Under a federal criminal statute at 18 U.S.C. § 208, federal employees are forbidden from participating “personally and substantially in his official, governmental capacity in a matter” where the employee “knew that he, his spouse, or another statutorily-listed person had a financial interest” in a particular matter. The Office of Government Ethics (OGE) has promulgated regulations that have clarified to some extent the terms of this statute.
In order to participate “personally and substantially” in an action, a federal employee must have done more than participated in a ministerial or procedural role. Prosecutors may prove that the defendant had requisite knowledge by proving that the defendant knew about the forbidden financial interest, even if the employee did not intend to violate the statute. Courts and the OGE have further established that the statute applies only where there is a “real possibility” of gain or loss as a result of the matter.