BRIBERY OF FEDERAL EMPLOYEES

THURSDAY, JUNE 14, 1951

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met at 10:45 a. m., pursuant to call, in room 424, Senate Office Building, Hon. Warren G. Magnuson (chairman of the subcommittee) presiding.

Present: Senator Magnuson.

Present also: Senators Ecton and Williams, and J. C. Ruddy, professional staff member.

Senator MAGNUSON. The subcommittee will come to order.

The hearing this morning is on S. 974, a bill to strengthen the law with respect to bribery and graft. A copy of the bill will be inserted. in the record at this point.

(S. 974 is as follows:)

[S. 974, 82d Cong., 1st sess.]

A BILL To strengthen the law with respect to bribery and graft

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 201 of title 18 of the United States Code is amended to read as follows:

" 201. Offer to officer or other person.

"Whoever directly or indirectly promises, offers, or gives, or commits any overt act intended or designed to be or lead to a promise, offer or gift of, any money, emolument, profit, advantage, benefit, position, employment, opportunity, advancement or thing of value or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value, to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or by authority of any such department or agency or to any officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or both Houses thereof, with intent or design to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent or design to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both.

"This section shall not apply to violations of section 212 of this title." SEC. 2. Section 202 of title 18 of the United States Code is amended to read as follows:

"§ 202. Acceptance or solicitation by officer or other person.

"Whoever, being an officer or employee of, or person acting for or on behalf of, the United States, in any official capacity, under or by virtue of the authority of any department or agency thereof, or an officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or of both Houses thereof, directly or indirectly asks, solicits, seeks, accepts, or receives, or

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commits any overt act intended or designed to obtain any money, or any check, order, contract, promise, offer, gift, emolument, profit, advantage, benefit, position, employment, opportunity, advancement, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, with intent or design to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both; and shall forfeit his office or place and be disqualified from holding any office of honor, trust, or profit under the United States.

"This section shall not apply to violations of section 213 of this title."

SEC. 3. Chapter 11 of title 18 of the United States Code is amended by adding at the end thereof the following new sections:

"§ 224. Former officers and employees required to report employment with Government contractors.

"Whoever, having been employed in any agency of the United States, including commissioned officers assigned to duty in such agency, within two years after the time when such employment or service in an agency of the United States has ceased, knowingly shall accept, receive, or enter into any employment, appointment, agency or service with or for any private individual, firm, company, corporation or contractor which, during the period of service of such officer or employee in an agency of the United States, transacted business with such agency, and shall not promptly notify in writing (1) the agency concerned and (2) the General Accounting Office, shall be fined not more than $2,000 or imprisoned not more than six months, or both.

Ҥ 225. Employers of former officers or employees required to report.

"Whoever knowingly shall employ, appoint, or accept the services of, any person employed in an agency of the United States, including commissioned officers assigned to duty in such agency, within two years after the time when such employment or service in an agency of the United States has ceased, and shall not promptly notify in writing (1) the agency concerned and (2) the General Accounting Office, shall be fined not more than $2,000 and imprisoned not more than six months, or both."

Senator MAGNUSON. We shall be glad to hear from you, Colonel, on what you have to say regarding this bill.

STATEMENT OF COL. MARTIN MENTER, JUDGE ADVOCATE GENERAL'S OFFICE, UNITED STATES AIR FORCE

Colonel MENTER. Mr. Chairman, I have a prepared statement, a copy of which I believe you have before you. It has been cleared with the Departments of the Army, the Navy, and the Air Force, and the Secretary of Defense, as always, but, in view of the time, we have not been able to clear it through the Bureau of the Budget.

Senator MAGNUSON. You speak for the Department of Defense? Colonel MENTER. Yes. I can either read the statement or submit it. Senator MAGNUSON. Put it in the record, and then tell me what your views are on the bill.

Colonel MENTER. All right, sir. (The statement is as follows:)

STATEMENT BY A DEPARTMENT OF THE AIR FORCE WITNESS CONCERNING S. 974, A BILL TO STRENGTHEN THE LAW WITH RESPECT TO BRIBERY AND GRAFT Mr. Chairman, sections 1 and 2 of the bill contain amendments to sections 201 and 202 of chapter 11 of title 18 of the United States Code. Chapter 11 contains the sections concerning "bribery and graft," and sections 201 and 202 thereof concern actions intended to influence decisions of Government personnel in discharge of official functions. The amendments proposed to these sections clearly fall within the purview of the title of S. 974. They seek to extend such sections

to include additional recited actions. However, insofar as the amendments seek to substitute "design" as an alternative to "intent" (see p. 1, line 7; p. 2, lines 7, 11; p. 3, lines 7, 12), nothing is gained as both terms as used herein are believed synonymous. Deletions of the proposed term "design" is recommended.

