A letter from four Democratic Congressmen demanding information about presidential interference in the Department of Justice’s decision to sue to block the AT&T/Time Warner deal has highlighted a political quandary for Democrats, who support blocking the merger but are wary of political interference, antitrust observers say.
The request sent to Attorney General Jeff Sessions on Thursday seeks any communications between the White House and the DOJ surrounding the decision to sue to block the merger, which would illuminate any possible negotiations between the DOJ and AT&T and Time Warner and any discussions involving CNN.
Antitrust attorney Seth Bloom, who previously served as general counsel for the Senate antitrust subcommittee, said the letter has created a political conundrum for Democrats. While progressive Democrats have explicitly asked the DOJ to stop the vertical tie-up, they are uncomfortable with reports that President Donald Trump had influence over the DOJ’s decision to sue to block the merger, he said.
“The Democrats are in an interesting position,” Bloom noted.
On the campaign trail, then-candidate Trump had vowed to block any potential merger between the two companies based on his ongoing feud with CNN – which is owned by the Time Warner subsidiary Turner Broadcasting. Before the DOJ sued in November 2017 to block the merger, members of the White House staff and president-elect Trump reportedly met with AT&T and Time Warner executives.
The Democrats’ letter refers to media reports that Trump met with AT&T chief executive Randall Stephenson to discuss the planned merger on 12 January 2017 prior to his swearing-in, and that his son-in-law and senior advisor, Jared Kushner, reportedly had met with Time Warner executives the following month to address negative television coverage of Trump.
Representatives Jerrold Nadler, Elijah Cummings, Gerald Connolly and David Cicilline – who is the top Democrat on the House of Representatives’ antitrust subcommittee – also point to White House aides’ reportedly discussing the pending merger as a “potential point of leverage over their adversary”.
Despite the political nature of the alleged interference, there’s no law that keeps the president from interfering in DOJ matters, Bloom noted; the president is chief of the executive branch and appoints the Attorney General.
“In general it’s desirable to keep the White House out of merger approvals, but that’s a matter of tradition and not a matter of law,” Bloom said.
He pointed to the US Airways/American Airlines settlement in 2013, in which a lobbyist representing the airlines met with top White House officials shortly before the settlement negotiations began in earnest. According to court documents released following the settlement, Hilary Rosen, a former lobbyist and Democratic consultant, met with Carri Twigg, the associate director of the office of public engagement at the White House, the DOJ’s antitrust division and the Department of Labor regarding the merger.
“Nothing is impossible, but we don’t really know what happened,” Bloom said. “We know that [Trump] publicly opposed the merger in his campaign, but we don’t know if there is some directive that came down from the White House to the DOJ to sue.”
As Trump had already expressed his opposition to AT&T’s take-over of Time Warner, a directive from the White House wouldn’t be necessary to communicate the president’s desire, Bloom said.
University of Michigan law professor Daniel Crane also said that the Democrats are in a predicament “because politically this is not a attractive position to be in.”
Prominent Democrats such as Senator Elizabeth Warren have praised the DOJ’s efforts to block the merger, but have also questioned the motivation of the DOJ in bringing the suit. In a speech last December, Warren accused the Antitrust Division of “blindly” following Trump’s orders.
Attacking the DOJ’s motivation behind the decision to block the merger, while praising the actual suit, isn’t an effective political tactic, Crane said.
“I don’t think that in the currency of modern politics that gets you very far,” he said. “That’s too complicated.”
Though it is currently considered taboo for presidents to interfere in DOJ matters, antitrust enforcement is part of the executive branch and it’s appropriate for the president to “take ownership of it”, Crane said.
“The buck does stop at the president’s desk,” Crane said. “The president is accountable.”
He noted that President Theodore Roosevelt “was calling the shots” in Standard Oil, which the DOJ accused of destroying its rivals through predatory pricing and the Supreme Court broke up into 34 different companies in 1911. And President Franklin Roosevelt also exercised oversight of other DOJ antitrust matters, Crane said – not until President Richard Nixon used his authority over the DOJ for a political vendetta did presidents appear to recuse themselves from such law enforcement matters.
The Department of Justice declined to comment on the letter. The DOJ’s suit against AT&T and Time Warner is scheduled for trial on 19 March.