UPDATED WASHINGTON — Nearly a dozen former Justice Department officials want the federal judge to allow an inquiry into potential White House interference in the government’s decision to try to block AT&T’s proposed merger with Time Warner, given President Donald Trump’s professed disdain for the deal and CNN.
The group of Justice Department veterans, including former U.S. Attorney Preet Bharara and President Richard Nixon’s White House counsel John Dean, filed an amicus brief late on Thursday in which they said they were “concerned that the president and the White House may have interfered in this matter.”
They requested “that the court ensure that the parties are able to examine this issue — and if necessary, the court provide redress — so that the public retains confidence that the Department is fulfilling its mission of ensuring the fair and impartial administration of justice for all Americans.”
The Justice Department’s antitrust lawsuit against AT&T and Time Warner, filed in November, is set to go to trial on March 19.
The department’s Antitrust Division chief, Makan Delrahim, has denied that the White House influenced the decision to sue. A spokeswoman for the division declined comment.
When the DOJ-AT&T lawsuit was filed, White House spokesman Raj Shah said, “The president did not speak with the Attorney General about this matter, and no White House official was authorized to speak with the Department of Justice on this matter.”
AT&T-Time Warner, led by attorney Dan Petrocelli, last month sought access to “privilege logs,” or records e-mails and oral communications that they believe could shed light on the extent to which the White House was involved. Judge Richard Leon denied the request.
But the former Justice Department officials, in a filing organized by the Protect Democracy Project, argued that even the appearance of White House influence in the matter was a concern, writing that “the mere appearance of vindictiveness is constitutionally problematic.”
They said AT&T-Time Warner’s legal team could make a “prima facie” showing “that the present action was brought with improper motive to retaliate against CNN.”
“The president repeatedly has declared his enmity for CNN and, as a result, declared that his administration would block the merger,” they wrote. “Those voluntary statements regarding the merger and expressing disagreement with CNN because of the content of its reporting should open the door to discovery to help determine whether the president’s political self-interest and potentially unconstitutional bias have infected the handling of this matter.”
They wrote that “if that limited discovery reveals White House communications or influence on this matter, then the Court should permit fuller discovery and inquiry into the issue at trial.”
They also talked of potential remedies — depending on what is found. One would be to require that the Justice Department reconsider the case with a new team “that is more insulated from White House interference.”
One potential approach would be to require DOJ to reconsider this case with a new team that is more insulated from White House interference, or if the court finds “unlawful interference,” it could dismiss the lawsuit.
Others signing the amicus brief included a number of Justice Department officials who served during the Obama administration, as well as John McKay, who was U.S. Attorney for the western district of Washington from 2001 to 2007, during the administration of President George W. Bush.
Their brief is here.
Earlier this week, Project Democracy filed a Freedom of Information Act lawsuit, seeking documents of any contact between the White House and the Justice Department related to the proposed merger of The Walt Disney Co. with much of 21st Century Fox. That deal was announced on Dec. 20.
Update: The Justice Department has filed a response.
“Given this court’s opinion on this issue, the proposed amicus curiae does not appear meaningfully to add to unresolved issues in the upcoming trial in the current case,” wrote Eric Welsh and Lawrence Reicher of the Antitrust Division.
“Finally, the United States notes the imminent trial and the court’s discretion as to whether movant’s brief and positions therein are ‘desirable,’ ‘relevant’ and ‘not adequately represented by a party.'”