                                                       September 24, 1979


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

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


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

                                 I. Facts

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

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tenure in the government were procedural issues—i.e., issues relating tc
the pace o f the negotiations.” In this connection, he accompanied other
officials on a visit to Panam a, and participated in discussions with General
Torrijos on the pace o f negotiations. He also participated in conveying to
General Torrijos the support o f the Joint Chiefs o f Staff for the two
Panam a treaties.
   Mr. A, both during and since his Government service, has testified
before both Houses o f Congress and has spoken publicly about the signifi­
cance o f the Panam a negotiations to United States relations with Latin
Am erica.1 He met with a num ber o f Senate and House Members when
Congress had before it several resolutions designed to stop the negotia­
tions while they were in progress. Further, during his Government service
and for several m onths thereafter, Mr. A served as a member o f the Board
o f Directors o f the Panam a Canal Company, although, according to the
memorandum, neither the Com pany nor its board played any role with
respect to the treaties or implementing legislation.
   According to the m em orandum , Mr. A, while in Government service,
obtained “ relatively little confidential inform ation on the Panam a Canal
treaties.” The m em orandum states that he possesses no confidential infor­
mation gained while he was in the Government that is relevant to the im­
plementing legislation now under consideration by Congress.

                                      II.   Discussion

   W hether Mr. A may lawfully represent Panam a during Congress’ con­
sideration o f legislation implementing the Panam a Canal Treaty depends
on the applicability o f 18 U .S.C . § 207 (1976).2 In pertinent part, § 207
provides criminal sanctions for:
           (a) Whoever, having been an officer or employee o f the ex­
        ecutive branch o f the United States Government * * * after
        his employment has ceased, knowingly acts as agent or at­
        torney for anyone other than the United States in connection
        with any judicial or other proceedings, application, request for
        a ruling or other determ ination, contract, claim, controversy,
       charge, accusation, arrest, or other particular matter involving
        a specific party or parties in which the United States is a party
       or has a direct and substantial interest and in which he par­
       ticipated personally and substantially as an officer or


    'In connection with Mr. A ’s public speeches in support o f the treaties since he left the
Governm ent, the State D epartm ent has informed us that it furnished him with material that
was otherwise publicly available, but that he was acting in a personal capacity in these ef­
forts. We further understand that Mr. A was one o f several experts, both pro and con, con­
sulted by a Senator as he developed his position on treaty ratification; again, the Departm ent
o f State furnished Mr. A with certain otherwise publicly available inform ation in connection
with his activities.
   “Except as otherwise noted, references in this opinion to 18 U .S.C . § 207 apply to that
statute as written before July 1, 1979. Section 207 has now been am ended, effective July 1,
1979, by the Ethics in G overnm ent Act o f 1978, title V, Pub. L. 95-520, 92 Stat. 1864.

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

              A.   Treaty Implementation Covered by § 207(a)

    Although we have carefully considered the views o f Mr. A ’s firm on
 these questions, we conclude, first, that the implementation o f the
 Panam a Canal Treaty, at least as it may involve judicial proceedings or
 proceedings before the executive branch o f Government, is a “ particular
 m atter” involving specific parties in which the United States is a party and
 has a direct and substantial interest and in which Mr. A participated per­
 sonally and substantially as an officer o f the U.S. Government.
    First, although Mr. A did not actually participate in treaty negotiations,
 he did participate in formulating the Department o f State’s—and thereby
 the United States’—position with respect to the treaty. Such activities
 would be encompassed within the terms “ recom m endation” and “ render­
 ing o f advice,” which are among the enumerated methods o f participation
covered by the statute. It is irrelevant that many other Government offi­
cials participated, or, given the overall significance o f the treaties, that the
 policy issues during Mr. A ’s tenure were, in some sense, “ procedural.” He
 headed an office within the Department o f State that was keenly interested
 in the negotiations. The policy input o f a person in this position must be
regarded as “ substantial participation” under § 207(a).
    We further conclude that the treaties with Panam a constitute a “ par­
ticular m atter involving a specific party or parties.” Unlike general legisla­
tion or rulemaking, treaties are intended to affect specific participating
parties, namely, their signatories. In form, treaties closely resemble con­
tracts, which are expressly covered by the statute. They are signed after the
type o f quasi-adversarial proceedings or negotiations that precede or sur­
round the other types o f “ particular m atters” enumerated in § 207(a). The
phrase “ involving a specific party or parties” has been read to limit the
section’s concern to “ discrete and isolatable transactions between iden­
tifiable parties.” B. Manning, Federal Conflict o f Interest Law 204 (1964).
Such a characterization aptly describes the treaty negotiation process.
   Finally, we conclude that any proceeding involving the executive branch
of Government, the branch which negotiated the treaty, or any judicial pro­
ceeding that concerns the implementation of the treaty would be the same
matter or “ particular matter” as the negotiation with which Mr. A was
associated. From a review o f the treaty, it is evident that both parties
understood the necessity o f subsequent steps by the United States to set the
de facto terms, as well as the tone, o f the two nations’ agreement. Articles III

