United States:
U.S. Trade Representative Pre- And Post-Employment Restrictions
12 April 2017
Holland & Knight
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Christopher DeLacy is a partner at Holland &
Knight's
Washington, D.C. office
While many are familiar with the federal government's myriad
post-employment restrictions, less well known are
pre-employment restrictions. One example of a pre-employment
restriction is contained in the
Lobbyist Disclosure Act which in Section 21 contains the
following pre-employment restriction which is codified at 19 U.S.C. § 2171(b)(4):
(4) A person who has directly
represented, aided, or advised a foreign......in any trade
negotiation, or trade dispute, with the United States may not be
appointed as United States Trade Representative or as a Deputy
United States Trade Representative.
This provision has been scrutinized recently in connection with
the current U.S. Trade Representative (USTR) nominee and
the
White House has weighed in with a Clinton-era Department of
Justice Opinion stating the provision is unconstitutional...and
thus has no legal effect. The nomination is scheduled to be voted
on by the Senate Finance Committee on April 6, 2017 and this issue
is likely to come up again in connection with the vote.
In addition to this pre-employment restriction, the USTR and
Deputy USTR are subject to a lifetime post-employment band, which
is codified at 18 U.S.C. § 207(f)(2):
(f) Restrictions Relating to Foreign
Entities.
(2) Special rule for trade
representative.-With respect to a person who is the United States
Trade Representative or Deputy United States Trade Representative,
the restrictions described in paragraph (1) shall apply to
representing, aiding, or advising foreign entities at any time
after the termination of that person's service as the United
States Trade Representative.
Both provisions key off of definitions contained in the
Foreign Agents Registration Act and referenced in 18 U.S.C. § 207(f)(3):
(3) Definition.- For purposes of this
subsection, the term "foreign entity" means the
government of a foreign country as defined in section 1(e) of the
Foreign Agents Registration Act of 1938, as amended, or a foreign
political party as defined in section 1(f) of that Act.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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