§ 201. — Bribery of public officials and witnesses.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC201]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 11--BRIBERY, GRAFT, AND CONFLICTS OF INTEREST
Sec. 201. Bribery of public officials and witnesses
(a) For the purpose of this section--
(1) the term ``public official'' means Member of Congress,
Delegate, or Resident Commissioner, either before or after such
official has qualified, or an officer or employee or person acting
for or on behalf of the United States, or any department, agency or
branch of Government thereof, including the District of Columbia, in
any official function, under or by authority of any such department,
agency, or branch of Government, or a juror;
(2) the term ``person who has been selected to be a public
official'' means any person who has been nominated or appointed to
be a public official, or has been officially informed that such
person will be so nominated or appointed; and
(3) the term ``official act'' means any decision or action on
any question, matter, cause, suit, proceeding or controversy, which
may at any time be pending, or which may by law be brought before
any public official, in such official's official capacity, or in
such official's place of trust or profit.
(b) Whoever--
(1) directly or indirectly, corruptly gives, offers or promises
anything of value to any public official or person who has been
selected to be a public official, or offers or promises any public
official or any person who has been selected to be a public official
to give anything of value to any other person or entity, with
intent--
(A) to influence any official act; or
(B) to influence such public official or person who has been
selected to be a public official to commit or aid in committing,
or collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States; or
(C) to induce such public official or such person who has
been selected to be a public official to do or omit to do any
act in violation of the lawful duty of such official or person;
(2) being a public official or person selected to be a public
official, directly or indirectly, corruptly demands, seeks,
receives, accepts, or agrees to receive or accept anything of value
personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the
commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation
of the official duty of such official or person;
(3) directly or indirectly, corruptly gives, offers, or promises
anything of value to any person, or offers or promises such person
to give anything of value to any other person or entity, with intent
to influence the testimony under oath or affirmation of such first-
mentioned person as a witness upon a trial, hearing, or other
proceeding, before any court, any committee of either House or both
Houses of Congress, or any agency, commission, or officer authorized
by the laws of the United States to hear evidence or take testimony,
or with intent to influence such person to absent himself therefrom;
(4) directly or indirectly, corruptly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value personally
or for any other person or entity in return for being influenced in
testimony under oath or affirmation as a witness upon any such
trial, hearing, or other proceeding, or in return for absenting
himself therefrom;
shall be fined under this title or not more than three times the
monetary equivalent of the thing of value, whichever is greater, or
imprisoned for not more than fifteen years, or both, and may be
disqualified from holding any office of honor, trust, or profit
under the United States.
(c) Whoever--
(1) otherwise than as provided by law for the proper discharge
of official duty--
(A) directly or indirectly gives, offers, or promises
anything of value to any public official, former public
official, or person selected to be a public official, for or
because of any official act performed or to be performed by such
public official, former public official, or person selected to
be a public official; or
(B) being a public official, former public official, or
person selected to be a public official, otherwise than as
provided by law for the proper discharge of official duty,
directly or indirectly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally for or
because of any official act performed or to be performed by such
official or person;
(2) directly or indirectly, gives, offers, or promises anything
of value to any person, for or because of the testimony under oath
or affirmation given or to be given by such person as a witness upon
a trial, hearing, or other proceeding, before any court, any
committee of either House or both Houses of Congress, or any agency,
commission, or officer authorized by the laws of the United States
to hear evidence or take testimony, or for or because of such
person's absence therefrom;
(3) directly or indirectly, demands, seeks, receives, accepts,
or agrees to receive or accept anything of value personally for or
because of the testimony under oath or affirmation given or to be
given by such person as a witness upon any such trial, hearing, or
other proceeding, or for or because of such person's absence
therefrom;
shall be fined under this title or imprisoned for not more than
two years, or both.
(d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and
(3) of subsection (c) shall not be construed to prohibit the payment or
receipt of witness fees provided by law, or the payment, by the party
upon whose behalf a witness is called and receipt by a witness, of the
reasonable cost of travel and subsistence incurred and the reasonable
value of time lost in attendance at any such trial, hearing, or
proceeding, or in the case of expert witnesses, a reasonable fee for
time spent in the preparation of such opinion, and in appearing and
testifying.
(e) The offenses and penalties prescribed in this section are
separate from and in addition to those prescribed in sections 1503,
1504, and 1505 of this title.
(Added Pub. L. 87-849, Sec. 1(a), Oct. 23, 1962, 76 Stat. 1119; amended
Pub. L. 91-405, title II, Sec. 204(d)(1), Sept. 22, 1970, 84 Stat. 853;
Pub. L. 99-646, Sec. 46(a)-(l), Nov. 10, 1986, 100 Stat. 3601-3604; Pub.
L. 103-322, title XXXIII, Secs. 330011(b), 330016(2)(D), Sept. 13, 1994,
108 Stat. 2144, 2148.)
Prior Provisions
A prior section 201, act June 25, 1948, ch. 645, 62 Stat. 691,
prescribed penalties for anyone who offered or gave anything of value to
an officer or other person to influence his decisions, prior to the
general amendment of this chapter by Pub. L. 87-849, and is
substantially covered by revised section 201.
Provisions similar to those comprising this section were contained
in sections 201 to 213 of this title, prior to the general amendment of
this chapter by Pub. L. 87-849.
