Carolyn Kuhl’s Hearing Strengthened the Case Against Her Confirmation

Seeking to invalidate qui tam access to the courts to combat fraud

Senators’ concerns: In private practice, Kuhl had urged the federal courts to strike down the qui tam provisions of federal law that allow private citizens to file suit to combat fraud against the government. The federal courts rejected such arguments and upheld the law. Additional information about Kuhl’s efforts in this regard emerged after Kuhl’s hearing. Specifically, according to written questions posed by Senators Grassley and Schumer, Kuhl had attached to a brief that she filed in the Ninth Circuit in 1993 arguing the unconstitutionality of the qui tam provisions a copy of a memorandum written four years earlier by the Department of Justice Office of Legal Counsel, opining that “[t]he Office of Legal Counsel believes the qui tam provisions of the False Claims Act are patently unconstitutional.” Kuhl told the court that the OLC memorandum had recently been “released for publication” by the Department of Justice, but did not affirmatively tell the court that the OLC memorandum did not represent an official position of the Department.53 In light of this, Senator Schumer, noting the ethical obligation of all lawyers “to refrain from acts which mislead the court,” asked Kuhl whether she had “fulfilled [her] obligation to be candid with the court.” 54

Kuhl stated that she did not believe that “reference to the position of the Office of Legal Counsel in the brief was misleading to the court.”55 Apparently, however, the Department of Justice did not agree, for it took what Senator Schumer called “the unusual step of submitting a letter to the court clarifying the government’s position.”56 In that letter to the court, the Justice Department stated that it had come to its attention that the OLC memorandum of 1989 had been submitted to the court and was writing “to make clear to the Court” that the OLC memorandum “was never adopted by the Attorney General, and does not represent the position of the United States.”57

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