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US Attorney General Nominee William Barr’s Confirmation Hearing – The False Claims Act And Whistleblowers

At the confirmation hearing for US attorney general nominee William Barr before the Senate Judiciary Committee on Jan. 15, Sen. Chuck Grassley (R-Iowa) questioned Barr about his views of the False Claims Act and the law’s “qui tam” (whistleblower) provisions.

In response to Grassley’s questions, Barr told the committee, “I will diligently enforce the False Claims Act.”

Grassley was one of the two key sponsors of the 1986 amendments to the False Claims Act and is a long-time champion of whistleblowers.

The 1986 amendments transformed a Civil War-era law into the most powerful weapon the government has to stop fraud. The False Claims Act allows whistleblowers to sue entities that are defrauding the government and to recover funds on the government’s behalf, creating a public-private partnership to stop healthcare fraud, defense contractor fraud and other types of fraud. The government has recovered more than $50 billion through qui tam cases and related criminal fines.

Taxpayers Against Fraud expressed its concerns about Barr’s previously stated views of the qui tam provisions of the False Claims Act in a letter the nonprofit, public interest group sent to the Senate Judiciary Committee on Jan. 10.

Here is a transcript of the exchange between Grassley and Barr about the False Claims Act from a transcript of the hearing by CNN:

SEN. CHUCK GRASSLEY (R-IOWA): My first question, in — as you would expect from our conversation in my office — in ’86 Reagan signed the False Claims Act. I worked hard to get that passed, especially provisions empowering whistleblowers to help government identify fraud. More than a decade ago you said the qui tam provisions in the False Claims Act were, your words, “An abomination” and were unconstitutional.

You said, you, in your words, “Wanted to attack the law,” but the Supreme Court upheld the law’s constitutionality. Prosecutors from both sides of the aisle have praised the law as the most effective tool government has to detect and actually recover public money lost to fraud.

Since 1986, the law that was passed in 1986 brought in $56 billion into the federal treasury. Most of that’s because patriotic whistleblowers found the fraud and brought the case to the attention of the government. Is the False Claims Act unconstitutional?

WILLIAM BARR: No, senator.

GRASSLEY: You (ph)…

BARR: It’s been upheld by the Supreme Court.

GRASSLEY: Do you consider the False Claims Act to be an abomination?

BARR: No, I don’t.

GRASSLEY: Does the False Claims Act benefit the taxpayer, specifically its provisions to empower and protect whistleblowers?

BARR: Yes, senator.

GRASSLEY: If confirmed, do you commit to not take any action to undermine the False Claims Act? Further, if confirmed, will you continue current Justice Department staff and funding levels to properly support and prosecute False Claims Act cases?

BARR: Yes, I will diligently enforce the False Claims Act.

GRASSLEY: Now, with all those positive answers you’d think I’d be done, wouldn’t you, with that.

(LAUGHTER)

But let me go on.

Just to show you that there is some forces out there that I’m suspicious about within the Department of Justice, we have a new Department of Justice guidance document out last year known as about the Granston Memo, provides a long list of reasons that the Department can use to dismiss False Claims Act cases. Some of them pretty darn vague, such as preserving — these — these are their words, “Preserving government resources.” Just think of all the mischief those three words can bring.

Of course the government can dismiss, obviously, meritless cases — I don’t argue with that. But even when the Department declines to participate in False Claims Act cases the taxpayer can, in many cases, still recovery financially.

So it’s important to allow whistleblowers to pursue cases even when the Department isn’t able to be involved.

Under what circumstances can or should the Justice Department move to dismiss False Claims cases?

BARR: Senator, I haven’t reviewed that memorandum so I’m not familiar with the thinking of the people in the — I think it’s the Civil Division that did that. But if I’m confirmed, I will review it and I’m — I would be glad to come and sit down with you and discuss it. And if there are areas you’re concerned about, I’d be glad to work with you on that.

GRASSLEY: Unless you find that my presumption is wrong that there’s reasons to be suspicious, I hope you’ll take into consideration my feeling about how in various suspicious ways people that are faceless bureaucrats can undermine this effort.

In circumstances where the government doesn’t intervene in False Claims cases, if confirmed, will you commit to ensuring the Department doesn’t unnecessarily dismiss False Act (sic) cases?

BARR: Yes, senator. I will — I will enforce the law in good faith.

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