Amendments
1994--Subsec. (b). Pub. L. 103-322, Sec. 330016(2)(D), which
directed the amendment of ``section 201'' by inserting ``under this
title or'' after ``be fined'' and ``whichever is greater,'' before ``or
imprisoned'', was executed by making the insertions in text of last par.
of subsec. (b), and not in last par. of subsec. (c), to reflect the
probable intent of Congress.
Pub. L. 103-322, Sec. 330011(b)(A), amended Pub. L. 99-646,
Sec. 46(b)(1). See 1986 Amendment note below.
Subsec. (b)(1). Pub. L. 103-322, Sec. 330011(b), amended Pub. L. 99-
646, Sec. 46(b). See 1986 Amendment note below.
1986--Pub. L. 99-646, Sec. 46(l), provided for alignment of margins
of each subsection, paragraph, and subparagraph of this section.
Subsec. (a). Pub. L. 99-646, Sec. 46(a), substituted ``section--''
for ``section:'', designated provision defining ``public official'' as
par. (1), inserted ``the term'' after ``(1)'', and substituted
``Delegate'' for ``Delegate from the District of Columbia'', ``after
such official has qualified'' for ``after he has qualified'', and
``juror;'' for ``juror; and''; designated provision defining ``person
who has been selected to be a public official'' as par. (2), inserted
``the term'' after ``(2)'', and substituted ``such person'' for ``he'';
and designated provision defining ``official act'' as par. (3), inserted
``the term'' after ``(3)'', and substituted ``in such official's
official capacity, or in such official's'' for ``in his official
capacity, or in his''.
Subsec. (b). Pub. L. 99-646, Sec. 46(b)(1), as amended by Pub. L.
103-322, Sec. 330011(b)(A), substituted ``Whoever--'' for ``Whoever,''
and inserted ``(1)'' before ``directly''.
Pub. L. 99-646, Sec. 46(e)(5), redesignated the undesignated par.
which followed former subsec. (e) as concluding par. of subsec. (b) and
substituted ``shall be fined not more than'' for ``Shall be fined not
more than $20,000 or'' and ``thing of value,'' for ``thing of value,
whichever is greater,''.
Subsec. (b)(1). Pub. L. 99-646, Sec. 46(b), as amended by Pub. L.
103-322, Sec. 330011(b), redesignated former subsec. (b) as par. (1),
redesignated former pars. (1) to (3) as subpars. (A) to (C),
respectively, and realigned their margins, and in subpar. (C)
substituted ``the lawful duty of such official or person;'' for ``his
lawful duty, or''.
Subsec. (b)(2). Pub. L. 99-646, Sec. 46(c), redesignated former
subsec. (c) as par. (2), struck out ``Whoever,'' before ``being'',
substituted ``corruptly demands, seeks, receives, accepts, or agrees to
receive or accept anything of value personally'' for ``corruptly asks,
demands, exacts, solicits, seeks, accepts, receives, or agrees to
receive anything of value for himself'', redesignated former pars. (1)
to (3) as subpars. (A) to (C), respectively, and realigned their
margins, in subpar. (A) substituted ``the performance'' for ``his
performance'' and struck out ``or'' after ``act;'', and in subpar. (C)
substituted ``the official duty of such official or person;'' for ``his
official duty; or''.
Subsec. (b)(3). Pub. L. 99-646, Sec. 46(d), redesignated former
subsec. (d) as par. (3) and substituted ``directly'' for ``Whoever,
directly'' and ``therefrom;'' for ``therefrom; or''.
Subsec. (b)(4). Pub. L. 99-646, Sec. 46(e), redesignated former
subsec. (e) as par. (4), substituted ``directly'' for ``Whoever,
directly'', ``demands, seeks, receives, accepts, or agrees to receive or
accept anything of value personally'' for ``asks, demands, exacts,
solicits, seeks, accepts, receives, or agrees to receive anything of
value for himself'', ``in testimony'' for ``in his testimony'', and
``therefrom;'' for ``therefrom--''.
Subsec. (c). Pub. L. 99-646, Sec. 46(f), (g)(1), (h)(1), (i)(1),
redesignated former subsecs. (f) to (i) as subsec. (c)(1)(A), (B), (2),
and (3), respectively. Former subsec. (c) redesignated (b)(2).
Pub. L. 99-646, Sec. 46(i)(6), redesignated the undesignated par.
which followed former subsec. (i) as concluding par. of subsec. (c) and
substituted ``shall be fined under this title'' for ``Shall be fined not
more than $10,000''.
Subsec. (c)(1). Pub. L. 99-646, Sec. 46(f), (g), redesignated former
subsec. (f) as par. (1) and substituted ``(1) otherwise'' for ``,
otherwise'' and ``(A) directly'' for ``, directly'', redesignated former
subsec. (g) as subpar. (B) and substituted ``being'' for ``Whoever,
being'', ``indirectly demands, seeks, receives, accepts, or agrees to
receive or accept anything of value personally'' for ``indirectly asks,
demands, exacts, solicits, seeks, accepts, receives, or agrees to
receive anything of value for himself'', and ``by such official or
person;'' for ``by him; or''.
