DEPARTMENT OF JUSTICE TESTIMONY BEFORE THE ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE ON REVOLVING DOOR LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000801080031-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 27, 2016
• Document Release Date: November 17, 2011
• Sequence Number: 31
• Publication Date: May 14, 1986
• Content Type: MEMO

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OFFICE OF CONGRESSIONAL AFFAIRS
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OFFICE OF CONGRESSIONAL AFFAIRS
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EXECUTIVE OFFICE OF THE PRESIDEN-t'PI
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
May 14, 1986
LEGISLATIVE REFERRAL MEMORANDUM L_!~! C1 o
TO: Legislative Liaison Officer - - -
Department of Agriculture-David Hoyt-382-1516
Department of Commerce-Michael A. Levitt-377-3151
Department of Defense-Werner Windus-697-1305
Department of Education-JoAnne Durako-732-2670
Department of Energy-Bob Rabben-252-6718
Department of Health and Human Services-F White-245-7308
Department of Housing and Urban Development-E Murphy-755-7093
Department of the Interior-Linda Moore-343-4371
Department of Justice-Jack Perkins-633-2113
Department of Labor-Seth Zinman-523-8201
Department of State-Lee Ann Berkinbile-647-8794
Department of Transportation-John Collins-426-4694
Department of the Treasury-Art Schissel-566-8523
Council of Economic Advisers
Agency for International Development-R. Lester-632-8404
.ntral Intelligence Agency
Environmental Protection Agency-Stead Overman-382-5414
General Services Administration
National Aeronautics and Space Administration-J.Murphy-453-1948
National Science Foundation
Office of Personnel Management-J. Woodruff-632-4682
Small Business Administration-Janine Perrignon-653-6545
U.S. Information Agency
Veterans Administration-Donald Ivers-389-3831
U.S. Postal Service-Fred Eggleston-268-2958
SUBJECT: Department of Justice testimony before the Administrative Law
and Governmental Relations Subcommittee of the House
Judiciary Committee on Revolving Door Legislation.
The Office of Management and Budget requests the views of your agency
on the above subject before advising on its relationship to the
program of the President, in accordance with OMB Circular A-19.
A response to this request for your views is needed no later than
NOON MAY 19, 1986. Hearing is May 21, 1986.
Questions should be referred to Hilda Schreiber (395-7362), the
legislative analyst in this office.
frey A. Weinbercj-for
Assistant Director for
Legislative Reference
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- ~_
05 14 86 12:59
U.S. Department of Justice
Office of Legislative and
Intergovernmental Affairs
Deputy Assistant Attorney General Washinston. D.C. 20530
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s/ (1
Mr. Chairman and Members of the Subcommittee --
I the opportunity to appear today to testify
regarding revolving door legislation. As the letter requesting
Department of Justice participation in this hearing did not ask
that we focus specifically upon particular legislative proposals,
I will generally address the issue of appropriate restraints upon
former government officials who seek to undertake employment on
behalf of foreign governments or foreign legal entities. In the
process, I will sketch out legislation which the law enforcement
community could support.
Preface
-riva
Before commencing, let me make-three-?important disclaimers.
First, the Department of Justice claims no expertise with respect
to the potential impact of such legislation upon the ability of
the Government to attract highly qualified persons to public
service. Some within the Ex*cutive Branch are strongly of the
view that such post-employment restraints would be detrimental to
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the public interest. The Committee may wish to solicit the
views of others, in the he
governmental and non-governmental
communities as to the effects, if any, such legislation might
have upon government recruitment and retention of ke g
y personnel.
Second, nothing I say today should
be construed as applying
to any matter or case now pending in the Department of justice.
Pitfalls in Hast Draftin of Criminal Justice Le ialation
At the outset, I should note that law enforcem
ent
professionals are often disconcerted by efforts, usually un-
euccesaful to rush criminal measures through the Congress in
response to perceived abuses which have neither been carefull
studied nor Analyzed. Y
Those who have conducted prosecutions
which have resulted in the incarceration of defendants, i.e.,
virtually total deprivation of civil liberties, have aunique
perspective
upon the criminal law.
among the most serious
which the government is involved.
believe that it is rarely wise to
lation
Rather,
a basis
and sobering business in
Law enforcement professionals
enact criminal ;ust~,.e
eg
st
l
~
in response to press
we should prefer to wait and see
for prosecuting wrongdoing that is
reports of alleged wrongdoing.
if present laws provide
clearly established.
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The statute books at the state level are replete with
ill advised, questionably constitutional, and virtually
unenforceable criminal statutes. At the federal level we have
our own classic example, 18 U.S.C. 3567, in which the Congress
decreed in 1909 that death is too good for some offenders;
18 U.S.C. 3567 specifies that sentencing courts imposing a
sentence of death may require that, after execution, the dead
body of the offender be dissected. The Congress was so
concerned that court-ordered dissections be carried out that
it also enacted what is now 18 U.S.C. 754 making it a federal
criminal offense to rescue or attempt to rescue dead bodies
ordered to be dissected. These two sections of Title 18 are
still on the books today. Certainly, Members of the Congress
in 1909 made'a strong statement that criminals should be dealt
with harshly .c The wisdom, good judgment, and responsibility
of the 1909 legislation are, however, open to serious question
in the enlightened 1980's. ]
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What is the Problem Bein Addressed
This leads me to the issue of whether former government
employees should be prohibited from representing foreign govern-
ments. I think the first question to ask is: what do we want
to accomplish in enacting such legislation. Certainly, we are
not simply engaged in making a statement that the Congress
condemns acceptance of foreign employment by high-level government
officials. That could be done through a strongly worded
Sense of the Congress Resolution.
