Criminal Conflicts of Interest


There are primarily two criminal conflict of interest statutes in the federal codebooks – 18 U.S.C. § 207 and 18 U.S.C. § 208. They differ slightly in what they prohibit.

Section 207 – Working for the Private Sector After Government Employment

First, Section 207 deals with post-government employment. Broadly speaking, the government really doesn’t want you negotiating for the government on Friday, quitting your job, then Monday negotiating against the government about the very same things.

At the same time, prior government service is an incredibly valuable thing for private employers. Some federal workers see their time in federal service as a way to help the government and gain knowledge and skills that they can then take to the private sector. And, on its own, there’s nothing wrong with that. And it would be silly to say that a government employee who spent years learning how, say, the regulation of migratory birds works could never work on migratory bird issues after leaving the government.

Section 207 tries to balance these concerns and does so in a really complicated and baroque way. It’s not the easiest statute to understand by a long shot and there tend to be few lawyers who have substantial experience representing government employees in connection with an issue under section 207.

Section 208 – Scratching Your Own Back While Working at the Government

On the other hand, section 208’s focus is different. It deals primarily with people who are already working for the government and what they are allowed to do with others. Everyone agrees that the government wouldn’t want a person to use his government job to funnel money and work to his wife’s government contractor.

But the ways in which people and their families are set up – or others who they have personal or financial entanglements with – are complicated. And often spouses work in similar or the same industry; if you met in graduate school, you’re likely to have overlapping careers. It would be difficult to have a blanket ban on anyone working in the government in a certain area or on a contract from being married to someone in the private sector working on the same contract.

As a result, section 208 lays out a set of criminal conflict of interest provisions to govern these kinds of interactions. Section 208 is complex in its own right.

Other Concerns with Government Conflicts of Interest

One other thing that is important to note with criminal conflicts of interest is that a criminal prosecution is not the only option. These are very often investigated by agents from an Office of Inspector General; OIGs have the ability to try to have an employee disciplined or have a contractor debarred. They can also issue reports that are public and go to Congress.

Just because a conflict of interest by a government employee could be prosecuted criminally doesn’t mean that it will. How to persuade an OIG agent to look at a case when presenting it to a prosecutor is a complex process that depends a lot on the facts. Generally it turns on how much money is involved, how sympathetic the government employee is, and whether there is a viable defense. But, that said, there are plenty of other factors that can affect the decision.

Criminal Conflicts of Interest Statutes: