The Trump Justice Department is filing a lawsuit today to block the AT&T merger with Time Warner, Politico reports, based on anonymous sources said to be “familiar” with the proposed deal valued at $85 billion.
Time Warner, of course, owns CNN. The news network is a frequent critic of President Trump, who, in turn, regularly lashes out against CNN as “fake news.” As the Wall Street Journal recounts, “Shortly after the [Time Warner-AT&T] deal was announced, the then-candidate [Trump] pledged his administration would block the transaction if he won the White House.”
With that background, there have predictably been suggestions in the press that the Justice Department would exploit its antitrust enforcement powers to block the merger unless CNN is sold. Such suspicions will be intensified because of the claim of Politico’s sources that “the government’s main sticking point is CNN.”
These are the wages of the president’s intrusion of politics into the day-to-day business of law-enforcement, which I have addressed recently.
According to Politico, administration officials deny any White House interference in the Justice Department’s deliberations. There is, moreover, a colorable (though highly debatable) case to be made on the merits for blocking the merger. Through Turner Broadcasting, Time Warner owns not only CNN but other cable broadcast networks (e.g., TBS, TNT). On the other side of the transaction, AT&T owns DirectTV, the satellite network. Thus, antitrust enthusiasts are apt to say the merger would concentrate too much diverse broadcasting power in one set of hands.
(I should note that I am not a fan of the antitrust laws, particularly as applied to such sectors as media and telecom, where there is plenty of competition, choice, and technological innovation that makes what’s hot today obsolete tomorrow. But my views are not the regnant ones in Washington. Some suspected that Trump the businessman-wheeler-dealer would look kindly on mergers; on the other hand, his antitrust activism would fit comfortably with his erratic populist economics.)
Alas, it is not the merits arguments that we are going to be hearing about. The president regularly slams his own Justice Department on Twitter and in other public commentary, demanding that his political foes be investigated. He also interjects himself into charging and sentencing issues in particular cases. And his diatribes on “fake news” include proposals that the power of government be used to strip broadcast outlets of their licenses and their First Amendment protections against defamation claims. Consequently, the companies and Trump’s critics are certain to argue that the White House need not have directly meddled in the Justice Department’s antitrust review of the merger in order to have sent a powerful message to the attorney general and other top Justice officials that he wanted the merger blocked in order to punish CNN.
It may not be true, but it is a perfectly reasonable deduction.
One would think the president would learn his lesson. Consider the months of litigation in the federal courts over the administration’s travel restrictions on aliens. The litigation had very little to do with the substantive legal merits of the so-called ban on foreign nationals from high-risk countries. Instead, the litigation was over whether the over-the-top commentary of Donald Trump — more as a candidate than as president — implied that the restrictions were a product of anti-Muslim animus in contravention of constitutional religious-liberty principles. That is, the Justice Department had a very strong case on the merits in defense of the so-called travel ban (and its successor, heightened vetting procedures). But we heard very little from reviewing courts about the chief executive’s constitutional duties to protect national security and the sweeping statutory authority conferred on the president by Congress in this area. The travel ban cases were all about Trump’s gratuitous commentary.
One would think the president would learn his lesson.
Similarly, in the Bowe Bergdahl court-martial, a serious question was raised whether candidate Trump’s campaign rhetoric — labeling Bergdahl a “dirty, rotten traitor” and pantomiming a firing-squad execution — tainted the proceedings because, upon becoming president, he had command authority over the military tribunal. The problem became worse last month when, as Bergdahl was about to be sentenced, President Trump reaffirmed his campaign-stump hijinks. Ultimately, the judge, clearly concerned that a prison term could be reversed on appeal, imposed no incarceration, despite the seriousness of Bergdahl’s desertion offense and the fact that soldiers were seriously wounded while searching for him.
Now, there is apparently going to be significant litigation over the proper application of the antitrust laws . . . except, I suspect, it will have very little to do with antitrust precedents and very much to do with the Twitter feed of @RealDonaldTrump.