Moreover, such legislation runs the risk of being mis-
s.- '. Certainly, we do not mean to suggest to our
allies overseas that all foreign governments are so evil or
corrupt that we are going to make it a federal felony for
high-level federal officials to accept employment with any
foreign government, corporation or individual. That would
reflect an isolationism and provincialism inconsistent with
our ongoing efforts to enlist the help of foreign governments
in terrorism, drug trafficking and other inter-
national problems.
Some suggest that the rationale for this legislation is
that such foreign employment can result in the disclosure of
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sensitive national security or trade information. Of course,
federal law already criminalizes the disclosure of classified
information; 18 U.S.C. 798, provides for up to ten years in prison
for such disclosures. Disclosures of national security infor-
mation can also constitute a onage under 18 U.S.C. 793, also
a ten-year felony. And compr se of our national security is
also known by a more historic term treason -- which is a
capital offense under 18 U.S.C. 2381 in time of war.
As to trade information, disclosure of confidential govern-
ment information, including trade secrets, is a misdemeanor
under I8 U.S.C. 1905 when perpetrated by a federal official. The
effect of some bills we have seen would be to provide more
serious penalties for acceptance of employment which might result
in disclosure of such information by a former government official
than is provided for an actual willful disclosure by a currently
employed government officer, an anomaly that has no place in the
federal criminal code.
Some suggest that such legislation is needed to curb in-
fluence peddling. No one endorses influence peddling and we
have laws on the books today which make certain activities by
former federal officials a criminal offense, particularly
18 U.S.C. 207. That statute has evolved gradually over a period
of more than a century and focuses upon particular conduct based
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05./14186 13:01
NO. 006 007
upon the former gover ent official's connection with the
particular matter or appearances before his former agency. The
effort in 18 U.S.C. 207 is to focus upon situations where
activities by a former government official would give him or
her an unfair advantage. We believe this focus is appropriate.
Another problem with some of the bills now being considered
is that they do not attempt to discriminate among various types
former government officials. Rather, they
of activities by
sweep broadly to render criminal any representation or advice to
any foreign government or entity without any reference whatsoever
to the nature of the employment or the nature of the former pub-
lic official's prior governmental duties. These bills would ban
beneficial and undesirable employment alike. One can imagine
foreign employment which would be in our national interest: a
by a foreign government
former Attorney General might be engaged to help eliminate corruption in the police agencies of the
of Education, to assist
foreign government; a former Secretary
in establishing a system of primary education in a developing
nation; or a former Secretary of Agriculture to assist a Third
World nation in creating a rural electrification program. Some
of the bills would not permit such beneficial activities; instead,
they would make such employment a federal felony.
By sweeping so broadly, the issue is squarely raised 4s to
whether such legislation has a rational relation to any legitimate
legislative purpose. in fact such a sweeping ban on foreign
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employment by former federal officials might well be counter-
productive.
An Alternative Approach
In light of the concern of the Congress over the appearance
problem which is created when former high-level government
officials go to work for foreign governments, we have offered
suggestions for more constructive approaches. First, is U.S.C.
207 was amended by the Congress in 1979 with the result that
federal conflict of interest statutes do not reach "behind the
scenes" advice in circumstances where direct representation of
domestic or foreign entities would currently be banned. We
believe such conduct should be reached and would suggest modifi-
cation of 207(b)(ii) to cover it. This would fill a significant
gap in current law.
Second, if more is considered necessary, consideration
should be given to a disclosure statute with civil enforcement
mechanisms. In this regard, our general approach to new measures
creating malum prohibitum offenses is to provide for administrative
or civil enforcement. Criminal sanctions should be resorted to
only where there is evidence that administrative or civil enforce-
ment has been or will be inadequate.
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O5 JT ' 14,166 13:01 ? NO. 006 009
In our view, such a proposal should:
(1) cover both domestic and foreign employment;
(2) apply only to high-level officials;
(3) apply to all three branches of government, or
at least to the executive and legislative
branches;
(4) require disclosure to the employing agency, and
to the Congress if deemed appropriate;
(5) provide for a civil injunctive action if the
employment is found to be detrimental to the
public interest;
(6) provide for civil penalties for failure to file
a disclosure statement; or criminal penalties for
willful and knowing failure to file; astir
(7) provide a sunset on the duty to report, perhaps
two to five years,
Such an approach has several advantages over bills we have
(1) it avoids sending the wrong message to our allies
overseas;
(2) it avoids the First Amendment "right to associate"
questions which arise from making it a crime to
accept employment with particular classes of firms
or with foreign governments;
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(3) it avoids problems of overbreadth by limiting
coverage to post-governmental employment which
can reasonably be expected to be detrimental
to the national interest; and
(4) it would likely be more effective than a criminal
statute as our experience with American juries
is that they are disinclined to convict for
criminal violations which cannot be shown to have
resulted in harm.
In short, we believe very strongly that the thrust of the
various legislative proposals should primarily be civil rather
than wholly criminal. I recognize that some persons may view
our proposed alternative as insufficient. As a representative
of the law enforcement community, I have an obligation to advise
you of the defects we perceive in the various proposals and to
suggest what we believe is a more appropriate approach to the
problem of influence peddling. I hope we in the Department and
in the Congress can work together in a responsible manner to
identify the evil to be eradicated and then to frame an appro-
priate and balanced response to it that does not sweep into a
criminal statute conduct which is entirely innocuous or which
can even be in the national interest of the United States.
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