Subsec. (c)(2). Pub. L. 99-646, Sec. 46(h), redesignated former
subsec. (h) as par. (2) and substituted ``directly'' for ``Whoever,
directly'' and ``such person's absence therefrom;'' for ``his absence
therefrom; or''.
Subsec. (c)(3). Pub. L. 99-646, Sec. 46(i), redesignated former
subsec. (i) as par. (3) and substituted ``directly'' for ``Whoever,
directly'', ``demands, seeks, receives, accepts, or agrees to receive or
accept'' for ``asks, demands, exacts, solicits, seeks, accepts,
receives, or agrees to receive'', ``personally'' for ``for himself'',
``by such person'' for ``by him'', and ``such person's absence
therefrom;'' for ``his absence therefrom--''.
Subsec. (d). Pub. L. 99-646, Sec. 46(j), redesignated former subsec.
(j) as (d), substituted ``Paragraphs (3) and (4) of subsection (b) and
paragraphs (2) and (3) of subsection (c)'' for ``Subsections (d), (e),
(h), and (i)'' and struck out ``involving a technical or professional
opinion,'' after ``expert witnesses,''. Former subsec. (d) redesignated
(b)(3).
Subsecs. (e) to (k). Pub. L. 99-646, Sec. 46(f)-(k), redesignated
former subsecs. (e) to (k) as (b)(4), (c)(1)(A), (B), (2), (3), (d), and
(e), respectively.
1970--Subsec. (a). Pub. L. 91-405 included Delegate from District of
Columbia in definition of ``public official''.
Effective Date of 1994 Amendment
Section 330011(b) of Pub. L. 103-322 provided that the amendment
made by that section is effective as of the date on which section 46(b)
of Pub. L. 99-646 took effect.
Effective Date of 1986 Amendment
Section 46(m) of Pub. L. 99-646 provided that: ``The amendments made
by this section [amending this section] shall take effect 30 days after
the date of enactment of this Act [Nov. 10, 1986].''
Effective Date of 1970 Amendment
Amendment by Pub. L. 91-405 effective Sept. 22, 1970, see section
206(b) of Pub. L. 91-405, set out as an Effective Date note under
section 25a of Title 2, The Congress.
Effective Date
Section 4 of Pub. L. 87-849 provided that: ``This Act [enacting this
section and sections 202 to 209 and 218 of this title, redesignating
sections 214, 215, 217 to 222 as 210, 211, 212 to 217 of this title
respectively, repealing sections 223, 282, 284, 434, and 1914 of this
title, and section 99 of former Title 5, Executive Departments and
Government Officers and Employees, and enacting provisions set out as
notes under section 281 and 282 of this title] shall take effect ninety
days after the date of its enactment [Oct. 23, 1962]''.
Short Title of 1996 Amendment
Pub. L. 104-177, Sec. 1, Aug. 6, 1996, 110 Stat. 1563, provided
that: ``This Act [amending section 205 of this title] may be cited as
the `Federal Employee Representation Improvement Act of 1996'.''
Short Title of 1986 Amendment
Pub. L. 99-370, Sec. 1, Aug. 4, 1986, 100 Stat. 779, provided that:
``This Act [amending section 215 of this title and enacting provisions
set out as a note under section 215 of this title] may be cited as the
`Bank Bribery Amendments Act of 1985'.''
Executive Order No. 11222
Ex. Ord. No. 11222, May 8, 1965, 30 F.R. 6469, as amended by Ex.
Ord. No. 11590, Apr. 23, 1971, 36 F.R. 7831; Ex. Ord. No. 12107, Dec.
28, 1978, 44 F.R. 1055; Ex. Ord. No. 12565, Sept. 25, 1986, 51 F.R.
34437, which established standards of ethical conduct for government
officers and employees, was revoked by Ex. Ord. No. 12674, Apr. 12,
1989, 54 F.R. 15159, as amended, set out as a note under section 7301 of
Title 5, Government Organization and Employees.
Executive Order No. 12565
Ex. Ord. No. 12565, Sept. 25, 1986, 51 F.R. 34437, which amended Ex.
Ord. No. 11222, formerly set out above, and provided confidentiality for
financial reports filed pursuant to Ex. Ord. No. 11222, was revoked by
Ex. Ord. No. 12674, Apr. 12, 1989, 54 F.R. 15159, as amended, set out as
a note under section 7301 of Title 5, Government Organization and
Employees.
Memorandum of Attorney General Regarding Conflict of Interest Provisions
of Public Law 87-849, Feb. 1, 1963, 28 F.R. 985
January 28, 1963.
Public Law 87-849, ``To strengthen the criminal laws relating to
bribery, graft, and conflicts of interest, and for other purposes,''
came into force January 21, 1963. A number of departments and agencies
of the Government have suggested that the Department of Justice prepare
and distribute a memorandum analyzing the conflict of interest
provisions contained in the new act. I am therefore distributing the
attached memorandum.
One of the main purposes of the new legislation merits specific
mention. That purpose is to help the Government obtain the temporary or
intermittent services of persons with special knowledge and skills whose
principal employment is outside the Government. For the most part the
conflict of interest statutes superseded by Public Law 87-849 imposed
the same restraints on a person serving the Government temporarily or
intermittently as on a full-time employee, and those statutes often had
an unnecessarily severe impact on the former. As a result, they impeded
the departments and agencies in the recruitment of experts for important
work. Public Law 87-849 meets this difficulty by imposing a lesser array
of prohibitions on temporary and intermittent employees than on regular
employees. I believe that a widespread appreciation of this aspect of
the new law will lead to a significant expansion of the pool of talent
on which the departments and agencies can draw for their special needs.
