06.24.20

Klobuchar, Colleagues Call For Immediate Hearings on Political Interference in Antitrust Enforcement Decisions at Department of Justice

. . . . Senators: “Mr. Elias’s testimony before the House Judiciary Committee is damning. It eviscerates the notion that investigations and enforcement decisions at today’s Antitrust Division are based on impartial assessments of law and fact”

Senators’ letter calls on Sens. Graham and Lee to hold hearing with Assistant Attorney General Makan Delrahim and career Justice Department attorney John W. Elias 

WASHINGTON (WEDNESDAY, June 24, 2020)  – U.S. Senator Amy Klobuchar (D-MN), Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, sent a letter to Judiciary Chairman Lindsey Graham (R-SC) and Chairman of the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights Mike Lee (R-UT) to request that the Senate Antitrust Subcommittee convene a hearing to examine whether political considerations are playing substantial and inappropriate role in guiding decisions at the Department of Justice.

Klobuchar was joined by Senators Patrick Leahy (D-VT), Sheldon Whitehouse (D-RI), Chris Coons (D-DE), Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Kamala Harris (D-CA).

The senators also requested that Assistant Attorney General Makan Delrahim and career Justice Department attorney John W. Elias testify in front of the Subcommittee on Antitrust, Competition Policy and Consumer Rights.

“Mr. Elias’s testimony before the House Judiciary Committee is damning. It eviscerates the notion that investigations and enforcement decisions at today’s Antitrust Division are based on impartial assessments of law and fact,” the senators wrote. “Since the beginning of this Administration, we have raised concerns about the risk that political considerations could interfere in antitrust law enforcement decision making at the Department of Justice. These concerns are not without foundation. President Trump has made no secret of his views regarding mergers and has made frequent references to using the antitrust laws against companies that displease him.”

“We are certain that you agree that the public should be able to trust that antitrust enforcement is impartial and free of political influence. The impression that federal law enforcement is a tool to serve the political and personal interests of our leaders is corrosive to our entire system of government, which is based on the rule of law. That is why we request a hearing to get to the bottom of these allegations and to determine whether these problems are more widespread,” the senators continued.

In her role as Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, Klobuchar has championed efforts to protect consumers, promote competition, and fight consolidation in major industrial sectors, including the telecommunications, technology, agriculture, and pharmaceutical sectors.

Last week, Klobuchar sent a letter along with Senators Leahy, Blumenthal, Booker, Mazie K. Hirono (D-HI), Jeff Merkley (D-OR), Tammy Baldwin (D-WI), and Ed Markey (D-MA), to the Department of Justice (DOJ) and Federal Trade Commission (FTC), urging the agencies to resume public consideration of new vertical merger guidelines, release revised draft vertical merger guidelines for public comment, and to schedule additional public workshops on the guidelines.

In May, Klobuchar and 14 colleagues sent a letter to Assistant Attorney General for Antitrust Makan Delrahim and Federal Trade Commission (FTC) Chairman Joseph Simons, urging the Department of Justice and the FTC to be vigilant in enforcing the antitrust laws and protecting consumers during and after the coronavirus (COVID-19) pandemic.  

In May, Klobuchar along with Leahy, Blumenthal, and Booker sent a letter to Assistant Attorney General Makan Delrahim and Federal Trade Commission (FTC) Chairman Joseph Simons, urging the Department of Justice (DOJ) and the FTC to monitor the negotiations relating to Uber’s potential acquisition of Grubhub and to initiate an investigation if the parties had reached an agreement to merge, which would have eliminated one of the three leading U.S. food delivery apps. Following initial reports that Uber was withdrawing from merger negotiations with Grubhub, Klobuchar issued a statement calling the outcome good for consumers and restaurants.

Also in May, Klobuchar, Blumenthal, and Booker called on the DOJ to monitor the live performance marketplace to ensure that small and independent venues will have the chance to compete on a level playing field once this crisis has ended.

In March, Klobuchar and Representative David Cicilline (D-RI), Chairman of the House Subcommittee on Antitrust, sent a letter with members of their respective subcommittees, expressing serious concerns over the Justice Department’s handling of the proposed T-Mobile/Sprint merger.

