William Barr’s troubling history with whistleblowers
© Greg Nash

Every whistleblower should be concerned over President Donald TrumpDonald John TrumpTrump cites tax cuts over judges as having biggest impact of his presidency Trump cites tax cuts over judges as having biggest impact of his presidency Ocasio-Cortez claps back at Trump after he cites her in tweet rejecting impeachment MORE’s nomination of William Barr as Attorney General.  While serving as Assistant Attorney General under the first President Bush, Barr authored an infamous memorandum arguing that the whistleblower provisions of the False Claims Act were unconstitutional.

Barr stood alone among top Justice Department officials in vehemently opposing the whistleblower law. His arguments were rejected by President Bush’s solicitor general, attorney general, and all subsequent key leaders within the DOJ.  But years after leaving office, and after the U.S. Supreme Court ruled unanimously that the False Claims Act was constitutional, Barr continued his constitutional criticisms of the False Claims Act, attacking the whistleblower provisions as an “abomination.”

ADVERTISEMENT

Although his arguments against the False Claims Act have long been discredited, his underlying reasoning reveal a deep-seated animus against whistleblowers. The statute for which Barr labeled an “abomination” was originally signed into law by President Abraham Lincoln on March 2, 1863.  Its goal was simple: empower citizens to expose fraud in defense contracting during the Civil War and reward them if their cases could be proven. The provision that empowered citizens to directly file whistleblower claims in federal court was known as “qui tam.”

Qui tam, is a Latin term for an old legal devise providing monetary rewards for informers whose original information resulted in the punishment of criminals.  The False Claims Act covers government contracting and procurement, including everything from defense contracting to fraud in Medicare and Medicaid.  Today, top leaders in the Trump administration’s Justice Department strongly praise the law: “As we all know, the success of the FCA is due on large part to the partnership between the federal government and whistleblowers.”

In 1986 the False Claims Act was modernized by a strong bipartisan congressional effort led by then-Freshman Sen. Charles GrassleyCharles (Chuck) Ernest GrassleyOvernight Defense: Pompeo blames Iran for oil tanker attacks | House panel approves 3B defense bill | Trump shares designs for red, white and blue Air Force One On The Money: Pelosi says no debt ceiling hike until deal on spending caps | McConnell pressures White House to strike budget deal | Warren bill would wipe out billions in student debt | Senate passes IRS reform bill On The Money: Pelosi says no debt ceiling hike until deal on spending caps | McConnell pressures White House to strike budget deal | Warren bill would wipe out billions in student debt | Senate passes IRS reform bill MORE (R-Iowa).  Signed into law by President Ronald Regan, the FCA soon became the most effective legal tool for uncovering fraud against the taxpayers.  But the ink on the amendments was hardly dry when corrupt government contractors, who were profiting by selling toilet seats to the government for $640 dollar and hammers for $400 dollars, tried to undermine the law.  Appealing to the judiciary, they mounted a legal campaign arguing that the False Claims Act was unconstitutional.  These wealthy special interests found a powerful friend in the Justice Department – the then Assistant Attorney General William Barr. 

In 1989 Barr authored a 21-page, single spaced internal memo arguing that the False Claims Act’s whistleblower provision unconstitutional.  Barr wanted the DOJ to urge the judiciary to strike down the law.  His internal memo was leaked to the press in 1993, and used by government contractors to fight the law. Barr’s memo revealed a deep-seated contempt for whistleblowers. His words are chilling. He claimed that whistleblowers were “inter­ested only in money, not in the faithful execution of the laws.”  Anyone who has worked with whistleblowers in qui tam cases knows that this is absolutely not true, a fact reflected in a key study by the `New England Journal of Medicine.

He argued that empowering whistleblowers to file lawsuits against fraudsters would result in the “tyrannical enforcement of the laws.”  Barr’s comment revealed a contempt for the role of citizen-whistleblowers in a democracy.  It demonstrates a propensity toward wild unsupported exaggeration, especially when attacking whistleblower laws.  

ADVERTISEMENT

Barr claimed that the whistleblower provisions of the False Claims Act were a threat to “the liberties of the American people.”  This hyperbolic fear misconstrues the meaning of “liberty.”  What is liberty in a democracy?  The right to defraud the government?  The right of powerful special interests to use their connections and money to stop enforcement of the laws? Or is it the right of citizens to fight corruption and hold powerful individuals and corporations accountable?

Barr supported his opposition to whistleblowers by citing to an obscure quote from the famous English jurist Lord Coke.  Barr quoted Coke as calling informants “viperous vermin,” a curious citation especially for a Justice Department official.  