Section 3 proposes the addition of two new sections to chapter 11 of title 18 of the United States Code, to be designated as sections 224 and 225. These proposed sections prescribe a mandatory fine of not more than $2,000 or imprisonment of not more than 6 months, or both, for the failure of the persons recited to "promptly notify in writing" the General Accounting Office and the other Government "agency concerned." Under the proposed section 224, these requirements and possible penalties would apply to any person who within 2 years after leaving "employment" of an agency of the United States knowingly enters into the employment of any private individual or firm that "transacted business" with the Government agency during the period of his employment therein. Under the proposed section 225, the notification requirements and possible penalties would apply to the individual or firm who employs a former Government employee within 2 years after such Government service shall have terminated. The latter section does not contain the requirements of the proposed section 224 that the employer shall have "transacted business" with the Government agency concerned or that the employer be a "private" agency or firm. Commissioned officers are expressly included in both proposed sections 224 and 225 as personnel "employed in an agency of the United States.'

It is earnestly submitted that the proposed sections 224 and 225 would not accomplish the declared purpose of the bill: "to strengthen the law with respect to bribery and graft." The scope of these sections, however well-meaning, is too encompassing. It is believed an unjust requirement to impose upon citizens who render honorable Government service. It will constitute an unnecessary harrassment of former Government employees and the prospective employers, governmental or private. It will handicap former Government employees in obtaining gainful private employment and consequently would also deter qualified private citizens from accepting commissions in the Reserve forces of the armed services. It would further impose an administrative burden on each Government "agency concerned" adversely disproportionate to the protection provided the Federal Government.

The proposed section 224, after adopting the initial phraseology of section 284 of title 18 of the United States Code, abandons the limited class there concerned for an indefinite class which would embrace all categories of personnel, from the lowest grade charwoman to the highest paid employee or commissioned officer of an agency. A Reserve officer on active duty for a training period of 60, 30, or even 15 days, appears to be included. A Reserve officer on release from active duty following a tour of combat duty in Korea would have to report under this section to his military department and the General Accounting Office on acceptance of private employment, regardless of the nature of such employment, if the employer "transacted business" with his military department while he was on active duty. The term "transacted business" is not defined in the proposed section. The requirements of this section would apply to a Reserve officer ordered to active duty without his consent and who has a statutory entitlement to return to his former position. On demobilization following an emergency, hundreds of thousands of former Government personnel will knowingly accept employment with individuals or firms that "transacted business" with their former Government agency. Many of these people will not know of this statutory requirement, yet after rendering honorable wartime services, on return to normal peacetime pursuits they shall have committed a misdemeanor.

Under proposed section 225, employers are required to render the required reports on employment of any person who within the 2 years preceding was a Government employee. It is reasonable to assume that in a competitive labor market employers may decline to employ former Government employees, thus unjustly handicapping such personnel. The vast breadth of this section is readily apparent by the fact that a literal application of its terms would require a housewife to render the required reports when she temporarily employs a charwoman or messenger who has severed his Government employ within the two preceding years. A literal application of this section would also appear to include even Government personnel agencies and corporations as "employers.”

The enactment of section 3 of S. 974 is not recommended. In lieu thereof continued vigilance on the part of Government agencies for detection of violation of existing laws, such as section 284 of title 18 of the United States Code, and of implementing regulations of the agency concerned. For example, in the Depart

ment of the Air Force, a general policy is prescribed in Air Force Regulation No. 30-30, June 18, 1948, which states:

"2. General Policy.-Former personnel and retired officers of the aforementioned services will not be permitted to deal with the Department of the Air Force in a representative capacity in any matter, including claims, if the individual concerned personally considered the matter or gained personal knowledge of the facts thereof while connected with these services. The same restriction is applicable to a person who is not included among such former personnel if he is directly associated in the particular matter involved with a person who is covered by the preceding sentence."

