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Section 2 of the Ethics Executive Order

 

           Section 2 of the Ethics Executive Order requires all appointees of the Obama Administration, not merely those who were former lobbyists, to execute the following pledge: “I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” 

            The term “particular matter involving specific parties” is a term of art used in federal law, 18 U.S.C. § 207, and regulations, 5 C.F.R. § 2641.201(h).  It is also used in Rule 1.11 of the D.C. Rules of Professional Conduct, which prohibits a former government lawyer from accepting employment in connection with a matter involving a specific party or parties if he or she participated in that matter while in public service. 

            At first glance, Section 2 of the E.O. appears to contain a significant internal contradiction.  The section explicitly refers to its applicability to “regulations.”  However, the definition of a “particular matter involving specific parties” excludes almost all regulations.  As explained by the Office of Government Ethics, “[l]egislation or rulemaking of general applicability and the formulation of general policies, standards or objectives, or other matters of general applicability are not particular matters involving specific parties.”  73 Fed. Reg. 36,168, at 36,193 (June 25, 2008). 

            This apparent contradiction, however, can be resolved upon a close reading of Section 2 and its definitions.  It is true that a regulation would not normally constitute a “particular matter involving specific parties” within the meaning of Section 2.  However, the definitions in the Executive Order provide that a “particular matter involving specific parties” has the same meaning as under federal law, “except that it shall also include any meeting or other communication relating to the performance of one’s official duties with a former employer or a former client, unless the communication applies to a particular matter of general applicability and participation in the meeting or other event is open to all interested parties.”  Thus, even though a regulation would not be a “particular matter involving specific parties” in and of itself, it will become so to the extent that the official in question has communications about it with his former employer or client (except in the context of a meeting or event that is open to all interested parties). 

            To illustrate how this would work, suppose that Covington & Burling, the former employer of Attorney General Eric Holder, is representing two clients.  Client A is involved in litigation against the Department of Justice.  Section 2 of the E.O. prohibits Holder from participating in discussions or decisions regarding this litigation, regardless of whether Covington communicates with him about it. 

            On behalf of Client B, on the other hand, Covington is seeking to persuade the Department of Justice to adopt a regulation or policy of general applicability.  Holder is not prohibited from involvement in discussions or decisions about this matter; however, he is prohibited from having communications with Covington about it.

 

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