Robert F. Kennedy,
Attorney General.
Memorandum re the Conflict of Interest Provisions of Public Law 87-849,
76 Stat. 1119, Approved October 23, 1962
Introduction
Public Law 87-849, which came into force January 21, 1963, affected
seven statutes which applied to officers and employees of the Government
and were generally spoken of as the ``conflict of interest'' laws. These
included six sections of the criminal code, 18 U.S.C. 216, 281, 283,
284, 434 and 1914, and a statute containing no penalties, section 190 of
the Revised Statutes (5 U.S.C. 99). Public Law 87-849 (sometimes
referred to hereinafter as ``the Act'') repealed section 190 and one of
the criminal statutes, 18 U.S.C. 216, without replacing them.\1\ In
addition it repealed and supplanted the other five criminal statutes. It
is the purpose of this memorandum to summarize the new law and to
describe the principal differences between it and the legislation it has
replaced.
The Act accomplished its revisions by enacting new sections 203,
205, 207, 208 and 209 of title 18 of the United States Code and
providing that they supplant the above-mentioned sections 281, 283, 284,
434 and 1914 of title 18 respectively.\2\ It will be convenient,
therefore, after summarizing the principal provisions of the new
sections, to examine each section separately, comparing it with its
precursor before passing to the next. First of all, however, it is
necessary to describe the background and provisions of the new 18 U.S.C.
202(a), which has no counterpart among the statutes formerly in effect.
Special Government Employees [New 18 U.S.C. 202(a)]
In the main the prior conflict of interest laws imposed the same
restrictions on individuals who serve the Government intermittently or
for a short period of time as on those who serve full-time. The
consequences of this generalized treatment were pointed out in the
following paragraph of the Senate Judiciary Committee report on the bill
which became Public Law 87-849: \3\
In considering the application of present law in relation to the
Government's utilization of temporary or intermittent consultants and
advisers, it must be emphasized that most of the existing conflict-of-
interest statutes were enacted in the 19th century--that is, at a time
when persons outside the Government rarely served it in this way. The
laws were therefore directed at activities of regular Government
employees, and their present impact on the occasionally needed experts--
those whose main work is performed outside the Government--is unduly
severe. This harsh impact constitutes an appreciable deterrent to the
Government's obtaining needed part-time services.
The recruiting problem noted by the Committee generated a major part
of the impetus for the enactment of Public Law 87-849. The Act dealt
with the problem by creating a category of Government employees termed
``special Government employees'' and by excepting persons in this
category from certain of the prohibitions imposed on ordinary employees.
The new 18 U.S.C. 202(a) defines the term ``special Government
employee'' to include, among others, officers and employees of the
departments and agencies who are appointed or employed to serve, with or
without compensation, for not more than 130 days during any period of
365 consecutive days either on a full-time or intermittent basis.
Summary of the Main Conflict of Interest Provisions of Public Law 87-849
A regular officer or employee of the Government--that is, one
appointed or employed to serve more than 130 days in any period of 365
days--is in general subject to the following major prohibitions (the
citations are to the new sections of Title 18):
1. He may not, except in the discharge of his official duties,
represent anyone else before a court or Government agency in a matter in
which the United States is a party or has an interest. This prohibition
applies both to paid and unpaid representation of another (18 U.S.C. 203
and 205).
2. He may not participate in his governmental capacity in any matter
in which he, his spouse, minor child, outside business associate or
person with whom he is negotiating for employment has a financial
interest (18 U.S.C. 208).
3. He may not, after his Government employment has ended, represent
anyone other than the United States in connection with a matter in which
the United States is a party or has an interest and in which he
participated personally and substantially for the Government (18 U.S.C.
207(a)).
4. He may not, for 1 year after his Government employment has ended,
represent anyone other than the United States in connection with a
matter in which the United States is a party or has an interest and
which was within the boundaries of his official responsibilities \4\
during the last year of his Government service (18 U.S.C. 207(b)). This
temporary restraint of course gives way to the permanent restraint
described in paragraph 3 if the matter is one in which he participated
personally and substantially.
5. He may not receive any salary, or supplementation of his
Government salary, from a private source as compensation for his
services to the Government (18 U.S.C. 209).
A special Government employee is in general subject only to the
following major prohibitions:
1. (a) He may not, except in the discharge of his official duties,
represent anyone else before a court or Government agency in a matter in
which the United States is a party or has in interest and in which he
has at any time participated personally and substantially for the
Government (18 U.S.C. 203 and 205).
(b) He may not, except in the discharge of his official duties,
represent anyone else in a matter pending before the agency he serves
unless he has served there no more than 60 days during the past 365 (18
U.S.C. 203 and 205). He is bound by this restraint despite the fact that
the matter is not one in which he has ever participated personally and
substantially.
The restrictions described in subparagraphs (a) and (b) apply to
both paid and unpaid representation of another. These restrictions in
combination are, of course, less extensive than the one described in the
corresponding paragraph 1 in the list set forth above with regard to
regular employees.
