White Collar Criminal Defense Group

A Special Prosecutor – Another Way To Look At It For The Trump Administration

No President, no executive branch member, no cabinet member wants to have a special prosecutor appointed to investigate him, her or them.  However, if the past is prologue, the special prosecutor appointed makes all the difference in the world.  One need go no further than Kenneth Starr, Whitewater, and the entire Clinton investigation, as an example of how far-reaching a special prosecution can be.

Mr. Starr is, and was, a gifted appellate lawyer, appellate judge, academician, and writer.   What he wasn’t was a prosecutor.  Moreover, he had no investigative background of any kind.  Hence, with history as our guide, one sees that it became a prosecution completely out of control at every level. At the end of the day, the President was acquitted by the Senate and the prosecuting party was hurt by the process.  An argument can be made that the country and all three branches of government were hurt as a result of it.

Former FBI Director Robert Mueller is exactly the type of special prosecutor one would want involved in a case to lend credibility and integrity to the end result.  Mr. Mueller served under a Republican administration, and he was confirmed 100 to zero for his tenure to be extended by a Democratic President.  Mr. Mueller is a 72-year old veteran of the United States Marine Corps.  He earned his undergraduate degree from Princeton University, a Master’s degree in International Relations from New York University, and a law degree from the University of Virginia School of Law.  In addition to his tenure at the FBI, Mr. Mueller’s public service has included time as a prosecutor in the U.S. Attorneys’ Offices for the Northern District of California, the District of Massachusetts, and the District of Columbia.  He also served as an Assistant to Attorney General Dick Thornburgh during the late ‘80s and early ‘90s when he oversaw the prosecutions of Manuel Noriega and Gambino crime family boss John Gotti.  He has a reputation for competency, expertise in difficult prosecutions, and, most importantly, absolute discretion.  

Leaks are impossible to stop when an active criminal investigation is occurring in Washington. Everyone who knows Special Prosecutor Mueller believes that if there isn’t anything there, he is not going to proceed.  He is not likely, unless forced by Congress, to issue a scathing or sensational report made up of  yet unproven reports.  He is someone who understands the importance of getting to the bottom of whether something happened or not. 

Frankly, Mr. Mueller’s appointment as Special Prosecutor should provide all involved with a level of comfort that the investigation will be handled efficiently and appropriately.  This should allow the President of the United States to get back to addressing policies important to the American people, knowing that the President’s actions and those of his colleagues will be investigated in an even-handed manner.

Electronic Health Records Vendor To Pay $154.92 Million For FCA Violations

eClinicalWorks, one of the largest electronic health record vendors in the United States, settled FCA violations related to its software, the DOJ announced on May 31.  The FCA suit was a qui tam action filed by a whistleblower in the District of Vermont, alleging that eClinicalWorks misrepresented the capability of its software used to maintain electronic health records (“EHR”).  The company received federal funds provided to EHR vendors like eClinicalWorks to adopt certified technology necessary to the accuracy and security of personal health data.  To receive federal funds, however, an EHR vendor must truthfully certify that its software met these requirements which are established by HHS and verified by an independent certifying agency.

The United States joined the qui tam case through its complaint-in-intervention, alleging that eClinicalWorks concealed from the certifying agency the non-compliant nature of its software and, as a result, falsely obtained its certification.  The government claimed that, for example, the software did not accurately record user actions through its audit function and did not satisfy the data portability requirement to allow the transfer of patient health information from one EHR vendor to another. 

Under the settlement, eClinicalWorks and three of its founders – the CEO, the COO, and the Chief Medical Officer – accepted joint and several liability for the payment of $154.92 million.  Three other employees, one a software developer and the two others, project managers, will each pay $50,000 and $15,000, respectively.  The settlement also includes a corporate integrity agreement with the HHS Office of Inspector General requiring eClinicalWorks to take remedial measures and subject itself to monitoring of its software quality control systems by an oversight agency.  The whistleblower, a software technician, will receive approximately $30 million under the False Claims Act.

The DOJ press release, the United States’ complaint-in-intervention, and the Corporate Integrity Agreement can be found here, here, and here, respectively.