The U.S. Justice Department is Not Trump’s Law Firm

by Lanny Davis – 12/7/17

The chances of Donald Trump being impeached increased geometrically in the last several days for the felony of attempting to obstruct justice when he admitted that he knew about Michael Flynn misleading the FBI and subsequently asked then FBI Director James Comey not to continue his investigation of Flynn. If this is so, Trump has committed an impeachable offense.

Another instance of a likely impeachable offense occurred in the last several weeks, but this one is getting less attention because it involved a lawsuit filed by the U.S. Justice Department to block AT & T’s $85.4 billion proposed acquisition of Time Warner.

Hamilton and Madison warned that even though the executive possessed plenary powers over the executive branch, the president could not abuse that power contrary to the constitution. That appears to be what President Trump has done when he appears to have chosen to block, for political, non-policy reasons, the AT & T-Time Warner merger. During his presidential campaign and after, Trump denounced CNN, owned by Time Warner, for its ” FAKE NEWS ” – which I take to mean persistently reporting the truth about Trumps serial lies, rather than reporting Trumps alternative facts as if they were the truth.

The president has a right to influence Justice Department policy, but not to use a political agenda – such as his hatred of CNNs news coverage of his presidency – to cause the Justice Department to file its lawsuit. To do so would be a classic abuse of presidential power in violation of the Fourth and Fourteenth Amendments, which require the Justice Department to provide equal protection and due process to enforce the law neutrally. It also raises serious First Amendment concerns. ” There is compelling evidence that this opposition by the government [to the AT & T-Time Warner merger] is actually a way of using the powers of government to silence a political voice”, said former Federal Communications Commission chief of staff Blair Levin, “and that is a violation of the First Amendment”.

The AT & T-Time Warner merger is what is called a “vertical” merger – meaning two companies in non-competitive, different lines of business merge. AT & T distributes content, Time Warner creates content, and thus, there will be the same number of competitors in each line of business before a merger as after. Perhaps for this reason, the Justice Department has never successfully won a case attempting to block a vertical merger. Indeed, none has even been filed since 1964.

To those who are concerned about potential harm to competition because of the over-concentration of economic power after a vertical merger, there are alternatives to filing a lawsuit.

For example, when a similar vertical merger was under review by DOJ in 2011 between Comcast (a distributor) and NBC-Universal (a content producer), President Obama’s Justice Department imposed 150 conditions, including those that prevented NBC from gaining competitive advantage through lower prices favoring NBC’s content on Comcast vs. other content competitors. That could be done here with AT & T and Time Warner.

For these reasons, Makan Delrahim, the current Trump anti-trust chief challenging the AT & T-Time Warner merger, lobbied in 2011 in support of the vertical Comcast NBC-Universal vertical merger. And in October 2016, Delrahim said on TV that he didn’t think the vertical AT & T-Time Warner merger presented a “major problem” under antitrust laws.

In January 2017, he went to the White House and served as Mr. Trump’s Deputy White House Counsel. Then, in September 2017, he was confirmed to head Justice’s Antitrust Division. And then – voila! – he came out against the AT & T – Time Warner merger — except, perhaps, he reportedly suggested to AT & T executives, he might withdraw his opposition if Time Warner, before the merger, sold CNN (and its parent, Turner Broadcasting System). AT & T and Time Warner naturally declined.

And who expressed interest, about the same time, in purchasing CNN from Time Warner? The pro-Trump Rupert Murdoch, the owner of Fox News Channel.
You can’t make this stuff up.

Trump has expressed frustration that the U.S. Justice Department is not like his own law firm, with the attorney general the managing partner, ALL there to do his bidding.

Sorry, President Trump. I know you admire and envy Vladimir Putin. He doesn’t have to worry about a constitution, with guaranteed due process and equal protection under the rule of law. He can do whatever he wants.
But you can’t – not if the U.S. Congress and the American people are vigilant in requiring you to abide by the U.S. Constitution.

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Davis, a weekly columnist for The Hill newspaper, is co-founder of both the Washington law firm Davis Goldberg Galper PLLC and Trident DMG, a strategic media firm specializing in crisis management. He has never worked for nor is he compensated by AT & T. Davis is the author of a forthcoming book to be published early next year: “The Unmaking of the President 2016: How FBI Director James Comey Cost Hillary Clinton the Presidency” (Scribner Books).

To read the column on The Hill, click here.