2. He may not participate in his governmental capacity in any matter
in which he, his spouse, minor child, outside business associate or
person with whom he is negotiating for employment has a financial
interest (18 U.S.C. 208).
3. He may not, after his Government employment has ended, represent
anyone other than the United States in connection with a matter in which
the United States is a party or has an interest and in which he
participated personally and substantially for the Government (18 U.S.C.
207(a)).
4. He may not, for 1 year after his Government employment has ended,
represent anyone other than the United States in connection with a
matter in which the United States is a party or has an interest and
which was within the boundaries of his official responsibility during
the last year of his Government service (18 U.S.C. 207(b)). This
temporary restraint of course gives way to the permanent restriction
described in paragraph 3 if the matter is one in which he participated
personally and substantially.
It will be seen that paragraphs 2, 3, and 4 for special Government
employees are the same as the corresponding paragraphs for regular
employees. Paragraph 5 for the latter, describing the bar against the
receipt of salary for Government work from a private source, does not
apply to special Government employees.
As appears below, there are a number of exceptions to the
prohibitions summarized in the two lists.
Comparison of Old and New Conflict of Interest Sections of Title 18,
United States Code
New 18 U.S.C. 203. Subsection (a) of this section in general
prohibits a Member of Congress and an officer or employee of the United
States in any branch or agency of the Government from soliciting or
receiving compensation for services rendered on behalf of another person
before a Government department or agency in relation to any particular
matter in which the United States is a party or has a direct and
substantial interest. The subsection does not preclude compensation for
services rendered on behalf of another in court.
Subsection (a) is essentially a rewrite of the repealed portion of
18 U.S.C. 281. However, subsections (b) and (c) have no counterparts in
the previous statutes.
Subsection (b) makes it unlawful for anyone to offer or pay
compensation the solicitation or receipt of which is barred by
subsection (a).
Subsection (c) narrows the application of subsection (a) in the case
of a person serving as a special Government employee to two, and only
two, situations. First, subsection (c) bars him from rendering services
before the Government on behalf of others, for compensation, in relation
to a matter involving a specific party or parties in which he has
participated personally and substantially in the course of his
Government duties. And second, it bars him from such activities in
relation to a matter involving a specific party or parties, even though
he has not participated in the matter personally and substantially, if
it is pending in his department or agency and he has served therein more
than 60 days in the immediately preceding period of a year.
New 18 U.S.C. 205. This section contains two major prohibitions. The
first prevents an officer or employee of the United States in any branch
or agency of the Government from acting as agent or attorney for
prosecuting any claim against the United States, including a claim in
court, whether for compensation or not. It also prevents him from
receiving a gratuity, or a share or interest in any such claim, for
assistance in the prosecution thereof. This portion of section 205 is
similar to the repealed portion of 18 U.S.C. 283, which dealt only with
claims against the United States, but it omits a bar contained in the
latter--i.e., a bar against rendering uncompensated aid or assistance in
the prosecution or support of a claim against the United States.
The second main prohibition of section 205 is concerned with more
than claims. It precludes an officer or employee of the Government from
acting as agent or attorney for anyone else before a department, agency
or court in connection with any particular matter in which the United
States is a party or has a direct and substantial interest.
Section 205 provides for the same limited application to a special
Government employee as section 203. In short, it precludes him from
acting as agent or attorney only (1) in a matter involving a specific
party or parties in which he has participated personally and
substantially in his governmental capacity, and (2) in a matter
involving a specific party or parties which is before his department or
agency, if he has served therein more than 60 days in the year past.
Since new sections 203 and 205 extend to activities in the same
range of matters, they overlap to a greater extent than did their
predecessor sections 281 and 283. The following are the few important
differences between sections 203 and 205:
1. Section 203 applies to Members of Congress as well as officers
and employees of the Government; section 205 applies only to the latter.
2. Section 203 bars services rendered for compensation solicited or
received, but not those rendered without such compensation; section 205
bars both kinds of services.
3. Section 203 bars services rendered before the departments and
agencies but not services rendered in court; section 205 bars both.
It will be seen that while section 203 is controlling as to Members
of Congress, for all practical purposes section 205 completely
overshadows section 203 in respect of officers and employees of the
Government.
Section 205 permits a Government officer or employee to represent
another person, without compensation, in a disciplinary, loyalty or
other personnel matter. Another provision declares that the section does
not prevent an officer or employee from giving testimony under oath or
making statements required to be made under penalty for perjury or
contempt.\5\
Section 205 also authorizes a limited waiver of its restrictions and
those of section 203 for the benefit of an officer or employee,
including a special Government employee, who represents his own parents,
spouse or child, or a person or estate he serves as a fiduciary. The
waiver is available to the officer or employee, whether acting for any
such person with or without compensation, but only if approved by the
official making appointments to his position. And in no event does the
waiver extend to his representation of any such person in matters in
which he has participated personally and substantially or which, even in
the absence of such participation, are the subject of his official
responsibility.
Finally, section 205 gives the head of a department or agency the
power, notwithstanding any applicable restrictions in its provisions or
those of section 203, to allow a special Government employee to
represent his regular employer or other outside organization in the
performance of work under a Government grant or contract. However, this
action is open to the department or agency head only upon his
certification, published in the Federal Register, that the national
interest requires it.
