. Spellissy, No. 805CR475T27TGW, 2006 WL 1232807, at *6 7 (M.D. Fla. May

5, 2006) (finding probable cause for a § 207(a)(2) violation when an affidavit indicated that a retired United States

Army colonel, within two years of termination of service, had represented a defense contractor who had been

considered for procurement previously under the colonel's official responsibility).

285. 18 U.S.C. § 207; see also United States v. Coleman, 805 F.2d 474, 478 (3d Cir. 1986) (setting forth the

elements of a § 207(b) violation); Robert E. Derecktor of R.I., Inc. v. United States, 762 F. Supp. 1019, 1026

(D.R.I. 1991) (applying factors set out in Coleman in § 207(b) prosecution).

2016] 1653


government employee.286To prove a violation of § 207(b), the government must show, in addition to the

four elements previously enumerated, that (v) the defendant knew, or reasonablyshould have known, that the particular matter was "pending under his or herofficial responsibility" during the year prior to the defendant's leaving governmentservice.2 87

Section 207(b) restricts participation by former federal executive branch employ-ees, members of Congress, and legislative branch employees in trade or treatynegotiations for a period of one year after they leave government service.2 8 Toobtain a conviction under § 207(b), the government must show that: (i) a personcovered by the statute; (ii) knowingly; (iii) represented, aided, or advised anotherperson; (iv) concerning any ongoing trade or treaty negotiation; (v) that thedefendant participated in "personally and substantially" as a government em-ployee; (vi) and about which the defendant learned information exempt fromdisclosure under 5 U.S.C. § 552.289

Section 207(c) imposes a one-year restriction prohibiting certain former high-level federal executive branch and independent agency employees from represent-ing any other person before the department or agency in which such personserved.290 A violation of § 207(c) requires that: (i) a person covered by thesubsection, (ii) communicated to or appeared before any officer or employee of thedepartment or agency where the defendant worked in the prior year, (iii) on behalfof another person seeking official action by an officer or employee of suchdepartment, and (iv) with the intent to influence such officer or employee.

Section 207(d) restricts the lobbying activities that senior executive branchpersonnel may engage in for a two-year period after their termination from thatposition.29 1 To prove a violation of § 207(d), the government must show that: (i) aperson covered by the statute, (ii) contacted any executive branch appointee listedin § 207(d)(2)(B) or any officer or employee of a department or agency where theperson worked within one year before he or she left government service; (iii) withthe intent to influence that person; (iv) on behalf of any other person; (v) inconnection with any matter on which such person seeks official action by anexecutive branch employee.29 2

286. 18 U.S.C. § 207(a)(1)(B). See also U.S. v. Rosen, 599 E Supp.2d 690, 698 (E.D. Va. 2009) (describing the

elements needed to prove a violation of 207(a)(1).

287. Id. § 207(a)(2)(B).

288. Id. § 207(b).

289. Id.

290. Id. § 207(c).

291. Id. § 207(d).

292. Id.

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PUBLIC CORRUPTION

Section 207(e)(1)(A), as amended by the Honest Leadership and Open Govern-ment Act of 2007,293 provides similar restrictions applicable to senators for twoyears after they leave office.2 94 To prove a violation of § 207(e)(1)(A), thegovernment must show that: (i) a former senator; (ii) contacted any member,officer, or employee of Congress or any other legislative office of Congress; (iii)with the intent to influence that person; (iv) on behalf of any other person; (v) inconnection with any matter on which such person seeks official action by anexecutive branch employee.295 Section 207(e)(1)(B) similarly applies to members,officers, and employees of the House of Representatives, but applies for only oneyear after they have left office.2 9 6 Subsections (e)(2)-(6) impose restrictions onactivities by former officers and employees of the legislative branch, all applicablefor up to one year after they have left office.29 7

a. Coverage

Section 207 covers conduct by former federal and D.C. executive branchemployees, federal legislative branch employees, members of Congress, andspecial government employees in the federal executive branch.298 Former govern-ment employees are subject to the statute's restrictions for periods ranging fromone year after they leave government service to life.29 9

The length of the ban imposed by § 207 depends primarily upon the positionheld with additional restrictions based on the matter the former employee hasallegedly attempted to influence. Former federal and D.C. executive branchemployees are covered under § 207(a), which bans communication for life aboutmatters the former employee dealt with "personally or substantially,,300 whereascommunications about matters "pending under [the employee's] official responsi-bility" are prohibited for two years after termination of employment.301

Former federal executive and legislative branch employees, including membersof Congress, are covered under § 207(b), for one year after they leave governmentservice.30 2 One-year coverage under § 207(c) also applies to the limited class ofhigh-level executive branch and independent agency employees determined by

293. Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735 (2007)

(amending 18 U.S.C. § 207(e)(1) entirely).

294. 18 U.S.C. §207(e)(1)(A); Pub. L. No. 110-81, 121 Stat. 735.

295. 18 U.S.C. § 207(e)(1)(A).

296. Id. § 207(e)(1)(B); Pub. L. No. 110-81, 121 Stat. 735 (adding this distinction between Senators and House

Members to section 207(e)(1)(B)).

297. 18U.S.C.§ 207(e)(2) (6).

