Officers or Employees Acting as Agents of Foreign Principals - 18 U.S. Code § 219
When you are a public official or employee of the federal government, it is understood that your first and primary loyalty is to the United States. Therefore, acting on behalf of a foreign entity while in a government position represents a clear conflict of interest that could endanger national security and national interests.
For this reason, it's a federal crime under 18 U.S.C. 219 for any public official or federal employee to act as an agent of a foreign entity while serving in their official role. If you are convicted of violating this law, you could face two years in federal prison.
18 U.S.C. 219 says, "(a) Whoever, being a public official, is or acts as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938 or a lobbyist required to register under the Lobbying Disclosure Act of 1995 in connection with the representation of a foreign entity, as defined in section 3(6) of that Act shall be fined under this title or imprisoned for not more than two years, or both.
(b) Nothing in this section shall apply to the employment of any agent of a foreign principal as a special Government employee in any case in which the head of the employing agency certifies that such employment is required in the national interest.
The head of such agency shall forward a copy of any certification under this paragraph to the Attorney General, who shall cause the same to be filed with the registration statement and other documents filed by such agent and made available for public inspection in accordance with section 6 of the Foreign Agents Registration Act of 1938, as amended.
(c) For this section, "public official" means Member of Congress, Delegate, or Resident Commissioner, either before or after he 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."
What Does the Law Say?
Simply put, 18 U.S. Code 219 makes it a federal crime for officers or employees of the United States to represent or work on behalf of foreign governments or entities while holding their positions.
The law's primary purpose is to prevent conflicts of interest and ensure that foreign entities do not unduly influence the actions of U.S. officials.
Federal law requires foreign principals to register with the government in compliance with the Foreign Agents Registration Act of 1938 (FARA) or the Lobbying Disclosure Act of 1995.
Thus, the benchmark for violating 18 U.S.C. 219 is if you are a public official or employee of the government and you act in such a manner that would have required you to register as a foreign agent under one of these laws.
What are the Key Components of the Law?
- Who is covered? Examples of "public officials" affected by this law include members of Congress, delegates, resident commissioners, and other government employees who are authorized to speak or act on behalf of U.S. interests.
- What does it prohibit? Acting as an agent for a foreign principal, which can include any representation or lobbying on behalf of a foreign government, organization, or individual that qualifies as a foreign principal under the law.
- Foreign Principal Defined: A foreign principal can be a government of a foreign country, a political party, or an individual or organization outside the U.S. that is closely aligned with a foreign government.
- No Requirement of Harm: The law does not require that the accused's actions caused harm or compromise to the U.S. Merely acting in the capacity of an agent for a foreign principal is enough to trigger the statute.
Exception to the Rule
18 U.S.C. 219 does not apply to an agent of a foreign principal who is temporarily and officially employed as a "special government employee." In this case, the employing agency must file certifications with the government that employing the foreign principal is "required in the national interest."
What Must Be Proven to Convict?
For you to be found guilty of violating 18 U.S.C. 219, the prosecution must prove all the elements of the crime beyond a reasonable doubt, including the following:
- You were an officer or employee of the U.S. government at the time of the alleged violation and
- You knowingly acted on behalf of a foreign principal. Examples include representing the interests of a foreign government, communicating with U.S. officials on behalf of a foreign entity, or lobbying for a foreign principal's policies or interests.
What Are the Related Federal Laws?
18 U.S. Code Chapter 11, bribery, graft, and conflicts of interest have several federal laws, such as the following:
- 18 U.S.C. 201 - Bribery of public officials and witnesses.
- 18 U.S.C. 202 - Definitions.
- 18 U.S.C. 203 - Compensation to Members of Congress, officers, and others in matters affecting the Government
- 18 U.S.C. 204 - Practice in the United States Court of Federal Claims or the Court of Appeals for the Federal Circuit by Members of Congress.
- 18 U.S.C. 205 - Activities of officers and employees in claims against and other matters affecting the Government.
- 18 U.S.C. 206 - Exemption of retired officers of the uniformed services.
- 18 U.S.C. 207 - Restrictions on former officers, employees, and elected officials of the executive and legislative branches.
- 18 U.S.C. 208 - Acts affecting a personal financial interest.
- 18 U.S.C. 209 - Salary of government officials and employees.
- 18 U.S.C. 210 - Offer to procure appointive public office.
- 18 U.S.C. 211 - Acceptance or solicitation to obtain appointive public office.
- 18 U.S.C. 212 - Offer of loan or gratuity to financial institution examiner.
- 18 U.S.C. 213 - Acceptance of loan or gratuity by financial examiner.
- 18 U.S.C. 214 - Offer for procurement of Federal Reserve bank loan and discount of commercial paper.
- 18 U.S.C. 215 - Receipt of commissions or gifts for procuring loans.
- 18 U.S.C. 216 - Penalties and injunctions.
- 18 U.S.C. 217 - Acceptance of consideration for adjustment of farm indebtedness.
- 18 U.S.C. 218 - Voiding transactions in violation of chapter; recovery by the United States.
- 18 U.S.C. 219 - Officers and employees acting as agents of foreign principals.
- 18 U.S.C. 220 - Illegal remunerations for referrals to recovery homes, clinical treatment facilities, and laboratories.
- 18 U.S.C. 224 - Bribery in sporting contests.
- 18 U.S.C. 225 - Continuing financial crimes enterprise.
- 18 U.S.C. 226 - Bribery affecting port security.
- 18 U.S.C. 227 - Wrongfully influencing a private entity's employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch.
What are the Penalties?
Violating 18 U.S. Code 219 carries significant penalties designed to deter misconduct among public officials. If you're convicted of this federal crime, you could face:
- Fines of up to $250,000 and
- Up to two years in federal prison.
What are the Common Defenses?
Suppose you're accused of acting as an agent of a foreign entity while serving as a public official or government employee. In that case, a skilled federal criminal defense attorney can help by implementing one or more key defenses to combat the charges. Common defenses include, but are not limited to:
- Lack of Intent or Knowledge: Arguing that you did not knowingly or intentionally act as an agent of a foreign principal. Prosecutors don't have to prove intent to cause harm. Still, they do need to prove that you knew you were representing a foreign principal and that they were doing so while serving as an officer or employee of the U.S. Without this knowledge, there can be no violation of the law. For example, suppose someone engaged in certain activities at the request of a foreign entity but was unaware that this entity qualified as a foreign principal. In that case, it may serve as a valid defense.
- Authorization or Compliance: Proving that you had proper authorization or complied with reporting requirements. This defense is particularly effective in cases where the accused filed proper notifications, but the government failed to process or approve them in a timely manner.
- Acts Outside the Scope of Employment: The statute is limited to acts committed while the accused was an officer or employee of the U.S. government. If you can show that the actions in question occurred outside the scope of your employment, either before or after your service, this may serve as a strong defense.
For more information, contact Eisner Gorin LLP, a criminal defense law firm in Los Angeles, California.
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