New 18 U.S.C. 207. Subsections (a) and (b) of this section contain
post-employment prohibitions applicable to persons who have ended
service as officers or employees of the executive branch, the
independent agencies or the District of Columbia.\6\ The prohibitions
for persons who have served as special Government employees are the same
as for persons who have performed regular duties.
The restraint of subsection (a) is against a former officer or
employee's acting as agent or attorney for anyone other than the United
States in connection with certain matters, whether pending in the courts
or elsewhere. The matters are those involving a specific party or
parties in which the United States is one of the parties or has a direct
and substantial interest and in which the former officer or employee
participated personally and substantially while holding a Government
position.
Subsection (b) sets forth a 1-year postemployment prohibition in
respect of those matters which were within the area of official
responsibility of a former officer or employee at any time during the
last year of his service but which do not come within subsection (a)
because he did not participate in them personally and substantially.
More particularly, the prohibition of subsection (b) prevents his
personal appearance in such matters before a court or a department or
agency of the Government as agent or attorney for anyone other than the
United States.\7\ Where, in the year prior to the end of his service, a
former officer or employee has changed areas of responsibility by
transferring from one agency to another, the period of his
postemployment ineligibility as to matters in a particular area ends 1
year after his responsibility for that area ends. For example, if an
individual transfers from a supervisory position in the Internal Revenue
Service to a supervisory position in the Post Office Department and
leaves that department for private employment 9 months later, he will be
free of the restriction of subsection (b) in 3 months insofar as
Internal Revenue matters are concerned. He will of course be bound by it
for a year in respect of Post Office Department matters.
The proviso following subsections (a) and (b) authorizes an agency
head, notwithstanding anything to the contrary in their provisions, to
permit a former officer or employee with outstanding scientific
qualifications to act as attorney or agent or appear personally before
the agency for another in a matter in a scientific field. This authority
may be exercised by the agency head upon a ``national interest''
certification published in the Federal Register.
Subsections (a) and (b) describe the activities they forbid as being
in connection with ``particular matter[s] involving a specific party or
parties'' in which the former officer or employee had participated. The
quoted language does not include general rulemaking, the formulation of
general policy or stand-ards, or other similar matters. Thus, past
participation in or official responsibility for a matter of this kind on
behalf of the Government does not disqualify a former employee from
representing another person in a proceeding which is governed by the
rule or other result of such matter.
Subsection (a) bars permanently a greater variety of actions than
subsection (b) bars temporarily. The conduct made unlawful by the former
is any action as agent or attorney, while that made unlawful by the
latter is a personal appearance as agent or attorney. However, neither
subsection precludes postemployment activities which may fairly be
characterized as no more than aiding or assisting another.\8\ An
individual who has left an agency to accept private employment may, for
example, immediately perform technical work in his company's plant in
relation to a contract for which he had official responsibility--or, for
that matter, in relation to one he helped the agency negotiate. On the
other hand, he is forbidden for a year, in the first case, to appear
personally before the agency as the agent or attorney of his company in
connection with a dispute over the terms of the contract. And he may at
no time appear personally before the agency or otherwise act as agent or
attorney for his company in such dispute if he helped negotiate the
contract.
Comparing subsection (a) with the antecedent 18 U.S.C. 284 discloses
that it follows the latter in limiting disqualification to cases where a
former officer or employee actually participated in a matter for the
Government. However, subsection (a) covers all matters in which the
United States is a party or has a direct and substantial interest and
not merely the ``claims against the United States'' covered by 18 U.S.C.
284. Subsection (a) also goes further than the latter in imposing a
lifetime instead of a 2-year bar. Subsection (b) has no parallel in 18
U.S.C. 284 or any other provision of the former conflict of interest
statutes.
It will be seen that subsections (a) and (b) in combination are less
restrictive in some respects, and more restrictive in others, than the
combination of the prior 18 U.S.C. 284 and 5 U.S.C. 99. Thus, former
officers or employees who were outside the Government when the Act came
into force on January 21, 1963, will in certain situations be enabled to
carry on activities before the Government which were previously barred.
For example, the repeal of 5 U.S.C. 99 permits an attorney who left an
executive department for private practice a year before to take certain
cases against the Government immediately which would be subject to the
bar of 5 U.S.C. 99 for another year. On the other hand, former officers
or employees became precluded on and after January 21, 1963 from
engaging or continuing to engage in certain activities which were
permissible until that date. This result follows from the replacement of
the 2-year bar of 18 U.S.C. 284 with a lifetime bar of subsection (a) in
comparable situations, from the increase in the variety of matters
covered by subsection (a) as compared with 18 U.S.C. 284 and from the
introduction of the 1-year bar of subsection (b).
Subsection (c) of section 207 pertains to an individual outside the
Government who is in a business or professional partnership with someone
serving in the executive branch, an independent agency or the District
of Columbia. The subsection prevents such individual from acting as
attorney or agent for anyone other than the United States in any matter,
including those in court, in which his partner in the Government is
participating or has participated or which are the subject of his
partner's official responsibility. Although included in a section
dealing largely with post-employment activities, this provision is not
directed to the postemployment situation.
