Proposed Letter to Donald McGahn

Dear All:

Jonathan Abernethy suggested that a letter be sent to White House Counsel Donald McGahn regarding the restricted FBI investigation.  If you would like to add your signature to this letter (see below) please email Jonathan your agreement ASAP. His email address is:

Regards, Ed Little

TO:      Donald McGahn, White House Counsel

CC:      Christopher Wray, Director, FBI

Dear Mr. McGahn:

We, the undersigned, are proud former Assistant U.S. Attorneys with the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York. In our time as federal prosecutors, each of us had the privilege of working with countless hard-working, conscientious, dedicated FBI Agents on all manner of investigations, cases, and criminal trials. We have never heard of an FBI investigation where FBI Agents were not allowed to pursue leads to other evidence based on initial interviews they conducted. And yet published reports indicate that, with respect to the investigation into allegations of sexual assault by the Honorable Brett M. Kavanaugh, the FBI has been directed by the White House and Senate Republicans to interview only Mark Judge, P.J. Smyth, Leland Keyser, and Deborah Ramirez, and not to follow up on leads from those initial interviews. If these reports are accurate, then this highly constrained investigation would undermine the investigation’s very purpose: to try to uncover additional facts concerning very serious charges that have been levied against Judge Kavanaugh. We urge the White House Counsel’s Office not to place any such limitations on the FBI Agents undertaking this critical investigation.

Thank you,


David Koenigsberg Writes About False Claims Act Developments in the Second Circuit

New York Law Journal
By David Koenigsberg
Inability to Identify Invoices Does Not Mandate Dismissal of FCA Complaints

Dear Friends and Colleagues

For those of us who represent whistleblowers in False Claims Act qui tam litigation, or for those of us who defend such cases, a recent Second Circuit case has provided guidance concerning Rule 9(b) standards with regard to pleading fraud with particularity. The Court reversed the dismissal of a qui tam complaint, holding that although the relator did not have personal knowledge of whether false claims had actually been submitted to the government, the complaint alleged sufficient facts that a false claim had been submitted to the government to satisfy Rule 9(b). Previously, district courts in the Circuit had dismissed qui tam complaints when the relator could not identify a specific claim for payment that had been submitted to the government.

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Best regards,

David Koenigsberg