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Fwd: Requested Post-Employment Guidance for John

From:eryn.sepp@gmail.com To: john.podesta@gmail.com Date: 2015-04-01 02:37 Subject: Fwd: Requested Post-Employment Guidance for John

---------- Forwarded message ---------- Hi Eryn, I hope this email finds you well and rested(?). When Sam and I briefed John before he left the White House, he requested guidance on a specific post-employment law, 18 U.S.C. 207(b), a criminal prohibition. I was hoping you could forward the guidance below to him. Please contact me or Sam if you or John have any questions. Thank you in advance. V/r, Leigh Leigh Jason Francis Deputy Ethics Official Office of the White House Counsel (202) 456-1068 Leigh_J_Francis@who.eop.gov GUIDANCE__________________________________________________ John, You requested advice on when the post-employment law at 18 U.S.C. 207(b) would prohibit you from representing, aiding or advising a private person or organization concerning any ongoing treaty negotiation. Specifically, you requested this advice because you would like to participate in the UNFCC COP 21. Essentially, for one year after you leave the Government, the law prohibits you from representing, aiding or advising a private person or organization *on the basis of covered information*. This prohibition is a limitation on the use of nonpublic information, not a limitation on involvement. I will now describe a few of the elements in greater detail, and then provide you with some guidance so that you can steer clear of this prohibition. I will begin by defining exactly what ongoing trade or treaty negotiations are, such that they would be covered by this prohibition. First, the term “trade negotiation” is defined in a law that has sunset. As such, no trade negotiations are covered by this criminal prohibition. On the other hand, the term “treaty” means an international agreement made by the President that requires the advice and consent of the Senate. Second, a negotiation on a treaty commences to be ongoing at the point when both: 1) the determination has been made by a competent authority that the outcome of a negotiation will be a treaty, and 2) discussions with a foreign government have begun on a text. Third, covered information refers to agency records which were accessible to you, and which you knew or should know were designated as exempt from disclosure under the FOIA. While the White House Office is not subject to the FOIA, covered information should be understood to include, e.g., any confidential, classified, sensitive, or deliberative information. Covered information may include the US Government’s negotiating positions or draft texts. Fourth, *you can only violate this prohibition* if your representation, aid, or advice either *involves a disclosure of covered information to any person, or could not have been made or rendered had you not had actual knowledge of the covered information*. Finally, to violate this prohibition it is not required that you have an employment relationship with the private person or organization, or be compensated for your services. Going forward, I would advise you that you may participate in the UNFCC COP 21 or any other activity, but I would recommend that if you want to be involved in or provide any guidance on ongoing treaty negotiations covered by the prohibition (i.e., those ongoing treaty negotiations you worked on while at the White House), that you not disclose or in any way use in your analysis, guidance, or advice any information that is not publicly available. If this is not feasible, I would recommend that you excuse yourself from any meeting or other activity that involves the discussions of treaty negotiations covered by the prohibition. If you have any questions or concerns, please do not hesitate to reach out to me or Sam. Thank you. V/r, Leigh Francis Leigh Jason Francis Deputy Ethics Official Office of the White House Counsel (202) 456-1068 Leigh_J_Francis@who.eop.gov