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

             B.   Legislative Activities Excluded from § 207(a)

   The question remains, however, whether—notwithstanding our conclu­
sion that a proceeding that concerns implementation o f the Panam a Canal
Treaty and involves specific parties would be part o f the same particular
m atter involving specific parties with respect to which Mr. A had personal
and substantial responsibility while in office—§ 207(a) is inapplicable
because Mr. A ’s proposed activities would solely involve Congress’ con­
sideration o f proposed legislation. On this issue, we agree with Mr. A ’s
firm th at wholly legislative activity is not barred by § 207(a).
   W hether § 207(a) applies to legislative activity is not clearly settled either
by the language or history o f the statute. None o f the kinds o f proceedings
specified in that statute is legislative in nature, and it is generally settled
that proceedings, such as general rulemaking, that do not typically involve
specific parties, are outside the ambit o f § 207(a). See Attorney General’s
M em orandum Re the Conflict o f Interest Provisions o f Public Law
87-849, 18 U .S.C . 201 note (1976). It would appear reasonable to con­
clude, however, that some legislation, e.g., private bills, would appear to
be particular matters involving specific parties as to which application of
the § 207(a) bar would advance the policy goals o f the Act. The question
o f the statute’s scope is, therefore, a close one.
   We nonetheless conclude that legislative activity is not within the scope
o f “ particular m atters” covered by § 207(a). Assuming that, in theory,
certain kinds o f legislation could justly be described as proceedings “ in­
volving a specific party or parties,” most legislation cannot. To bring
within the ambit o f § 207(a) those legislative activities that might be
deemed to fall within the specified kinds o f proceedings would require the
drawing o f some line to separate the exceptional categories o f legislation
from the typical legislative proceedings that more closely resemble general
rulemaking. Congress has not, in § 207(a), made any attem pt to draw such
a line. It would be inappropriate, in construing a criminal statute, to infer
a nonobvious distinction between permissible and proscribed activity that
Congress has not squarely considered and that would render uncertain the

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applicability o f the criminal sanctions involved.3 This is especially so in an
area where the activities proscribed by statute, are not among those that led
Congress to enact the prohibition.
   In this connection, although the acts o f a subsequent Congress do not
control the interpretation o f an earlier statute, it must be noted that C on­
gress, in 1978, specifically amended § 207(a) in a way that expressly ex­
cludes legislative activity.4 In so doing, Congress acted on the apparent
assumption that it was clarifying, not changing, pre-existing law in this
respect. The assumption is evident, first, in a report o f the Senate Com ­
mittee on Governmental Affairs that interpreted a proposed new version
o f § 207 that would not have changed the language o f § 207(a) with regard
to the inclusion or exclusion o f legislative activity. The Committee said,
with respect to the proposed revision:
      A former official is also allowed [under § 207(a)] to appear
      before Congressional committees and give testimony even on
      particular matters involving specific parties in which he par­
      ticipated personally and substantially while in office. [S. Rept.
      No. 170, 95th Cong., 1st sess. 152 (1977).]
Because Congress had not yet rewritten § 207(a) to make the exclusion of
legislative activity express, the Senate comm ittee’s interpretation must
have reflected its understanding o f the range o f proceedings covered by the
language o f the former § 207(a).


   ’The legislation history o f § 207(a) strongly supports the conclusion that Congress did not
consider the applicability o f the postemploym ent ban to legislative activity. The language o f
both the House and Senate reports emphasizes Congress’ concern with “ judicial as well as
administrative proceedings,” H. Rept. 748, 87th Cong., 1st sess. 11 (1961); see also S. Rept.
2213, 87th Cong., 2d sess. 5 ( 1962), excluding, by implication, any consideration o f the
legislative forum.
   ‘As amended, § 207(a) now provides criminal sanctions for:
         W hoever, having been an officer or employee o f the executive branch o f the United
     States G overnm ent, o f any independent agency o f the United States, or o f the District o f
     Columbia, including a special Governm ent employee, after his employment has ceased,
      knowingly acts as agent or attorney for, or otherwise represents, any other person (ex­
     cept the United States), in any formal or informal appearance before, or, with the intent
     to influence, makes any oral or written com m unication on behalf o f any other person
     (except the United States) to —
            (1) any departm ent, agency, court, court-m artial, or any civil, military, or naval
         commission o f the United States or the District o f Colum bia, or any officer or
         employee thereof, and
            (2) in connection with any judicial or other proceeding, application, request for a
         ruling or other determ ination, contract, claim, controversy, investigation, charge, ac­
         cusation, arrest, or other particular m atter involving a specific party or parties in
         which the United States or the District o f Columbia is a party or has a direct and
         substantial interest, and
           (3) in which he participated personally and substantially as an officer or employee
         through decision, approval, disapproval, recom mendation, the rendering o f advice,
         investigation or otherwise, while so employed; * * *
     The Office o f Governm ent Ethics regulations interpreting the new § 207(a) specifically
     permit legislative activity. 44 F.R. 19979 (1979), to be codified at 5 CFR § 737.5(c).

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   This conclusion is buttressed also by the premise stated throughout the
legislative history that, insofar as § 207(a) was being revised substantively,
the new conflict o f interest provisions would be more stringent than the
old. See, e.g., id. at 32. If the former version o f § 207(a) included
legislative activities, the new version would in fact be more lenient in this
regard.
   We conclude that Congress’ understanding in 1978 concerning the scope
o f § 207(a) was correct. The language o f § 207(a) necessarily excludes most
legislation from the kinds o f matters it covers, and no guidance appears
th at suggests a line to be drawn between different kinds o f legislative ac­
tivity with respect to the applicability o f the statute.

                                           Conclusion

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

                                                      John M . H     arm on

                                               Assistant A ttorney General
                                                             Office o f Legal Counsel




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

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