298. Id. § 207(a) (e).

299. See id. § 207(a) (e) (stating that restrictions may be imposed for one year, two years, or permanently).

300. Id. § 207(a)(1)(B).

301. Id. § 207(a)(2)(B).

302. Id. § 207(b).

2016] 1655


position, pay grade, and tenure of employment under § 207(c)(2).3 °3

Section 207(d) imposes a two-year ban restricting conduct by former verysenior executive branch personnel.30 4 Former employees covered by § 207(d)include the vice president,30 5 individuals employed at pay rate equivalent to level Iof the Executive Schedule or level II if employed in the Executive Office of thePresident,30 6 and certain presidential and vice presidential appointees.30 7

Section 207(e)(1)(A) applies to former United States senators for a period oftwo years after they leave office.30 8 Sections 207(e)(1)(B)-(6) apply to membersof the House of Representatives and officers and staff of the legislative branch for aone-year period following termination of their government service. These bans,however, do not apply to special government employees who worked less thansixty days in the year prior to leaving government service.30 9

Section 2070)(6) states that "[n]othing in this section shall prevent an individualfrom giving testimony under oath, or from making statements required to be madeunder penalty of perjury.,310 Notwithstanding this statement, the statute doesimpose certain limits on the ability of covered individuals to testify, exceptpursuant to court order.3 11 For instance, § 207(j)(6)(A) provides that a formerexecutive branch employee subject to the restrictions of § 207(a)(1) "with respectto a particular matter" may not, except under court order, serve as an expertwitness on that matter for any party other than the United States.312

Section 2070) lists several exceptions to otherwise prohibited conduct.3 13 Forexample, § 2070)(5) states that the statute does not apply to communications made

303. Id. § 207(c)(2).

304. Id. § 207(d).

305. Id. § 207(d)(1)(A).

306. Id. § 207(d)(1)(B).

307. Id. § 207(d)(1)(C).

308. Id.§ 207(e)(1)(A); see also Pub. L. No. 110-81, 121 Stat. 735 (adding this language to § 207(e)(1)(A)).

309. Id. § 207(c)(2)(B).

310. Id. § 207j)(6).

311. Id. § 207j)(6)(A) (B); see also EEOC v. Exxon Corp., 202 F.3d 755, 757 58 (5th Cir. 2000) (holding aformer government employee is typically barred from serving as an expert witness under the statute, unless there

is a specific court order directing the testimony of those former employees as experts).

312. 18 U.S.C. § 207(j)(6)(A); see Adams v. United States, No. CV-03-49-E-BLW, 2008 WL 5429801, at *3(D. Idaho Dec. 31, 2008) (holding that when deciding whether a court should issue an order permitting testimony

under § 207(j)(6)(A), the court should consider the impact of the exclusion of the expert on "[clourt proceedings

and the administration of justice" and to what extent "allowing the expert to testify [would] do violence to the

intent and policy behind § 207"); see also United States v. Lecco, 495 F. Supp. 2d 581, 588 89 (S.D. W. Va. 2007)

(noting the safe-harbor provision of § 207j) is "nearly identical to its counterparts in § 203 and § 205 ... [but it]

contains additional provisions restricting expert witness testimony by former federal employees"). But see United

States v. Rosen, 599 F Supp. 2d 690, 700 01 (E.D. Va. 2009) (holding that government employee was permitted

to testify as expert witness, not because of court order, but because a meeting with his former employer for an hour

to discuss general matters was too insubstantial to disable him from serving as an expert witness).

313. See 18 U.S.C. § 2070)(1) (7) (articulating exceptions for official conduct for federal, state, or local

governments; for institutions, hospitals, and organizations exempted under § 501(c)(3) of the Internal Revenue

Code; and for employees aiding an international organization with prior Secretary of State approval).

PUBLIC CORRUPTION

"solely for the purpose of furnishing scientific or technological information,"provided that the communication takes place according to "procedures acceptableto the department or agency concerned" or pursuant to a special certificationprocess.3 14 Furthermore, in 1996, § 207(j) was amended to allow former senior-level officials to leave their positions to represent a candidate for political office oran organization, and to contact, for the purpose of influencing, their formeragency.

315

b. Representative or Agent

Section 207 applies to instances in which a former official, acting as an agent orrepresentative of anyone else, has contact with the federal government knowinglyand with the intent of influencing the government.16 The key inquiry is whetherthe defendant actually represented another party after leaving federal employment.The Eleventh Circuit, applying principles of agency law, held that the defendantcould not be considered a representative or agent for purposes of § 207 because hedid not have "actual" or "apparent" authority to bind the principal.317 The FederalCircuit, Federal Claims Court, and the DC Circuit have also defined agent in thesame way, using its common law meaning.318 However, the Southern District ofNew York and DC District Court have adopted broader definitions.319

c. Direct and Substantial Interest of the United States

Section 207 provides that the United States must be a party to, or have a directand substantial interest in, a particular matter in order to successfully prosecuteunder § 207(a)(1) (permanent ban where defendant participated personally and

314. Id. § 207(j)(5).

315. Id. § 207(j)(7)(B) (C) (amended by Office of Government Ethics Authorization Act of 1996, Pub. L. No.

104-179, 110 Stat. 1566 (1996)).

316. Id. § 207(a).

317. United States v. Schaltenbrand, 930 F.2d 1554, 1560-1561 (lth Cir. 1991) (holding that defendant, a

former Air Force Reserve officer, did not violate § 207(a) because defendant's limited and insignificant role inmeeting between defendant's new employer, a private defense contractor, and Air Force did not amount to

representation on behalf of new employer); see also United States v. Clark, 333 E Supp. 2d 789, 795 (E.D. Wis.

2004) (holding that defendant's involvement in a supervisory capacity, taken as a whole, brought him within§ 207's reach because it created the "reasonable appearance" of significance, particularly when the defendant took

the critical step of issuing subpoenas); Robert E. Derecktor of R.I., Inc. v. United States, 762 E Supp. 1019, 1027

(D.R.I. 1991) (holding that defendant did not violate § 207 because he merely acted as a messenger and did not

make an "appearance" for representative purposes in his professional capacity).

318. O'Neill v. Dep't of Hous. & Urban Dev., 220 F.3d 1354, 1362 63 (Fed. Cir. 2000) (citing Refine Constr.

Co. v. United States, 12 Cl. Ct. 56, 61 (Cl. Ct. 1987) and United States v. Bailey, 498 F.2d 677, 679 (D.C. Cir.

1974)).

319. See Van Ee v. E.P.A., 55 F. Supp. 2d 1, 7 (D.D.C. 1999), rev'd on other grounds 202 F.3d 296 (2002)

(holding that a person is considered an agent if they "attend hearings and meetings on behalf of organizations,

and ... represent their views to federal agencies in an effort to influence their decision-making). See also United

States v. Sweig, 316 E Supp. 1148, 1157 (S.D.N.Y. 1970) (holding "the strict common-law notion of 'agency'

does not necessarily exhaust the meaning of the prohibition").

2016] 1657


substantially) or § 207(a)(2) (two-year ban where matter was pending underdefendant's official authority).320 The Seventh Circuit has held that the govern-ment's involvement in contract negotiations constitutes such a direct and substan-tial interest.321 Under this interpretation, parties, facts, and subject matter mustcoincide to trigger the prohibition. Direct and substantial has been interpretedbroadly to cover a "nucleus of operative facts. 322 Several courts have held that fora case to be a part of the "particular matter" that the United States has an interest in,the case must involve the same parties, the same subject matter, and substantiallyoverlapping facts.323

d. Knowledge

In order to sustain a § 207 conviction, the government must show that thedefendant acted with knowledge of and with the intent to influence the officer,agency, court, or department with which he communicates regarding a particularmatter.3 4 In United States v. Nofziger, a lobbyist formerly employed as apresidential aide sent a letter to the Deputy Counselor for the President, requestingthat a government contract be awarded to one of his firm's clients.325 After he wasconvicted under § 207, the lobbyist argued on appeal that he did not know that theUnited States had a "direct and substantial interest" in the matters addressed in hisletter.326 The D.C. Circuit agreed, holding that the mens rea of "knowingly"applied to all elements of a § 207 violation.327 Because the lobbyist did not knowthe United States had a "direct and substantial interest," the government failed toprove the required mens rea.

Section 207 also requires "intent to influence.,328 The Office of GovernmentEthics has proposed to define "intent to influence" to refer to communications or

320. 18 U.S.C. § 207(a)(1)(A), (a)(2)(A).

321. See United States v. Medico Indus., Inc., 784 E2d 840, 845-46 (7th Cir. 1986) (affirming that the

defendant retained an army procurement officer for contract modification negotiations in violation of § 207 and

that, where the United States has an interest, it may not be estopped from a § 207 claim due to the inaction or

wrong action of a subordinate official). But see United States ex rel. Siewick v. Jamieson Sci. & Eng'g, Inc., 214

E3d 1372, 1375 78 (D.C. Cir. 2000) (permitting a Navy employee to accept a position with a governmentcontractor with which he had previously associated).

322. Medico, 784 F.2d at 843; EEOC v. Exxon Corp., 202 F.3d 755, 757 (5th Cir. 2000).

323. See EEOC, 202 E3d at 757 58 (holding that a suit challenging the substance abuse policy of Exxon is thesame particular matter as the overall settlement negotiations between Exxon and the United States government, as

the substance abuse policy was at issue in both cases); see also Medico, 784 E2d at 843.

324. 18 U.S.C. § 207(a)(1) (2); see United States v. Nofziger, 878 E2d 442, 454 (D.C. Cir. 1989) (reversing

conviction because government had not proven defendant had knowledge of the facts that made his conduct

criminal); see also United States v. Baird, 29 E3d 647, 652 (D.C. Cir. 1994) (discussing "knowledge" in § 203context and stating Nofziger only required that the government prove defendant knew facts that made such

conduct criminal, not that he knew those facts added up to a crime).

325. Nofziger, 878 E2d at 444-45.

326. Id. at 446.

327. Id. at 454 (stating that, because there is no evidence that Congress intended § 207 to impose strict liability,

court must be guided by rule of lenity and presumption that mens rea is required).

328. 18 U.S.C. § 207(a)(1) (2).

1658 [Vol. 53:1619


329appearances seeking direct government action or affecting government actions.The definition includes silent appearances, but excludes requests for publiclyavailable documents, status inquiries, filing of tax returns, noncontroversial factualstatements or questions, and filing a Form 10-K.330

D. Acts Affecting Financial Interest

Section 208 generally prohibits an officer or employee of the executive branchfrom "personally and substantially" participating in "any particular matter" inwhich the officer, or the officer's spouse, general partner, or organization withwhich he or she is involved has a known financial interest.331 The purpose of § 208is "to insure honesty in the Government's business dealings by preventing federalagents who have interests adverse to those of the Government from advancingtheir own interests at the expense of the public welfare, 33 2 and to preserve theintegrity of the decision-making process.333 Courts interpret § 208 broadly in orderto achieve these objectives.3 34 Violations of § 208 are punishable by sanctions setforth in § 216.


To obtain a conviction under § 208, the government must prove that thedefendant: (i) was an officer or employee of the executive branch or of an

329. 5 C.F.R. § 2641.201 (2015).

330. Id.; Eleanor H. Smith and Leslie Berger Kiernan, POLITICAL ACTIVITY, LOBBYING LAWS & GIFT RULES

GUIDE, 3D § 19:24 (2015).

