Jan 152025

AG Nominee Bondi Commits to Defending FCA Constitutionality

Jaime L.M. Jones, Brenna E. Jenny and Emily Schneider

Today the Senate Judiciary Committee held a confirmation hearing for Pam Bondi, President-elect Donald Trump’s nominee for Attorney General. During the hearing, Senator Chuck Grassley, a long-time proponent of whistleblowers in general and the FCA in particular, sought and received assurances from Bondi that under her leadership, vigorous FCA enforcement, including through qui tam cases, would continue.

Senator Grassley began his questioning by highlighting the impact of the FCA in “fighting government waste and fraud,” touting the $78 billion recovered since the law was passed in 1986 and praising “patriotic whistleblowers who found the fraud and brought the cases forward at their own risk.”

Senator Grassley then noted how former Attorney General Bill Barr had initially opined in a 1989 memo, while serving as head of DOJ’s Office of Legal Counsel, that the FCA’s qui tam provision is unconstitutional but later reversed course during in his 2019 confirmation hearing. Senator Grassley then asked Bondi if she believes the FCA is constitutional. Bondi answered unequivocally, stating that she “would defend the constitutionality, of course, of the False Claims Act.”

Senator Grassley sought further assurances regarding Bondi’s commitment to the False Claims Act, asking if she would pledge to “continu[e] DOJ’s defense of the constitutionality of” the FCA and ensure that DOJ “staff and funding levels” are sufficient to “properly support and prosecute false claim cases.” Bondi agreed, echoing Senator Grassley’s position on the importance of the FCA, support for whistleblowers, and “the money it brings back to our country.”

Senator Grassley’s decision to devote a relatively large portion of his time allotted to pressing Bondi on her support for the FCA may reflect concerns that the new administration might be inclined to embrace a recent district court decision (as discussed here) holding that the FCA’s qui tam provision is unconstitutional.

The confirmation hearing can be viewed here.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Jaime L.M. Jones

Chicago

jaimejones@sidley.com

Brenna E. Jenny

Washington, D.C.

bjenny@sidley.com

Emily Schneider

Washington, D.C.

emily.schneider@sidley.com

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