requirement of Rule XLIII (1) of the House of Representatives that a Member "conduct himself at all times in a manner which shall reflect creditably on the House of Representatives."

b. The Sanction for Violation.-Violation of 18 U.S.C. § 1001 is a felony punishable by a fine of not more than $10,000 and/or by imprisonment for not more than 5 years. The severity of the criminal sanction indicates the serious threat to the proper functioning of governmental departments that may be posed by false statements. In view of the potentially broad range of circumstances that may be presented by false statement cases, the determination of the appropriate sanction should be made on a case by case basis. A severe sanction, however, would appear warranted in an aggravated case, especially if calculated to conceal corrupt behavior or to frustrate an investigation ordered by the House itself.

5. Conspiracy To Defraud the United States

The broadest criminal statute designed to safeguard the proper functioning of governmental processes is 18 U.S.C. § 371. That statute, prohibiting conspiracies to defraud the United States or to commit any offense against the United States, provides:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both, (Emphasis added.)

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

a. The Elements of the Offense. In order to establish the offense of conspiracy to defraud the United States there must be proof that (1) two or more persons (2) conspired (3) to defraud the United States or agency thereof, and (4) engaged in any act in furtherance of the conspiracy. The element of conspiracy merely requires proof of an agreement between two or more persons to engage in the proscribed conduct. There need not be a formal or an express agreement to establish a conspiracy; and agreement may be implied from conduct indicating a mutual understanding to pursue a common design or purpose. The critical language defining the scope of the offense is the phrase "to defraud the United States." The Supreme Court has found that while the phrase "means primarily to cheat the Government out of property or money" it also encompasses conduct which "interfere(s) with or obstruct(s) one of [the Federal Government's] lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest." Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); see Glasser v. United States, 315 U.S. 60, 66 (1942). There is no requirement that "the Government shall be subjected to property or percuniary loss by the fraud... Hammerschmidt v. United States, supra, 265 U.S. at 188. It is sufficient if the Government's "legitimate official action and purpose shall be defeated" by fraudulent conduct. Id.

This statute has been used on a number of occasions to punish the use of congressional influence for private advantage. For example, an agreement between a Congressman and another person under which

the Congressman was paid to exert his influence to seek to persuade the Department of Justice to dismiss a criminal indictment was held to constitute a conspiracy to defraud the United States of its right to unobstructed performance of its lawful government functions. See United States v. Johnson, 383 U.S. 169 (1966). Similarly, an indictment charging an assistant to the Speaker of the House with agreeing with another person to use the influence of the Speaker's Office to exert influence on Government agencies was prosecuted under 18 U.S.C. § 371. See United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y. 1970). The Sweig opinion indicates that the receipt of payments by Government officials for the performance of official acts constitutes "dishonest" conduct sufficient to bring any resulting interference with lawful governmental functions within the prohibition against conspiracy to defraud the United States. Id at 1156. Indeed, in Sweig, the court concluded that it was not essential to allege that the assistant to the Speaker had taken money or any other items of value so long as he participated in a design to interfere with the Government's lawful right to have its business conducted unhindered and unobstructed by undue pressures and influences. Id.

It thus appears that participation by a Member in an agreement to intervene in matters before Federal agencies or executive departments may come within the prohibition contained in 18 U.S.C. § 371, if the scheme involves personal gain for the Member, or includes misrepresentations or material omissions. Similarly, section 371 would apply to an agreement by a Member of Congress to promote the interest of an agent of the Korean Government or a representative of Korean business interests, if he was acting as a result of some favor or in expectation of personal aggrandizement. In practice, such ageements are likely to involve conduct outlawed by the acceptance of compensation for services, bribery,15 and gratuity statutes discussed previously. The amorphous contours of the conspiracy to defraud statute, however, may encompass conduct that does not meet one or more of the particularized elements of these other statutes.

It is not clear whether 18 U.S.C. § 371 reaches agreements to impair, obstruct, or defeat the lawful and proper functioning of Congress as opposed to a Federal agency or executive department. But there is nothing in the language of the statute itself that precludes such an application, and broad coverage would promote the statutory purpose of securing the wholesome administration of the laws and affairs of the United States. See United States v. Moore, 173 F. 122 at 131 (9th Cir. 1909). As a practical matter, however, any dishonest or deceitful scheme to interfere with the proper functioning of Congress is likely to violate a more definite statutory prohibition or standard of conduct. It appears preferable where possible to employ more definite and focused standards than that contained in section 371's prohibition of conspiracies to defraud the United States.

b. The Sanction for the Violation.-A criminal conviction for conspiracy to defraud the United States may be punishable by a fine of not more than $10,000, imprisonment for not more than 5 years, or

15 Unlike the bribery statute, however, the evil is not the acceptance of something of value with the intent to be influenced but the agreement to interfere with or obstruct the lawful discharge of Government's business.

both. Since this offense is treated as a serious crime affecting the proper functioning of the Federal Government, the House would be warranted in imposing a severe sanction upon a Member found to have violated the statute.

6. Engaging in Private Correspondence with Foreign Governments The Logan Act, now codified at 18 U.S.C. § 953, provides as follows: Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined not more than $5,000 or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.

This provision was adopted in 1799 in response to the actions of Dr. George Logan, a Pennsylvania Quaker who journeyed to France in 1798 to attempt to ease strained relations between that country and the United States. Logan was denounced by the Federalists for meddling in the province of foreign affairs entrusted to the Executive. The year following Logan's travels, Congress enacted legislation to bar future efforts at private diplomacy.

a. The Elements of the Offense.-Assistant Attorney General Charles Warren outlined the elements of the offense created by the Logan Act in a 1917 memorandum. The memorandum states in pertinent part:

THE ELEMENTS OF THE CRIME

The actions made criminal by the statute fall into two classes: (1) Those performed by United States citizens wherever resident or abiding; (2) those performed by a person resident in the United States, whether alien or citizen.