331. 18 U.S.C. § 208(a) (2012); see United States v. Lund, 853 F.2d 242, 243-47 (4th Cir. 1988) (finding a

violation of § 208 where defendant participated in his wife's employment contract, and noting § 208 was enacted

by Congress in order to extend 18 U.S.C. § 434 "to cover other personal and substantial participation in matters in

which the employee ha[d] a personal interest"); cf. United States v. Tierney, 947 F.2d 854, 865 (8th Cir. 1991)

(holding that, where prosecutor's spouse was partner in law firm representing defendant's insurer and insurer had

sued defendant, such "interest [was] simply too insubstantial to require disqualification of a partner's spouse in

related litigation").

332. See United States v. Miss. Valley Generating Co., 364 U.S. 520, 548, 563466 (1961) (holdingnon-enforcement is remedy where contract is infected with illegal conflict of interest); Kellog Brown & Root

Servs. v. United States, 99 Fed. Cl. 488, 514 (Fed. Cl. 2011) ("[A] conflict of interest at the formation of the

contract operates like a fraud and warrants nonenforcement."); see also City & Cnty. of S.F. v. United States, 443F. Supp. 1116, 1125 (N.D. Cal. 1977) (stating that the purpose of § 208 is to protect the public from the corrupting

influences of government agents who are financially interested in the business transactions which they are

conducting for the government).

333. United States v. Ponnapula, 246 F.3d 576, 583 (6th Cir. 2001).

334. See United States v. Smith, 267 F.3d 1154, 1159 (D.C. Cir. 2001) (concluding that § 208(a) was intended

to have a broad reach); see also United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993) (stating that, by enacting

§ 208, "Congress intended to expand the purview of the statute's predecessor, 18 U.S.C. § 434"); Lund, 853 F.2d

at 246 ("[T]he legislative history and purpose of § 208(a) fully support giving its unambiguous terms the full

breadth of their ordinary meaning."); United States v. Jewell, 827 F.2d 586, 587 (9th Cir. 1987) ("The section's

'catch-all' language.., was designed to allow prosecution on the basis of any type of action taken to execute or

carry to completion a contract.").

335. 18 U.S.C. § 216 (2012).


independent agency; (ii) participated personally and substantially in his or herofficial governmental capacity in a particular matter; and (iii) knew that he or she,his or her spouse, or another statutorily listed person had a financial interest in thatparticular matter.3 36 This formulation is composite because it combines questionsof "personally and substantially" and "particular matter" in the same element.

a. Officer or Employee

Section 208 requires that the defendant be an officer or employee of theexecutive branch or any independent agency of the federal government.33 7 Section208 also applies to special government employees.3 38

Section 208 broadly applies to officers and employees of the executive branchand is not contingent upon salary.339 In United States v. Smith, the D.C. Circuitsummarily rejected the argument that the restrictions imposed by § 208 only applyto defendants paid at a GS-13 level and above,340 reasoning that the plain languageof the statute, as well as the established practice of interpreting its provisionsbroadly, counseled against making salary-based distinctions among employees.34 1

The statute also contains several exemptions.34 2 First, § 208 is inapplicablewhere an employee obtains prior approval from an appointing officer for actionsinvolving potential conflict.3 43 Second, § 208 does not apply if the Director of theOffice of Government Ethics has issued a general rule exempting the particularkind of interest at stake.34 4 Additionally, § 208 does not apply to a specialgovernment employee serving on an advisory committee if the appointing official"certifies in writing that the need for the individual's services outweighs thepotential for a conflict of interest created by the financial interest involved.,345

Finally, § 208 is inapplicable to a financial interest that would affect matters346concerning a Native American tribe or nation.

336. Id. § 208(a); see also Ponnapula, 246 E3d at 583 (discussing these elements of the offense).337. Id. § 208(a).

338. Id.

339. See Smith, 267 F.3d at 1158 59 (holding that a salary below GS-12 does not preclude application of thefederal conflict of interest statute).

340. Id.

341. See id. at 1159 ("[Section] 208(a) was intended, and has generally been interpreted to have a broad

reach ...").

342. 18 U.S.C. § 208(b).

343. Id. § 208(b)(1).

344. Id. § 208(b)(2); see 5 C.ER. § 2640 (2015) (listing the Office of Government Ethics exemptions issued on

December 18, 1996).

345. 18 U.S.C. § 208(b)(3); see also Michael E. Horwin, Note, Ensuring Safe, Effective and Necessary

Vaccines for Children, 37 CAL. W. L. REv. 321, 347-49 (2001) (discussing the application of § 208(b)(3) inrelation to waivers for doctors serving on vaccine committees).

346. 18 U.S.C. § 208(b)(4).

1660 [Vol. 53:1619


b. Participated "Personally and Substantially" in a "Particular Matter"

Only a few court decisions have discussed the definitions of "personally andsubstantially"347 or "particular matter" under § 208 .34 The D.C. Circuit has notedthat the legislative history of § 208 indicates that the section was designed toaddress "a growing concern, both in and out of Congress, with the ever present andperplexing problems of how best to assure high ethical standards in the conduct ofthe Federal Government.34 9

The D.C. Circuit has held that the "personally and substantially" requirementmay be met by a special government employee who individually influenced NASAfunding allocations.3 Other circuits hold that "substantially" participating "ex-cludes employees performing purely ministerial or procedural duties.35 1

The Office of Government Ethics has stated that the term "particular matter" inthe § 208 context does not extend to broad policy matters where the interests of alarge group of persons are implicated, but rather "encompasses only matters thatinvolve deliberation, decision, or action that is focused upon the interest of specificpersons, or a discrete and identifiable class of persons.35 2 However, a consortiumof four research institutions in Mississippi was considered discrete enough to fallwith the definition of a "particular matter" when a special government employee'sclient received the lion's share of earmarked funds.3

According to the Office of Government Ethics, § 208 applies to particularmatters where the employee's personal and substantial participation will have adirect or predictable effect on the particular matter.4 A direct effect is when there

347. See United States v. Selby, 557 E3d 968, 972 (9th Cir. 2009) (interpreting "participation personally and

substantially" under § 208 broadly and holding that defendant, who was government agency employee, violated

§ 208 when she "substantially participated" in expansion of the agency's contract with a software company that

employed her husband, even though she was not involved in the initial procurement of the contract).

348. See United States v. Jewell, 827 E2d 586, 588 (9th Cir. 1987) (discussing the definition of "particular

matter" and finding a "matter may form a separate basis for liability under § 208 only if it is a discrete

transaction").

349. United States v. Conlon, 628 E2d 150, 154 (D.C. Cir. 1980).350. See United States v. Stadd, 636 F.3d 630, 637 (D.C. Cir. 2011) (holding that influencing the NASA

director to allocate funds to the Defendant's client instead of through a national competition was personal and

substantial participation).351. See United States v. Ponnapula, 246 E3d 576, 582 83 (6th Cir. 2001) (finding that attorney hired by the

Small Business Administration to act as substitute trustee at foreclosure sale was not a "substantial" participant in

sale). The Ninth Circuit implicitly endorsed this formulation in United States v. Selby, where it rejected the

defendant's argument under Ponnapula that her involvement in a contractual matter was merely "ministerial" and

therefore non-substantial. See Selby, 557 F.3d at 973 74.

352. See Van Ee v. EPA, 55 F. Supp. 2d 1, 4 (D.D.C. 1999), rev'd on other grounds, 202 F.3d 296, 303 04

(D.C. Cir. 2000) (citing 5 C.ER. § 2635.402(b)(3)). Several commentators have advocated for Congress to amend

the statute to end or change the exclusion of broad policy decisions from matters covered by § 208; however,

Congress has not done so. See Daniel L. Koffsky, Coming to Terms with Bureaucratic Ethics, 11 J.L. & POL. 235,

256 (1995).

353. United States v. Stadd, 636 E3d 630, 637 (D.C. Cir. 2011).

354. 5 C.ER. § 2635.402 (2015).


is a "close causal link between any decision or action to be taken in the matter andany expected effect of the matter on the financial interest.,355 Direct effects maynot occur immediately and do not include attenuated causation chains, speculativeevents, or general economic effects.56 A predictable effect has a "real, as opposedto a speculative possibility that the matter will affect the financial interest."357 Apredictable effect still occurs even if the exact gain or loss is unknown orimmaterial. 8 Minimal stockholdings by two members of a contract awardevaluation panel did not have a direct or predictable effect. 9

c. Knowledge of Financial Interest

There are three different types of knowledge of a financial interest an individualcould have that would implicate them under the statute.60

First, a defendant could be aware of the financial interest of a spouse, partner,child, or employer.36 1 A defendant accused of violating § 208 by virtue of thefinancial interest of such a financial interest must have known that the otherindividual specified by the statute had a financial interest at stake.362 Severalcircuits have held that conviction under § 208 requires only general intent,evidenced by knowledge of a financial interest, rather than specific intent.3 63 TheEleventh Circuit agrees with its sister circuits that the statute does not requirespecific intent; however, it treats § 208 as a strict liability offense.364

355. Id.

356. Id.

357. Id.

358. Id.

359. Antarctic Support Associates v. U.S. Raytheon Tech. Servs. Co., 251 E3d 171 (Fed. Cir. 2000). But seeLorillard, Inc. v. United States Food & Drug Admin., No. 11-440 (RJL), 2014 WL 3585883 (D.D.C. July 21,

2014) (holding that the composition of an FDA advisory committee where one member's ongoing financial

relationship with drug manufacturers who competed with the product being studied, constituted a predictable

effect and hence a conflict of interest falling under § 208).

360. See 18 U.S.C. § 208(a) (2012).361. Id.

362. See id. (stating that a government employee is subject to penalty when he participates personally and

substantially in a matter, which, "to his knowledge," he or an enumerated list of related parties has a financialinterest).

363. See, e.g., United States v. Gorman, 807 F.2d 1299, 1304 (6th Cir. 1986) ("Section 208 sets forth an

objective standard of conduct which is directed not only at dishonor, but also at conduct which tempts dishonor.");

United States v. Lord, 710 F. Supp. 615, 617 (E.D. Va. 1989) (comparing legislative history of § 203 and § 208 and

finding that specific intent was not requisite element of either statute based on Congress' intent to expand the

statutes' scopes), aff'd, 902 F.2d 1567 (4th Cir. 1990); cf United States v. Project on Gov't Oversight, 616 F.3d

544, 552 53 (D.C. Cir. 2010) (holding that the general intent requirement of 18 U.S.C. § 209, another criminal

conflict of interest statute, is satisfied by the mere knowledge that an act has the "characteristics" that bring it

within the purview of the statute).

