Qui Tam

What a qui tam is, what it requires, and what would have to be true to bring one over the matters in High Stakes Treason.

What a qui tam is

The False Claims Act (31 U.S.C. §§ 3729–3733) lets a private citizen sue, in the name of the United States, a person or company that defrauded the federal government. The citizen is called a relator. The suit is filed under seal, meaning it is not served on the defendant, while the Department of Justice investigates and decides whether to take it over.

If the government recovers money, the relator receives a share: 15–25% if the government intervenes, 25–30% if it declines and the relator proceeds alone. Congress raised those shares in 1986 precisely to make whistleblowing worth the risk.

The requirement people miss: it must be about money

The FCA is not a general misconduct statute. Its core is a false claim for payment, a bill, invoice, grant draw, or contract charge submitted to the government that the submitter knows to be false.

Congress deliberately wrote it broadly enough to reach people who did not sign the invoice. Liability attaches to anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment,” or who “makes or uses a false record or statement material to a false claim.” “Knowingly” covers actual knowledge, deliberate ignorance, and reckless disregard, no proof of intent to defraud is required.

Damages are treble the government’s loss, plus a civil penalty per violation.

Why that matters here, and why it is not obvious

John Brennan did not personally submit invoices to the United States. On its face, that looks fatal to a qui tam.

It is not automatically fatal, because the statute reaches those who cause false claims, and because the conduct alleged in High Stakes Treason sits at the junction of intelligence judgments and federal money:

• The contracting theory. The book documents The Analysis Corporation, a private firm, holding federal counterterrorism contracts while, as the book sets out, its owner held a senior government position and its value tracked federal counterterrorism spending. If a contractor billed the government for analysis or targeting work that the contractor knew was false, the invoices themselves are claims. That is the mechanism the FCA was written for.
• The grant and program theory. Federally funded programs cited in the book, naming and watchlisting, CJIS, JTTF participation, classified-vetting tasks, were funded by grants and contracts to state and local agencies. A knowingly false record used to obtain or sustain that funding is a false claim.
• The 2010 amendments. Congress expanded liability to materially false statements used to avoid or decrease an obligation to pay the government, the so-called “reverse false claim.” Fabricated material can qualify.

Each is a theory, not a case. A theory becomes a case when someone can point to a specific claim for payment, identify who submitted it, and prove they knew it was false.

The gate that matters most: the public disclosure bar

This is the provision that decides most would-be qui tams, and it is the one most relevant to this book.

Under 31 U.S.C. § 3730(e)(4)(A), a court must dismiss a qui tam if substantially the same allegations were already publicly disclosed, unless the relator qualifies as an original source.

Three channels count as public disclosure:

1. Federal criminal, civil, or administrative proceedings where the government is a party
2. Congressional reports, GAO reviews, or Inspector General investigations
3. The news media, read broadly, including websites

Now apply that to this case. A book describing the allegations; an HPSCI report; a DNI declassification; years of coverage and hearings. If the essence of the scheme is findable by search engine, a court will treat it as publicly disclosed, and the qui tam is dismissed unless the relator is an original source.

The original source exception, the narrow door

A relator can still proceed by qualifying under § 3730(e)(4)(B), on either path:

• Pre-disclosure reporting. He voluntarily gave the information to the government before it became public. Reporting to the FBI in January and reading it in a newspaper in March is the textbook case.
• Independent and materially adding knowledge. Knowledge that did not come from the public disclosures, and that adds something the public record cannot supply, internal documents, firsthand detail of how the scheme operated, or facts establishing how a general concern became a specific fraudulent claim.

On either path, the information must have been voluntarily provided to the government before filing. Knowing about fraud is not enough; the relator has to have handed it over.

Four more gates

• The first-to-file rule. Once one qui tam is filed on given facts, no other private party may bring a related action while it is pending. Complaints are sealed, so a competing filing may exist without your knowing.
• Statute of limitations. Six years from the violation, or three years from when a responsible official knew or should have known, and never more than ten years from the conduct. For 2016–2017 events, that outer limit is approaching.
• Government employees. A claim based on information a relator obtained through official duties is barred.
• Seal and service. The complaint is filed under seal and served on the Attorney General and the local U.S. Attorney, with a written disclosure of substantially all material evidence.

The criminal track is separate, and it is the one the book actually argues

A qui tam is civil and recovers money. It is not the vehicle for the conduct the introduction of High Stakes Treason describes. That passage calls for something different in kind: a criminal investigation, an immediate investigation into the former Director, argued in the book to reach the threshold for a treason reference.

Those are different doors:

• Criminal referral. 18 U.S.C. § 2381 (treason) and related offenses; referrals go to the DOJ and the Intelligence Community Inspector General under the IC Whistleblower Protection Act. A declassified IG oversight report is already in the record.
• Civil FCA qui tam. Requires a false claim for payment, and is subject to the public disclosure bar described above.

The book’s central allegation is a criminal referral argument. A qui tam, if viable at all, is a separate and narrower instrument aimed at the money.

What to do with this

Any person considering a qui tam over these matters should bring the following to a False Claims Act attorney before doing anything else:

1. Evidence of a specific false claim for payment, a contract, invoice, grant draw, or billing record
2. Evidence of who knew it was false and when
3. A documented record of prior reporting to the government, to address the public disclosure bar
4. A clear statement of what you know that is not already public

Filing deadlines are real, the seal procedure is strict, and the bars are jurisdictional. This is not a filing to attempt without counsel.

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