Designated Agency Ethics Officials
Page 2
control by the principal over the agent who acts on his or
her behalf.’” OGE Informal Advisory Letter 00 x 10, p. 2
(quoting OGE Informal Advisory Letter 98 x 18 and Luttig
Memorandum, infra, n. 2). In fact, OGE Informal Advisory
Letter 98 x 18 addresses the analogous situation of a
Federal employee writing a letter of support for a former
colleague in connection with a sentencing hearing. OGE
explained that the mere fact that such a letter may benefit
the person for whom the support letter is being written does
not mean that the Federal employee writing the letter is
necessarily under the control of that person, i.e., acting
as his agent.
1
Section 205 does not appear to apply in the case of a
Federal employee submitting an immigration support letter.
As explained above, in order to act as another’s agent, the
principal must exercise at least some control over the
agent. In the case of writing an immigration support
letter, the author of the letter typically is free to write
his personal opinion regarding the alien’s abilities and
character. Generally, a Federal employee who writes an
immigration support letter and submits the letter to an arm
of the Federal Government would not normally be "act[ing] as
agent or attorney" for another within the meaning of the
statute. In the unusual case where the alien did somehow
exert control over the Federal employee in drafting and
submitting the letter, the Federal employee would be the
1
When analyzing this issue, OGE relied largely on a
1990 opinion of the Office of Legal Counsel at the
Department of Justice determining that a Federal employee
who submits an affidavit to the President in support of a
pardon for another does not violate 18 U.S.C. § 207 if the
Federal employee is expressing his personal opinion and not
acting as agent for the pardon seeker. Memorandum of
October 17, 1990, from J. Michael Luttig, Assistant Attorney
General, Office of Legal Counsel, to Michael Boudin, Deputy
Assistant Attorney General, Antitrust Division, regarding
Application of 18 U.S.C. § 207(a) to Pardon Recommendation
Made by a Former Prosecutor [hereinafter Luttig Memorandum].
Though the prohibitive language of section 207 differs
slightly from the language found in section 205, both
phrases address the same representational conduct. The
Office of Legal Counsel explained that “[a]n agency or
representational relationship entails at least some degree
of control by the principal over the agent who acts on his
or her behalf.” Luttig Memorandum p. 6. Cf
. O’Neil v.
Dept. of Housing and Urban Development, 220 F.3d. 1354, 1360
(Fed. Cir. 2000) (requiring, as an element of the common law
definition of “agency,” that the principal exercise some
control over the would-be agent).