364. United States v. Hedges, 912 F.2d 1397, 1400-02 (11th Cir. 1990); see also United States v. Davidson,

399 Fed. App'x 525, 527 (1lth Cir. 2010) (reasoning that evidence of intent is irrelevant to a charge arising under

18 U.S.C. § 208(a) because it is a strict liability offense).


Second, a defendant might have knowledge of their own financial interest.3 65 Insuch a case, the government must prove that the defendant had a financial interestor stood to gain from participation in the matter in question.3 66 In defining financialinterest, the D.C. Circuit stated "a Government employee has a financial interest ina particular matter when there is a real possibility that he might gain or lose as aresult of developments in or resolution of the matter. Speculative gain or loss is notenough."

' 367

Finally, a person might have knowledge of the financial interest of an organiza-tion they are negotiating with or whom they have an arrangement regardingprospective employment.36 8 In these cases, the court must find that the defendant'spersonal conduct constituted "negotiations" or "arrangements" under this stat-ute.36 9 In keeping with the purpose of the statute, courts have liberally interpretedthis element of § 208.370

2. Defenses

Multiplicity of the indictment may serve as a defense against a prosecutionunder § 208. In United States v. Jewell,37 1 the defendant claimed that thirteencounts of violating § 208(a) were multiplicities of one § 208(a) violation becauseeach count was based on the signing of invoices pertaining to the same contract.3 72

Concluding that the multiple incidents each related to the same "particular matter"for the purposes of § 208, the Ninth Circuit ultimately determined that the

365. See 18 U.S.C. § 208(a).

366. See United States v. Lund, 853 F.2d 242, 245 (4th Cir. 1988) (holding that spouse's potential gain in salary

from defendant's actions constituted financial interest for purposes of § 208(a)); Gorman, 807 F.2d at 1303 04

(holding that defendant had cognizable financial interest where he stood to gain from contingent fee arrangement).

367. See Airline Pilots Ass'n, Int'l v. U.S. Dep't of Transp., 899 F.2d 1230, 1232 (D.C. Cir. 1990) (quoting

Vested Rights in a Pension Plan as a 'Financial Interest,' Advisory Opinion, 83 Off. Gov't. Ethics 1, 2 (Jan. 7,

1983)) (holding there was no conflict of interest when a DOT Secretary participated in an investigation of an

airline which was a client of the law firm that employed the Secretary after he left the DOT); see also United

States v. White Eagle, 721 F.3d 1108, 1119 (9th Cir. 2013) (holding that whether a financial interest exists for thepurposes of 18 U.S.C. § 208(a) turns on whether "the link between the employee's interest and the public act" is

"real and predictable" and not merely "remote and speculative").

368. See 18 U.S.C. § 208(a).369. See United States v. Conlon, 628 F.2d 150, 154 (D.C. Cir. 2001) (finding it was not necessary to plead

"specific acts of negotiating" to enforce § 208); United States v. Schaltenbrand, 930 F.2d 1554, 1559 (11th Cir.

1991) (concluding that defendant conducted negotiations when he completed employment application, was

interviewed, and discussed his qualifications for job, despite no offer having been made); CACI, Inc.-Fed. v.

United States, 719 F.2d 1567, 1578 (Fed. Cir. 1983) (concluding that discussions were only "preliminary

exploratory talks, directed to possibilities that never materialized," and therefore were not negotiations which

violated § 208).

370. Conlon, 628 F.2d at 155 ("Congress meant the words 'negotiating' and 'arrangement' in § 208(a) to be

given a broad reading . ..").

371. 827 F.2d 586 (9th Cir. 1987).

372. Id. at 587 88 (finding that signing of invoices was part of ongoing process relating to one government

contract in which defendant had financial interest).


defendant could be charged with only one count of violating subsection 208(a).3 73

If the government brings § 208 charges against an individual, the defendant mayalso assert as a defense that the statute lacks a private right of action. In Scherer v.United States,374 the court dismissed a § 208 charge by a university student againsta Department of Education employee finding that only the Attorney Generalpossesses a right of action under that provision.375

E. Illegal Outside Salaries for Federal Employees

Section 209 prohibits receipt and payment of a salary as compensation, exceptfrom the government, for services rendered as an officer or employee of theExecutive Branch, an executive agency, or the District of Columbia govern-ment. 7 6 A payment is "prohibited" by § 209(a) if (i) the payor intends tocompensate an executive branch employee for his government work or the payeeintends to receive it as compensation for his government work, and (ii) the work inquestion is actually the employee's government work.377 The general intentrequired by the statute is "only that the perpetrator 'kn[ow] that [his act] ha[s] thecharacteristics bringing it within the scope of the statute,' not that those character-istics make the acts unlawful., 378 If a defendant is found to have made such apayment, a showing of good faith is not a defense.379 As with the other conflict ofinterest statutes, violators of § 209 are subject to the penalties set forth in § 216,380and there is no private right of action.3 8 1

373. Id. at 588 (stating that a matter forms a separate basis for liability under § 208 "only if it is a discrete

transaction").

374. 241 F Supp. 2d 1270 (D. Kan. 2003), aff'd, 78 E App'x 687 (10th Cir. 2003).

375. Id. at 1285 (dismissing § 208 (b) and (c) actions because there was no express or implied private right of

action).

376. 18 U.S.C. § 209(a) (2012); see United States v. Project on Gov't Oversight, 454 E3d 306, 309 (D.C. Cir.

2006) (discussing requirements of § 209(a) and what constitutes compensation for services rendered as a

government employee); United States v. Smith, 324 E3d 922, 926 (7th Cir. 2003) (finding that statutes other than

§ 208 which address the topic of a federal employee's receipt of income from outside sources do not cast doubt onthe ability of an Assistant United States Attorney to receive his salary from the state of Wisconsin).

