AT&T Judge Rejects Brief Seeking Information on Trump Bias

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By Eleanor Tyler

The judge presiding over the Justice Department’s bid to block AT&T Inc. from swallowing Time Warner Inc. rebuffed a brief filed by 11 former DOJ attorneys, including former U.S. attorney Preet Bharara and former White House counsel John Dean.

The brief argued that it is vital to fully air any allegations that President Donald Trump influenced antitrust regulators to bring the suit against AT&T. U.S. District Court for the District of Columbia Judge Richard Leon nixed it March 13, according to a one-line summary order.

The Protect Democracy Project filed the brief March 8 as counsel for the group of former DOJ attorneys. The filing encourages the court to take seriously any possibility that Trump or the White House politically influenced or coerced law enforcement while avoiding the merits of the government’s antitrust case.

Leon’s rejection means that the role of politics in the trial will be reduced. But the question of whether Trump has interfered or is interfering in DOJ decision making isn’t dead. “Unfortunately, we suspect that this will not be the last time that questions arise about possible White House interference with law enforcement,” Ben Berwick, a Justice Department veteran who now serves as counsel at the Protect Democracy Project, told Bloomberg Law March 14.

AT&T has made a similar argument, stating that Trump’s criticism of Time Warner subsidiary CNN could have influenced the DOJ’s decision to sue. Leon refused AT&T’s requests in February for access to internal DOJ communications with the White House. AT&T can still raise its argument that the DOJ is selectively enforcing the law at trial, but it can’t seek documents to prove it, Leon ruled.

Berwick said his group “will continue to draw attention to the issue, and we hope that courts will fulfill their responsibility to check unconstitutional White House interference in specific-party law enforcement matters.”

AT&T declined to comment on the rejection of the amicus brief.

Other Suits

The Protect Democracy Project has separate two Freedom of Information Act suits pending about White House influence in major media mergers. One seeks information about any political interference in the AT&T-Time Warner enforcement action, and the other asks similar questions about the DOJ’s ongoing investigation into the proposed merger of Walt Disney Co. and 21st Century Fox Inc.

Trump has vocally praised the Disney-Fox deal, a horizontal merger more traditionally scrutinized under antitrust law. His relationship with Fox owner Rupert Murdoch has focused attention on his influence over the major media transaction.

“Friend of the court” briefs are meant to illuminate a particular issue or provide background on an interested view of the case from non-parties. They are common at appellate levels, but it’s unusual to see them in a district court case. But the case against AT&T-Time Warner has drawn considerable scrutiny because it’s the first merger enforcement action of the Trump administration and a rare challenge to a “vertical” tie-up of companies that don’t directly compete.

This was Leon’s second rejection of a friend-of-the-court brief by third parties in the trial, set to begin March 19. The first rejected brief was from former Trump campaign adviser Carter Page.

The case is U.S. v. AT&T Inc. , D.D.C., No. 17-cv-02511, summary order 3/13/18 .

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

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