This regulation further expressly provides that—

"3. Former Personnel, Both Military and Civilian.

c. In any matter, including claims, which involves representation by a person whom the Government representative concerned has reason to believe may be a former member whose incumbency has been terminated within less than two years or where there is reason to believe that a violation of the policy expressed in paragraph 2 may be involved, an affidavit will be requested of the former member stating:

"(1) His former connection with the Department of the Air Force, Department of the Army, the War Department, or the Army, giving the date of entrance on duty and the date of termination thereof;

"(2) A statement whether his duties in such former connection related to subject matter of the nature of that involved in his representation;

(3) That while he was connected with the Department of the Air Force, the Department of the Army, the War Department, or the Army, the matter was not pending therein, or if it was so pending:

"(a) That he gave no personal consideration to it and gained no personal knowledge of the facts thereof while so connected;

“(b) That he is not and will not be associated in the particular matter with any person who has personally considered it or gained personal knowledge of the facts thereof while connected with the Department of the Air Force, the Department of the Army, War Department, or the Army;

"(4) That his employment in the matter is not prohibited by the statutes cited in this paragraph.

"d. Where the statements in such affidavit are negative and it does not otherwise appear that a violation of the policy or statutes set forth above is involved, representation will be permitted, and the affidavit will be filed with the papers in the case. Where it is clear that a violation of the policy or statutes set forth above is involved, representation will not be permitted, and the record will so indicate.

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Colonel MENTER. The first two sections of this bill amend existing provisions of title 18 of the Criminal Code, that chapter on bribery. The only comment I have on those two sections is the insertion of the term "design" in various places as an alternative to the word "intent." It seems to me that where knowingly committing an act which is an offense goes to the state of mind, and while you say that a man commits the act knowingly, you must show he has the intent or you must show he has the design. It seems to me that as far as criminal law is concerned, the terms "intent" and "design" are identical. If there is a difference, I do not think the difference would apply in criminal law.

Senator MAGNUSON. Of course it is correct that most criminal statutes do not use the word "design" but use only the word “intent." Colonel MENTER. Yes.

Senator MAGNUSON. That is a matter of most criminal codes.

Now, on that point, Senator Williams is the author of the bill here. Maybe he might be able to give us some reason or give his reason why the word "design" was added to the bill.

Senator WILLIAMS. That was added at the request of the Comptroller General who thought that with a change of language to that extent it would be more applicable. There is very little difference between the meaning of the two words. It would not be objectionable to having both in. It is merely that you are sure it is covered, that is the reason it was added.

Senator MAGNUSON. Colonel Menter, you will notice that in line 6 of section 201 of the bill, they say:

Whoever directly or indirectly promises, offers, or gives, or commits any overt act intended or designed to be or lead to a promise, offer, or gift of, any money, emolument, property, advantage, benefit, position, employment, opportunity, advancement or thing of value

They add all those words to the present statute which now reads: Whoever promises, offers, or gives any money, or thing of value or makes or tenders

What do you say about that language?

Colonel MENTER. On the use of the words "designed to be or lead to a promise," I can see where that perhaps would broaden the introduction to the various things which would be wrong, but when it gets down, Mr. Chairman, to the recitation of the purpose on line 10, that is where I do not believe there is a difference in meaning, "with intent or design to influence his decision." It seems to me that both of those terms there go to the state of mind of the individual who is trying to affect the Government employee or Congressman in the discharge of official duties and the wrongdoer in the case would have a state of mind which is to influence the man's decision one way or the other. Therefore, it is with the intent to influence a decision or with a design to influence a decision. I think they say the same thing. Senator MAGNUSON. Of course, if you have the design you have the intent.

Colonel MENTER. That is my point.

Senator MAGNUSON. And if you have the intent you have the design.

Colonel MENTER. Yes.

Senator MAGNUSON. Senator, why did the Comptroller General think that would help it or strengthen it?

Senator WILLIAMS. Not being an attorney, I do not know what was behind it, but the Comptroller General and the legislative counsel recommended putting that language in, and of course I accepted that decision.

Senator MAGNUSON. There is a letter here from the Comptroller General which probably should go into the record at this point. It is very short. I will read it:

Hon. WARREN G. MAGNUSON,

JUNE 13, 1951.

Chairman, Subcommittee on Improvements in the Federal Criminal Code,

United States Senate.

MY DEAR MR. CHAIRMAN: Reference is made to your letter of June 5, 1951, advising that your subcommittee will be pleased to have the views of the General Accounting Office on S. 974 (82d Cong.), entitled "a bill to strengthen the law with respect to bribery and graft," and hearings scheduled for June 14, 1951.

I regret that representatives of the General Accounting Office will be unable, because of previous commitments, to appear and testify at the time set for the hearing on S. 974. I am sure you will understand the need for careful advance planning for disposition of the small force of qualified people available here.