377. Project of Gov't Oversight, 616 F.3d at 559, n. 18 (D.C. Cir. 2010); see also United States v. Sun-Diamond

Growers of Cal., 526 U.S. 398, 408 09 (1999) (noting that § 209 was drawn broadly with the intent to proscribeany gift giving or salary supplementation).

378. Project of Gov't Oversight, 616 F.3d at 552 553 (quoting Carter v. United States, 530 U.S. 255, 269

(2000)). But see Sun-Diamond, 526 U.S. at 408 09 (noting in dicta that § 209 criminalizes certain gifts to

executive officials "without regard to the purpose of the payment" and arguing that if Congress intended § 201 to

be read broadly it would have used language similar to that found in § 209). See generally Beth Nolan, Public

Interest, Private Income: Conflicts and Control Limits on the Outside Income of Government Officials, 87 Nw.

U. L. REv. 57, 89 (1992) (discussing policy considerations in prohibiting salary supplementation).

379. Project of Gov't Oversight, 616 E3d at 560.

380. 18 U.S.C. § 216 (2012).

381. See Judicial Watch, Inc. v. Clinton, 880 E Supp. 1, 5 n.3 (D.D.C. 1995) (dismissing a private suit against

former President Clinton regarding potential for undue influence stemming from donations to Legal Expense

Trust), aff'd, 76 E3d 1232 (D.C. Cir. 1996).

PUBLIC CORRUPTION

The leading case construing § 209 is Crandon v. United States,38 2 in which theSupreme Court held that severance payments made to future federal employeesbefore they begin government service do not violate the statute.38 3 In reaching thisresult, the Court determined that Congress intended to help the government attractpersonnel with special knowledge and skills,38 4 and that § 209 accordingly appliesonly to those persons who are employed by the government at the time the outsidepayments are received.38 5

One issue that was raised in a concurring opinion in Crandon is whether thestatute is restricted to all forms of compensation or just periodic payments thatcould be understood as "salary.,38 6 However, courts have held that the statuteclearly applies to all forms of compensation and not merely salaries or salary-likepayments.3 87

The statutory language of § 209 lists a number of situations in which a federalofficer or employee may accept outside compensation.38 According to theDepartment of Justice, § 209 does not "prohibit all non-government payments toan individual where there is any nexus between the payment and the individual'semployment by the government.,3 9 Rather, the statute requires "an intentional,direct link between the outside compensation and the employee's governmentservice.3 90 In addition, a federal officer or employee may continue to accept anycontributions, awards, or other expenses from tax-exempt organizations as gov-erned by Chapter 41 of Title 5 of the U.S. Code.39 1

382. 494U.S. 152 (1990).

383. See id. at 167 68 (noting that a literal reading of the statute places such payments outside scope of

§ 209(a)). See generally Thomas E. Kenney, Pre-Employment Payments to Individuals who Enter Government

Service: As Approved in Crandon v. United States, 33 B.C. L. REv. 456 (1992) (discussing Crandon holding and

the history of § 209).

384. See Crandon, 494 U.S. at 167 (noting that an intent to attract certain personnel was a public interest as

identified by the President and Attorney General at time of statute's enactment).

385. See id. at 158 59 (noting the rule of lenity supported an interpretation of statute to require employment by

government at the time payment is made); see also United States v. Paisley, 957 F.2d 1161, 1163 (4th Cir. 1992)

(reiterating Crandon's holding in context of a civil suit); Modern Muzzleloading, Inc. v. Magaw, 18 E Supp. 2d

29, 35 (D.D.C. 1998) (interpreting Crandon's use of the rule of lenity narrowly).

386. See Crandon at 171 (suggesting that § 209 only applies to payments that are akin to salary rather than

one-time payments or non-monetary compensation) (Scalia, J., concurring).

387. See e.g., United States v. Project on Gov't Oversight, 616 F.3d 544, (D.C. Cir. 2010) (holding that aone-time payment is enough for liability under the statute); United States v. Pratt, No. ELH-12-401, 2013 WL

310565, 12 (D. Md. 2013) (holding that the statute covers numerous forms of compensation, including one-time

payments, and listing several other circuits that have held similarly).388. See 18 U.S.C. § 209(b) (f) (2012) (delineating exceptions).

389. United States v. Project on Gov't Oversight, 454 F.3d 306, 309 (D.C. Cir. 2006) (citing Application of 18

U.S.C. § 209 to Employee-Inventors Who Receive Outside Royalty Payments, Op. Off. Legal Counsel (Sept. 5,

2000)).

390. Id.

391. 18 U.S.C. § 209(d). Section 4111 of Title 5 of the United States Code provides:

[T]o 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

2016] 1665


F Penalties

Section 2C1.3 of the Guidelines applies to defendants convicted under 18U.S.C. §§ 203-209.392 The base offense level for these offenses is six. 3 9 3 If theoffense involved harm to the government, the offense level is increased by four.394

Defendants convicted of violating 18 U.S.C. § 209 are also sentenced in accor-dance with § 2C1.3395 However, some crimes, such as illegal supplementation ofan executive's salary, may involve high-ranking officials and lead to an increase inthe offense level in accordance with § 2C1.1.3 9 6 When these circumstances arepresent, the Sentencing Commission's explanation of intent provides courts withvaluable guidance.397

Section 216 sets forth the applicable penalties for violations of §§ 203-209.Criminal sanctions are adjusted according to whether the defendant "willfully"engaged in the conduct.39 9 Without willful conduct, the penalty is limited to oneyear or less, a fine, or both.400 If the crime was willfully committed, the sanction isup to five years in prison, a fine, or both.40 1 The Attorney General may seek civilpenalty fines capped at $50,000 for each violation, or equaling the compensationreceived or offered for the prohibited conduct, whichever is greater.40 2 The

incident to attendance at meetings, may be made to and accepted by an employee, without regardto 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 50 1(a) of title 26.