(1) The actions forbidden to the United States citizens are:

Or

Or

(a) Without the permission or authority of the Government; (b) Directly or indirectly;

(c) To commence or carry on any verbal or written correspondence or intercourse with any foreign Government or any officer or agent thereof,

(d) To counsel, advise or assist in any "such correspondence" i.e.. in any verbal or written correspondence by a United States citizen with any foreign Government or any officer or agent thereof;

(e) With an intent to influence the measures or conduct of any foreign Government or any officer or agent thereof in relation to any disputes or controversies with the United States,

(f) With an intent to defeat the measures of the Government of the United States.

(2) The actions forbidden to persons resident within the United States, whether alien or citizen, are: to counsel, advise or assist in

the verbal or written correspondence, or intercourse made criminal as above, with the intent designated as above. History of Laws Prohibiting Correspondence With a Foreign Government and Acceptance of a Commission, Senate Document No. 696, 64th Cong., 2d Sess. 9-10 (1917).

The precise reach of this statute is quite clouded, and it appears that there has never been a prosecution for violation of the Logan Act in the 178 years since it was enacted. The scant judicial references to the provision, however, suggest that at least the portion of the Act procorrespondence with a foreign Government with an "intent

to defeat the measures of the United States" may be unconstitutionally vague. Waldron v. British Petroleum Co., 231 F. Supp. 72, 88-89 and n. 30 (S.D.N.Y. 1964).16 Apart from vagueness problems, the statute suffers from evident defects when placed next to the First Amendment, and is in any event likely to be unconstitutionally overbroad.

Furthermore, even assuming the validity of the Act, there is a substantial question whether all correspondence between a Member of Congress and a foreign government relating to disputes or controversies with the United States would be barred under the Logan Act since its prohibition is limited to citizens acting "without authority of the United States." While the conduct of foreign affairs is entrusted to the Executive by Article II of the Constitution, and the President is sometimes termed the "sole organ" of the Nation in foreign relations,1? Members of Congress have an important, independent role in some of these activities. Apart from the Senate's responsibilities relating to treaties and ambassadors, the House exercises responsibilities in regulating international trade, foreign aid, military assistance, and the Armed Forces. Accordingly, Members of Congress may well have authority to engage in direct contacts with representatives of foreign governments on matters pertinent to their legislative responsibilities. b. The Sanction for Violation. Although the statute provides for substantial criminal penalties (a fine of not more than $5,000 and/or imprisonment of not more than 3 years), no investigation or punishment dependent on a violation of the Logan Act would be warranted in view of the serious question regarding the statute's constitutionality and its applicability to official actions of Members of Congress. 7. Acting as Agent for a Foreign Principal

In 1966, Congress adopted amendments to the Foreign Agents Registration Act of 1938. One of the amendments provided for the creation of a new conflict-of-interest section making it a felony for an officer or employee of the United States to act as an agent of a foreign principal required to register under the Foreign Agents Registration Act. This section, codified as 18 U.S.C. § 219, provides in pertinent part:

Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, including the District of Columbia, is or acts as an agent of a foreign principal required to register under the Foreign Agents Registration Act of

16 The Waldron decision rejected the argument that the Logan Act had been abrogated by desuetude. Id. at 89 n. 30.

17 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); see also United States v. Pink, 315 U.S. 203, 229 (1942); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964).

1938, as amended, shall be fined hot more than $10,000 or imprisoned for not more than two years, or both.

The purpose of the Foreign Agents Registration Act is described in the House Report on the 1966 amendments:

The act is intended to protect the interests of the United States by requiring complete public disclosure by persons acting for or in the interests of foreign principals where their activities are political in nature or border on the political. Such disclosures as required by the Act will permit the Government and the people of the United States to be informed as to the identities and activities of such persons and so be better able to appraise them and the purposes for which they act. H. Rept. No. 1470, 89th Cong., 2d sess. 2 (1966).

The conflict of interest provision, 18 U.S.C. § 219, goes beyond mere disclosure and prohibits officers and employees of the United States from acting as agents of a foreign principal. The prohibition complements the overall purpose of the disclosure requirement by assuring that the government officials, for whose benefit the disclosure of foreign interests is required, will not themselves be biased in favor of the policies urged by agents of foreign principals.

a. The Elements of the Offense. As is evident from the language of 18 U.S.C. § 219, the critical elements of the offense rest on the definition of an "agent of a foreign principal" and the scope of the exemptions to the general requirement that an agent of a foreign principal must register with the Attorney General. From among the lengthy definitions of an agent of a foreign principal and the list of exemptions to the registration requirement contained in the 1966 amendments to the Foreign Agent Registration Act, the following excerpts are most pertinent:

An "agent of a foreign principal" is defined in 22 U.S.C. § 611 as follows:

(c) Except as provided in subsection (d) of this section, the term "agent of foreign principal" means

(1) any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person

(i) engages within the United States in political activities for or in the interests of such foreign principal;

(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;

(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or

(iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States; and

(2) any person who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection." [Emphasis added].

All persons acting as an agent of a foreign principal are required to register with the Attorney General pursuant to 22 U.S.C. § 612(a) unless exempted from registration by 22 U.S.C. § 613. The latter provision states: