AT&T Judge Should Consider Trump Bias, Former Justice Officials Say

Eleven former Justice Department officials are urging a federal court to allow AT&T Inc. to seek information about whether President Donald Trump may have influenced the DOJ’s decision to try to block AT&T’s merger with Time Warner Inc.

The group asked U.S. District Court for the District of Columbia Judge Richard Leon, in a brief filed March 8, to “allow the parties to conduct an inquiry into whether there has been unconstitutional political interference in this enforcement matter” and to dismiss the case if the facts show there was interference.

The filing could complicate the DOJ antitrust division’s job in making the case against the merger. AT&T has raised the question of whether political considerations influenced the DOJ’s decision to sue because CNN is owned by Time Warner. CNN has often been criticized by the president for its coverage.

Antitrust chief Makan Delrahim has said repeatedly that he has had no contact with Trump or any White House officials about the deal.

Leon can choose to reject the brief, filed by former U.S. attorney Preet Bharara and former White House counsel John Dean, among others. Leon rejected another “friend of the court” brief from former Trump campaign adviser Carter Page in December 2017.

The case is a strange place for the former DOJ officials to raise the broader question about potential political influence or Trump’s approach to the DOJ, Gene Kimmelman, president and CEO of consumer watchdog Public Knowledge, told Bloomberg Law.

The DOJ’s case against the AT&T-Time Warner merger is a “strong prosecution, consistent with what the government has done for years, with strong facts to back it up,” he said. The key dispute is about appropriate remedies to fix the competition problems from the merger, not whether the DOJ’s decision to challenge it falls “outside the normal bounds” of antitrust enforcement.

This is the first merger enforcement action of the Trump administration, which makes it hard to argue that there’s a pattern of disparate treatment among potential merger parties, Kimmelman said. “This isn’t a good example of the kinds of concerns they are expressing here,” he said.

The lead counsel on the brief, Benjamin Berwick of The Protect Democracy Project, told Bloomberg Law that the goal is to defend the integrity of law enforcement from apparent interference. A spokesman for the group reiterated that the intent isn’t to target the DOJ.

“If the president used law enforcement to punish a media outlet for their coverage, that would violate the Constitution,” Berwick said. “Just the appearance of using law enforcement to punish opponents and reward allies runs counter to our core constitutional principles. The president is wrong when he says that he can do what he wants with the Justice Department. That’s not how our democracy works.”

Judge Refused Earlier Request

Leon has already restricted AT&T’s argument that politics played a role in the suit. He refused AT&T’s requests in February for access to internal DOJ communications with the White House. AT&T can still raise its “selective prosecution” defense at trial, but it can’t seek documents to prove it, Leon ruled.

The brief from the former DOJ officials technically asks Leon to reconsider that ruling. It says the court should shift the burden of proof to the DOJ to prove no interference occurred. W hen courts see evidence of White House interference in a specific enforcement case, they should presume the interference is “constitutionally problematic” and can only be rebutted by proof from the government that no influence occurred, the brief argues.

The brief doesn’t opine on the underlying merits of the government’s antitrust case. The DOJ has said its case against the merger has nothing to do with politics. The suit instead is based on what DOJ sees as a danger to consumers and rival media companies that a vertically merged AT&T-Time Warner “use its control of Time Warner’s popular programming as a weapon to harm competition.”

A trial is scheduled to begin March 19 in the case.

To contact the reporter on this story: Eleanor Tyler in Washington at etyler@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com