5 U.S.C. § 4111(a) (2012).

392. 18 U.S.C. §§ 203, 205, 207, 208 (2012); see United States v. Smith, 267 F.3d 1154, 1159 66 (D.C. Cir.

2001) (discussing sentencing guidelines for violations of § 208(a)); U.S.S.G. MANUAL app. A (2015).

393. U.S.S.G. MANUAL § 2C1.3(a).

394. Id. § 2C1.3(b)(1); see United States v. Geddings, 497 F. Supp. 2d 729, 742 (E.D. N.C. 2007) (applying

this calculation to defendant's hypothetical argument).

395. U.S.S.G. MANUAL app. A.

396. Id. § 2C1.1(b)(3) (stating that, if an offense such as bribery is committed by a high-level official, the base

offense level is increased by four and increased to eighteen if not yet at that level; if an offense of offering, giving,

soliciting, or receiving a gratuity is committed by a high-level official, the level is increased by four and increased

to fifteen if not yet at that level).397. See United States v. Sun-Diamond Growers of Cal., 138 E3d 961, 975 (D.C. Cir. 1998) (reversing in part

where the district court's conclusion was contrary to the Sentencing Commission's explanation of section 2C1.2).

398. 18 U.S.C. § 216 (2012); see United States v. Project on Gov't Oversight, 454 E3d 306, 309 (D.C. Cir.2006) (discussing subsections of § 216); see also CAN Corp. v. United States, 81 Fed. Cl. 722, 728 (2008) (stating

that the penalties set forth in § 216 apply to violations of 18 U.S.C. § 207); Conrad v. United Instruments, Inc., 988

F. Supp. 1223, 1225 (W.D. Wis. 1997) (stating that pursuant to § 216, violations of § 207 may be punished by up

to five years in prison or a fine of $50,000).

399. 18 U.S.C. § 216(a)(1) (2) (2012).

400. Id. § 216(a)(1).

401. Id. § 216(a)(2); see United States v. Project on Gov't Oversight, 543 E Supp. 2d 55, 63 64 (D.D.C. 2008)

(stating that under § 216(a)(2), no felony penalty may be imposed without proof of the requisite mens rea element,

which is the difference between § 216(a)(1) and § 216(a)(2)), rev'd in part on other grounds, 616 E3d 544 (D.C.

Cir. 2010).

402. 18 U.S.C. § 216(b); see Project on Gov't Oversight, 543 E Supp. 2d at 67 68 (discussing the penalties

under § 216(b) and holding a court can take good faith into account when considering the appropriate penalty to

PUBLIC CORRUPTION

standard of review for civil penalties is preponderance of the evidence. Imposingcivil penalties does not preclude any other criminal or civil statutory, common law,or administrative remedy, which may be available by law to the United States orany other person.40 3 Finally, if the employee is engaged in the prohibited conductat the time the proceeding commences, the Attorney General may also seekinjunctive relief prohibiting the individual from continuing to engage in thatconduct.40 4

IV. THE HONEST-SERVICES DOCTRINE

In 1872, Congress passed the first federal mail fraud statute, and in 1909, addedthe language that now appears in the statute prohibiting "any scheme or artifice todefraud, or for obtaining money or property by means of false or fraudulentpretenses, representations, or promises.40 5 In interpreting the statute, variouscourts of appeals, paying special attention to the disjunctive language of the twoclauses, read § 1341 as criminalizing both schemes to defraud and schemes forobtaining money and property via fraudulent methods.40 6 Under this reading of§ 1341, that statute protects the public from traditional fraudulent schemes thatenrich the purveyor of the fraud at the expense of the victim as well as fraudulentschemes that enrich the purveyor of the fraud and a complicit third party whiledepriving the victim of only "honest services.,40 7 "Honest services," therefore,encompass the ethical conduct expected of certain individuals, the violation ofwhich does not necessarily cause a tangible loss to the victim. 40 8

A. History of the Honest-Services Doctrine

This subsection addresses the judicially crafted history of the honest-servicesdoctrine and Congress's response to what it saw as a misapplication of thedoctrine.

impose against a non-profit political organization for paying a Department of Interior employee), rev'd in part on

other grounds, 616 F.3d 544 (D.C. Cir. 2010). But see United States v. Bouchey, 949 F. Supp. 9, 11 12 (D.C. Cir.1996), abrogated by United States v. Project on Gov't Oversight, 484 E Supp. 2d 56, 67 (D.D.C. 2007) (holding

double jeopardy does not apply in civil case brought by Attorney General for criminal conflict of interest violation

because government can seek "remedial compensation," and holding "section 216(b) is not limited to recovery forpecuniary loss; rather, it is also intended to redress the government for damage to its character and standing on

account of a defendant's actions").

403. 18 U.S.C. § 216(b).

404. Id. § 216(c); Project on Gov't Oversight, 543 E Supp. 2d at 66.

405. 18 U.S.C. § 1341 (2012). For an in-depth discussion of mail and wire fraud, see the Mail and Wire Fraud

Article.

406. See, e.g., Shushan v. United States, 117 F.2d 110 (5th Cir. 1941) (holding § 1341 protects two distinct

rights).

407. Id. at 119.

408. See Skilling v. United States, 561 U.S. 358, 400 (2010) (describing the "honest-services" doctrine as one

targeting corruption that lacks the symmetry of schemes in which "the victim's loss of money or property

supplie[s] the defendant's gain").

2016] 1667

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