Finally, Barr attacked the law as a “a devastating threat to the Executive’s constitutional authority.”  According to Barr, the “Department of Justice has an obligation to the President” to “resist this encroachment on executive power.”  Barr argued that by empowering whistleblowers to directly file lawsuits in federal court against contractors who ripped off the government was somehow “threatening to the executive branch” and posed “grave dangers to the President.”         

Barr’s arguments demonstrate an extremist and dangerous view of executive power – one that held no place for whistleblowers. His arguments were disingenuous and twisted the actual legislative basis for the FCA.  Far from “threatening” the executive branch of government, the False Claims Act was designed to give the executive branch tools needed to effectively enforce laws and protect taxpayers.

For example, the False Claims Act required that whistleblowers provide the attorney general with their evidence of fraud before they could even serve a complaint on a potentially corrupt contractor.  Thereafter, the attorney general could take over any case filed by the whistleblowers and be in charge of the litigation. Additionally, the Justice Department ultimately had the power to have claims dismissed and the authority to review and approve settlements.  The law was crafted to incentivize insiders to provide the government with evidence of fraud, and permitted the government to use this critical information to police contractors. 

Given the control the Justice Department exercises over False Claims Act, it is not surprising that the overwhelming majority of successful whistleblower cases are in fact taken over by the government, and successfully prosecuted by the Justice Department based on the original inside information provided by whistleblowers.  As explained in a 2018 statement issued by the Trump administration’s Justice Department: “Since 1986 nearly 70% of all FCA recoveries can be attributed to qui tam matters. . . whistleblower are often uniquely situated to bringing fraudulent practices to light.”

The facts surrounding prosecutions under the False Claims Act since Reagan approved the Grassley amendments are uncontroverted:

  • $42.54 billion collected from fraudstersbased on lawsuits filed by whistleblowers;
  • Of these collections, $40.07 billion were obtained in cases where the Department of Justice “intervened” and took direct control over the litigation.

Given the remarkable success of the False Claims Act, it is little wonder that DOJ officials (other than Barr) have lauded the role whistleblowers have played in protecting taxpayers from fraud.  For example, former Assistant Attorney General Stuart Delery explained that “the 1986 amendments marked a turning point for the False Claims Act, with the revitalization of the qui tam provisions” and the Grassley amendments “played a critical role in transforming the FCA into what it is today –the most powerful tool the American people have to protect the government from fraud.” These views were seconded by the current Assistant Attorney General Jody Hunt in a statement released in December 2018: “Whistleblowers have played a vital role in unmasking fraudulent schemes” and “taxpayers owe a dept of gratitude to those who often put so much on the line to expose such schemes.”

In 2000 the first constitutional challenge to the False Claims Act made its way to the Supreme Court. Justice Antonia Scalia, writing for a unanimous Court, upheld the law’s constitutionality. He cited to the actions of the Founding Fathers, who enacted numerous qui tam laws in the First Congress of the United States.  A review of the statutes enacted by the First Congress between 1789-91 demonstrates that the Founding Fathers, including numerous drafters of the Constitution, such as Elbridge Gerry, Rufus King, Robert Morris and James Madison, voted to enact 18 qui tam laws, covering everything from citizens who reported bribery, customs violations, criminal larceny, and improper lending activities by the Bank of the United States.  In Barr’s vision of America, all of these laws enacted by the Founding Fathers were illegal and an “abomination” of the Constitution.

Ultimately, the constitutional authority for the False Claims was best explained by President Lincoln, who understood that ours was a “government of the people, by the people and for the people.” Does William Barr still view the False Claims Act as an unconstitutional “abomination?” 

It is incumbent upon the Senate Judiciary Committee to carefully consider whether or not Mr. Barr still believes that the whistleblower provisions of the False Claims Act are unconstitutional. He must be asked whether or not he will strongly defend the law against legal attacks and whether he will continue the longstanding practice of having the Department of Justice partner with whistleblowers in fighting fraud.  He must be asked whether he still believes that empowering citizens to help detect fraud is a “threat to democracy?”  Given the Justice Departments critical role in protecting taxpayer dollars from fraud, any person who is unwilling to aggressively support whistleblowers is not qualified to hold the position of attorney general.

Stephen M. Kohn is a qui tam attorney and partner in the whistleblower rights law firm of Kohn, Kohn & Colapinto.  His clients have worked with the Justice Department in holding numerous fraudsters accountable.