Applicability of 18 U.S.C. § 207(c) to the Briefing and Arguing of Cases in which the Department of Justice Represents a Party: Memorandum for Stephen D. Potts, Director, Office of Government Ethics [August 27, 1993]   [open pdf - 41KB]

"This memorandum responds to your request for our opinion whether 18 U.S.C. § 207(c) prohibits former high-level Department of Justice officials, within one year after their service in the Department ends, from filing briefs or making oral arguments on behalf of parties other than the United States in cases where the Department represents one of the parties. We conclude that the statute forbids these activities. I. Section 207(c) of title 18 prohibits a senior employee, for one year after termination of service, from knowingly making a communication to or appearance before his former department in connection with a matter on which he seeks official action. […] Notwithstanding these prior positions, a memorandum to our files dated January 14, 1993 ('January 1993 Memorandum') memorialized advice that section 207(c) does not preclude former senior officials from briefing and arguing cases in which the Department is or represents a party. Your recent letter about the January 1993 Memorandum argued that section 207(c) prohibits such advocacy, and that the amendments to section 207, which were passed in 1989, broadened, rather than narrowed, its scope. Letter to Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics (June 4, 1993). The question we now face is whether we should revert to our original interpretation of section 207(c) or should adopt the reasoning of the January 1993 Memorandum."

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