Conspiracy theories are raging that President Trump played a role in blocking AT&T’s merger with Time Warner — but even if they’re true, it might not matter to a judge.
That’s according to legal experts, who say it will be an uphill climb for AT&T to use White House interference as an effective argument for defending its $85 billion tie-up with the media giant that owns CNN.
Last week, the Department of Justice filed a lawsuit to block the deal, alleging it would raise prices for TV watching and quash industry innovation.
Some critics allege there’s a different motive — namely to punish CNN’s aggressive Trump coverage.
On Nov. 13, Bloomberg reported that AT&T intended to seek court permission for access to communications between the White House and the DOJ about the merger if a suit was filed.
Meanwhile, watchdog group Protect Democracy Project on Nov. 9 sued the DOJ for documents related to the merger, looking to find out “whether anyone in the Trump Administration improperly interfered with the Department’ review of the merger … based on the president’s personal dislike of CNN’s protected speech”.
Nevertheless, any such documents aren’t likely to significantly bolster AT&T’s case, says Don Baker, who served as the DOJ’s antitrust chief under Presidents Ford and Carter.
“I don’t know if AT&T could get the DOJ suit dismissed even if they found a silver bullet email” from President Trump to DOJ Antitrust Chief Makan Delrahim telling him to stop the merger, Baker told The Post.
Trump railed against the deal during his presidential campaign last year, pledging to block it. Last week, he reiterated that he felt the merger “was not good for the country,” but added, “I’m not going to get involved. It’s litigation.”
The relative caution of Trump’s latest comments may signal a recognition that the merger threatens to become a political tinderbox, with critics alleging he’s using the DOJ as a cudgel. There is some reason to tread lightly, according to Baker.
“AT&T could say [if it found proof of interference] this is a novel case and the DOJ only brought it because the president told them to, and that could have some influence on the judge,” Baker said.
Nevertheless, most legal experts agree the DOJ’s case will largely succeed or fail on its merits, rather than on the circumstances under which it got filed.
There are no rules regarding presidential involvement in Department of Justice merger cases, sources close to the case confirmed — including sources close to AT&T. That’s because the DOJ is part of the executive branch.
Typically, the Assistant Attorney General might brief the Attorney General on a big merger suit before filing a complaint, but not ask the president, a former DOJ antitrust enforcer who was appointed during the Obama years told The Post.
Still, “I think the view is it probably isn’t illegal for the president to speak to the AAG about a merger.”
If it seeks discovery on communication between Trump and Delrahim, AT&T might run in to another problem.
Soon after Trump’s inauguration, Delrahim became Deputy White House Counsel. As such, Delrahim could claim attorney-client privilege on all communications through September when he became the Assistant AG, the former DOJ enforcer said.
Berin Szoka, president of the libertarian think tank TechFreedom, has been quoted saying the DOJ’s AT&T suit is part of Trump’s obvious agenda. Proof of that might embarrass the president and prompt the DOJ to settle, he said.
Still, Szoka admits that the president doesn’t appear to have broken any laws.
“Legally, I don’t think there is anything improper about this,” even if evidence of interference is unearthed, Szoka told The Post.
Barring a settlement, the two sides will battle it out in a trial that could begin in February.
AT&T declined to comment.