The paragraph at the end of section 207 also pertains to individuals
in a partnership but sets forth no prohibition. This paragraph, which is
of importance mainly to lawyers in private practice, rules out the
possibility that an individual will be deemed subject to section 203,
205, 207(a) or 207(b) solely because he has a partner who serves or has
served in the Government either as a regular or a special Government
employee.
New 18 U.S.C. 208. This section forbids certain actions by an
officer or employee of the Government in his role as a servant or
representative of the Government. Its thrust is therefore to be
distinguished from that of sections 203 and 205 which forbid certain
actions in his capacity as a representative of persons outside the
Government.
Subsection (a) in substance requires an officer or employee of the
executive branch, an independent agency or the District of Columbia,
including a special Government employee, to refrain from participating
as such in any matter in which, to his knowledge, he, his spouse, minor
child or partner has a financial interest. He must also remove himself
from a matter in which a business or nonprofit organization with which
he is connected or is seeking employment has a financial interest.
Subsection (b) permits the agency of an officer or employee to grant
him an ad hoc exemption from subsection (a) if the outside financial
interest in a matter is deemed not substantial enough to have an effect
on the integrity of his services. Financial interests of this kind may
also be made nondisqualifying by a general regulation published in the
Federal Register.
Section 208 is similar in purpose to the former 18 U.S.C. 434 but
prohibits a greater variety of conduct than the ``transaction of
business with * * * [a] business entity'' to which the prohibition of
section 434 was limited. In addition, the provision in section 208
including the interests of a spouse and others is new, as is the
provision authorizing exemptions for insignificant interest.
New 18 U.S.C. 209. Subsection (a) prevents an officer or employee of
the executive branch, an independent agency or the District of Columbia
from receiving, and anyone from paying him, any salary or
supplementation of salary from a private source as compensation for his
services to the Government. This provision uses much of the language of
the former 18 U.S.C. 1914 and does not vary from that statute in
substance. The remainder of section 209 is new.
Subsection (b) specifically authorizes an officer or employee
covered by subsection (a) to continue his participation in a bona fide
pension plan or other employee welfare or benefit plan maintained by a
former employer.
Subsection (c) provides that section 209 does not apply to a special
Government employee or to anyone serving the Government without
compensation whether or not he is a special Government employee.
Subsection (d) provides that the section does not prohibit the
payment or acceptance of contributions, awards or other expenses under
the terms of the Government Employees Training Act. (72 Stat. 327, 5
U.S.C. 2301-2319).
Statutory Exemptions From Conflict of Interest Laws
Congress has in the past enacted statutes exempting persons in
certain positions--usually advisory in nature--from the provisions of
some or all of the former conflict of interest laws. Section 2 of the
Act grants corresponding exemptions from the new laws with respect to
legislative and judicial positions carrying such past exemptions.
However, section 2 excludes positions in the executive branch, an
independent agency and the District of Columbia from this grant. As a
consequence, all statutory exemptions for persons serving in these
sectors of the Government ended on January 21, 1963.
Retired Officers of the Armed Forces
Public Law 87-849 enacted a new 18 U.S.C. 206 which provides in
general that the new sections 203 and 205, replacing 18 U.S.C. 281 and
283, do not apply to retired officers of the armed forces and other
uniformed services. However, 18 U.S.C. 281 and 283 contain special
restrictions applicable to retired officers of the armed forces which
are left in force by the partial repealer of those statutes set forth in
section 2 of the Act.
The former 18 U.S.C. 284, which contained a 2-year disqualification
against postemployment activities in connection with claims against the
United States, applied by its terms to persons who had served as
commissioned officers and whose active service had ceased either by
reason of retirement or complete separation. Its replacement, the
broader 18 U.S.C. 207, also applies to persons in those circumstances.
Section 207, therefore applies to retired officers of the armed forces
and overlaps the continuing provisions of 18 U.S.C. 281 and 283
applicable to such officers although to a different extent than did 18
U.S.C. 284.
Voiding Transactions in Violation of the Conflict of Interest or Bribery
Laws
Public Law 87-849 enacted a new section, 18 U.S.C. 218, which did
not supplant a pre-existing section of the criminal code. However, it
was modeled on the last sentence of the former 18 U.S.C. 216 authorizing
the President to declare a Government contract void which was entered
into in violation of that section. It will be recalled that section 216
was one of the two statutes repealed without replacement.
The new 18 U.S.C. 218 grants the President and, under Presidential
regulations, an agency head the power to void and rescind any
transaction or matter in relation to which there has been a ``final
conviction'' for a violation of the conflict of interest or bribery
laws. The section also authorizes the Government's recovery, in addition
to any penalty prescribed by law or in a contract, of the amount
expended or thing transferred on behalf of the Government.
Section 218 specifically provides that the powers it grants are ``in
addition to any other remedies provided by law.'' Accordingly, it would
not seem to override the decision in United States v. Mississippi Valley
Generating Co., 364 U.S. 520 (1961), a case in which there was no
``final conviction.''
Bibliography
Set forth below are the citations to the legislative history of
Public Law 87-849 and a list of recent material which is pertinent to a
study of the act. The listed 1960 report of the Association of the Bar
of the City of New York is particularly valuable. For a comprehensive
bibliography of earlier material relating to the conflict of interest
laws, see 13 Record of the Association of the Bar of the City of New
York 323 (May 1958).
