Host Jonathan Porter welcomes to the show Michael Schrier, a Washington-based partner in Husch Blackwell’s Government Contracts practice, to discuss a recent executive order (EO) issued by President Donald Trump that could, if it survives legal scrutiny, introduce a new category of False Claims Act (FCA) liability to government contractors. 

Jonathan and Michael kick off the discussion with a brief overview of the historical context surrounding President Trump’s EO, including the Lyndon Johnson-era EO that it seeks to displace. For decades, federal contractors and subcontractors had to affirmatively ensure that employment practices are non-discriminatory against any person based on race, ethnicity, sex, national origin, or religion. Through executive action, the Trump administration has revoked this framework and created new requirements, including a prohibition against enforcing affirmative action in government contracts and certifications from contractors and grant recipients that they do not operate DE&I programs that violate federal anti-discrimination laws.

As Jonathan and Michael discuss, the new EO is not without its legal challenges. On February 21, 2025, a federal judge issued a 63-page memorandum opinion and a nationwide preliminary injunction prohibiting the federal government from enforcing some of the EO’s key provisions, offering temporary relief to contractors, grant recipients, and private employers who are concerned that they will be a target of administration efforts to search out and potentially prosecute “illegal DEI.”

How does this new EO—and the pending litigation attached to it—intersect with the FCA? Jonathan and Michael explore how the EO and its express reference to the FCA set in motion the potential for whistleblower claims pertaining to the operation of certain DE&I programs, but the court-imposed stay has created limbo as to the EO’s legality. The conversation turns to consider how contractors should approach new and existing federal government contracts in light of these developments, including the uneasy relationship between federal and state-level laws and contracts that could have contradictory requirements, setting up a Kafkaesque dilemma for compliance teams. 

Jonathan and Michael wrap up the conversation by exploring how the new EO complicates compliance with various other government contract requirements, some of which are statutory in nature, such as the Small Business Administration’s 8(a) program, a federal contracting and training program for small business owners who are socially and economically disadvantaged.

Jonathan Porter Biography

Full Biography

Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.

Michael Schrier Biography

Full Biography

Michael represents federal contractors, grant recipients, and companies and institutions doing business with or having matters before the U.S. government across a diverse array of matters, including construction litigation and labor and employment law. His employment-related advice includes matters in connection with the Davis-Bacon Act, Service Contract Act, federal contractor Paid Sick Leave, federal contractor minimum wage, and OFCCP matters. Michael represents clients in Contract Disputes Act, Miller Act and breach of contract claims in federal and state trial and appellate courts and in bid protests before the U.S. Court of Federal Claims and U.S. Government Accountability Office. In addition, he advises clients on Federal Acquisition Regulation compliance, facilities and security clearances, False Claims Act, Buy American Act, and debarment/suspension matters.

Further Reading

Michael J. Schrier, Brian P. Waagner, Tracey O’Brien, and Catarina A. Colón. “Federal Court Issues Preliminary Injunction Enjoining Key Portions of Anti-DEI Executive Orders,” February 24, 2025.

Michael J. Schrier and Tracey O’Brien. “White House Revokes E.O. 11246, Targets DEI Programs Alleged to Violate Anti-Discrimination Laws,” January 23, 2025.