55 East Monroe Street
Suite 3300
Chicago, Illinois 60603-5792

Attorney General Nominee Historically Opposed to False Claims Act Whistleblower Provision

Photo of

William Barr, currently an attorney at Kirkland & Ellis who is nominated for the position of Attorney General, has historically been opposed to the False Claims Act qui tam whistleblower provision which allows private citizens to sue in the name of the United States government.

Barr previously served as the 77th United States Attorney General during the first Bush administration. Earlier in his career, he authored a 1989 Office of Legal Counsel memorandum questioning the constitutionality of the qui tam provision of the False Claims Act. One argument that Barr presented in this memo was the idea that that qui tam relators do not meet the requirements to be an "Officer of the United States" because they are not appointed in accordance with the requirements of the Appointments Clause.

Barr failed to file a case challenging the constitutionality of the qui tam provision while he was in office as Attorney General from 1991-1993. He noted in an April 2001 interview given as part of the Presidential Oral History of the George H.W. Bush Presidency that this was a significant disagreement between his office and the Solicitor General's office, who wanted to defend the statute. He referred to the result as a "Mexican standoff." The Appointments Clause holding presented in Barr's 1989 memo was ultimately disavowed by a 1996 Office of Legal Counsel memorandum, which rejected the proposition that all persons exercising significant federal authority must be formally appointed.

Although anti-qui tam sentiment was common around the time of his 1989 memo, Barr has continued to publicly decry the qui tam provision after the 1996 memo settled the issue. In his 2001 interview mentioned previously, Barr stated that he had "wanted to attack" the qui tam statute while he was Attorney General, and that he has always felt that the statute is "an abomination and violation of the appointments clause under the due powers of the President as well as the standing issue of the Supreme Court." It is also worth noting that Barr had the opportunity to edit the transcript of his interview to his satisfaction before it was released to the public.

See this article from the National Whistleblower Center for a statement from their executive director on the issue of Barr's nomination.

Get Updates By Email

Blog Contributors

Attorneys at Law

55 East Monroe Street
Suite 3300
Chicago, Illinois 60603-5792
Tel: 312-863-7222
Fax: 312.332.2196

Social