Legislative History of Public Law 87-849 (H.R. 8140, 87th Cong.)
1. Hearings of June 1 and 2, 1961, before the Antitrust Subcommittee
(Subcommittee No. 5) of the House Judiciary Committee, 87th Cong., 1st
sess., ser. 3, on Federal Conflict of Interest Legislation.
2. H. Rept. 748, 87th Cong., 1st sess.
3. 107 Cong., Rec. 14774.
4. Hearing of June 21, 1962, before the Senate Judiciary Committee,
87th Cong., 2d sess., on Conflicts of Interest.
5. S. Rept. 2213, 87th Cong., 2d sess.
6. 108 Cong. Rec. 20805 and 21130 (daily ed., October 3 and 4,
1962).
Other Material
1. President's special message to Congress, April 27, 1961, and
attached draft bill, 107 Cong. Rec. 6835.
2. President's Memorandum of February 9, 1962, to the heads of
executive departments and agencies entitled Preventing Conflicts of
Interest on the Part of Advisers and Consultants to the Government, 27
F.R. 1341.
3. 42 Op. A.G. No. 6, January 31, 1962.
4. Memorandum of December 10, 1956, for the Attorney General from
the Office of Legal Counsel re conflict of interest statutes, Hearings
before the Antitrust Subcommittee (Subcommittee No. 5) of House
Judiciary Committee, 86th Cong., 2d sess., ser. 17, pt. 2, p. 619.
5. Staff report of Antitrust Subcommittee (Subcommittee No. 5) of
House Judiciary Committee, 85th Cong., 2d sess., Federal Conflict of
Interest Legislation (Comm. Print 1958).
6. Report of the Association of the Bar of the City of New York,
Conflict of Interest and Federal Service (Harvard Univ. Press 1960).
Footnotes
\1\ Section 190 of the Revised Statutes (5 U.S.C. 99), which was
repealed by section 3 of Public Law 87-849, applied to a former officer
or employee of the Government who had served in a department of the
executive branch. It prohibited him, for a period of two years after his
employment had ceased, from representing anyone in the prosecution of a
claim against the United States which was pending in that or any other
executive department during his period of employment. The subject of
post-employment activities of former Government officers and employees
was also dealt with in another statute which was repealed, 18 U.S.C.
284. Public Law 87-849 covers the subject in a single section enacted as
the new 18 U.S.C. 207.
18 U.S.C. 216, which was repealed by section 1(c) of Public Law 87-
849, prohibited the payment to or acceptance by a Member of Congress or
officer or employee of the Government of any money or thing of value for
giving or procuring a Government contract. Since this offense is within
the scope of the newly enacted 18 U.S.C. 201 and 18 U.S.C. 203, relating
to bribery and conflicts of interest, respectively, section 216 is no
longer necessary.
\2\ See section 2 of Public Law 87-849. 18 U.S.C. 281 and 18 U.S.C.
283 were not completely set aside by section 2 but remain in effect to
the extent that they apply to retired officers of the Armed Forces (see
``Retired Officers of the Armed Forces,'' infra).
\3\ S. Rept. 2213, 87th Cong., 2d sess., p. 6.
\4\ The term ``official responsibility'' is defined by the new 18
U.S.C. 202(b) to mean ``the direct administrative or operating
authority, whether intermediate or final, and either exercisable alone
or with others, and either personally or through subordinates, to
approve, disapprove, or otherwise direct Government action.''
\5\ These two provisions of section 205 refer to an ``officer or
employee'' and not, as do certain of the other provisions of the Act, to
an ``officer or employee, including a special Government employee.''
However, it is plain from the definition in section 202(a) that a
special Government employee is embraced within the comprehensive term
``officer or employee.'' There would seem to be little doubt, therefore,
that the instant provisions of section 205 apply to special Government
employees even in the absence of an explicit reference to them.
\6\ The prohibitions of the two subsections apply to persons ending
service in these areas whether they leave the Government entirely or
move to the legislative or judicial branch. As a practical matter,
however, the prohibitions would rarely be significant in the latter
situation because officers and employees of the legislative and judicial
branches are covered by sections 203 and 205.
\7\ Neither section 203 nor section 205 prevents a special
Government employee, during his period of affiliation with the
Government, from representing another person before the Government in a
particular matter only because it is within his official responsibility.
Therefore the inclusion of a former special Government employee within
the 1-year postemployment ban of subsection (b) may subject him to a
temporary restraint from which he was free prior to the end of his
Government service. However, since special Government employees usually
do not have ``official responsibility,'' as that term is defined in
section 202(b), their inclusion within the 1-year ban will not have a
widespread effect.
\8\ Subsection (a), as it first appeared in H.R. 8140, the bill
which became Public Law 87-849, made it unlawful for a former officer or
employee to act as agent or attorney for, or aid or assist, anyone in a
matter in which he had participated. The House Judiciary Committee
struck the underlined words, and the bill became law without them. It
should be noted also that the repealed provisions of 18 U.S.C. 283 made
the distinction between one's acting as agent or attorney for another
and his aiding or assisting another.
Section Referred to in Other Sections
This section is referred to in sections 1961, 2516 of this title;
title 5 sections 3113, 3704; title 7 section 84; title 12 sections
1441a, 1822, 2245; title 15 section 4805; title 43 section 1475a.