In September 2019, Klobuchar and Senators Patrick Leahy (D-VT), Sheldon Whitehouse (D-RI), and Richard Blumenthal (D-CT) sent a letter to Attorney General William Barr expressing serious concerns regarding reports of a Department of Justice (DOJ) antitrust investigation into four automakers that entered into an agreement with the California Air Resources Board (CARB) to set vehicle emission standards. Earlier that week, Klobuchar questioned the head of the DOJ Antitrust Division on this matter at a Senate Antitrust Subcommittee oversight hearing.

In March 2019, Klobuchar and Blumenthal sent a letter to DOJ after reports that the White House attempted to interfere with the AT&T/Time Warner, Inc. merger.  

In May 2018, Klobuchar and Ciclline, sent a letter to the Department of Justice’s Antitrust Division expressing deep concerns regarding recent reports that AT&T made payments to a shell company established by the President’s personal lawyer, amounting to at least $200,000.

In November 2017, Klobuchar and seven senators sent a letter to President Trump stressing that political interference in antitrust enforcement is unacceptable, calling on the President and Assistant Attorney General Makan Delrahim to respond to questions about interactions between the White House and DOJ regarding the proposed AT&T and Time Warner transaction.

In July 2017, Klobuchar sent a letter to Attorney General Jeff Sessions, Klobuchar requesting information on contacts between the White House and the Department of Justice regarding the pending merger between AT&T and Time Warner, a parent company of CNN. Klobuchar’s effort followed a New York Times report that White House advisers have discussed the pending merger as a potential point of leverage against adversary CNN.

Klobuchar leads the Consolidation Prevention and Competition Promotion Act to restore the original purpose of the Clayton Antitrust Act to promote competition and protect American consumers. The bill would strengthen the current legal standard to help stop harmful consolidation that may materially lessen competition.

In August 2019, Klobuchar introduced the Monopolization Deterrence Act to crack down on monopolies that violate antitrust law. The legislation would give the DOJ and FTC the authority to seek civil penalties for monopolization offenses under the antitrust laws, a power they currently do not have. The bill is cosponsored by Senators Blumenthal, Dianne Feinstein (D-CA), and Ed Markey (D-MA).

The full text of the letter can be found HERE and below:

Dear Chairman Graham and Chairman Lee:

In light of recent, deeply troubling testimony before the House Judiciary Committee, we write to request that the Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights convene a hearing to examine whether political considerations are playing a substantial and inappropriate role in guiding investigatory and enforcement decision making at the Department of Justice’s Antitrust Division. We also request that Assistant Attorney General Makan Delrahim and career Justice Department attorney John W. Elias be subpoenaed to testify at the hearing.

Mr. Elias’s testimony before the House Judiciary Committee is damning. It eviscerates the notion that investigations and enforcement decisions at today’s Antitrust Division are based on impartial assessments of law and fact. Instead, it describes an agency led by those who ignore the advice of career staff, in favor of wasting considerable public resources to indulge the Attorney General’s personal dislike for cannabis and to act on the President’s anger--as divined from his tweets—at an emissions deal between automakers and the California Air Resources Board (CARB). Especially disturbing is Mr. Elias’s testimony that AAG Delrahim acknowledged that the investigation of ten cannabis-related mergers were driven by the cannabis industry’s unpopularity on “the fifth floor,” referring to Attorney General Barr’s offices. That the Division would squander public resources and impose unnecessary costs on parties in this manner based on the Attorney General’s personal antipathy for an industry is nothing short of malfeasance.       

We are certain that you agree that the public should be able to trust that antitrust enforcement is impartial and free of political influence. The impression that federal law enforcement is a tool to serve the political and personal interests of our leaders is corrosive to our entire system of government, which is based on the rule of law. That is why we request a hearing to get to the bottom of these allegations and to determine whether these problems are more widespread.

Since the beginning of this Administration, we have raised concerns about the risk that political considerations could interfere in antitrust law enforcement decision making at the Department of Justice. These concerns are not without foundation. President Trump has made no secret of his views regarding mergers and has made frequent references to using the antitrust laws against companies that displease him.

Over the last several years, reported comments from the President and Administration officials have repeatedly prompted some of us to send letters to the Justice Department urging Department officials to resist political interference from the White House and making clear that political considerations have no place in law enforcement. These letters raised concerns regarding investigations of the AT&T/Time Warner merger and the T-Mobile/Sprint merger, as well as the Department’s recent dubious investigation into several automakers’ emissions negotiations with CARB. We still await answers to some of these letters, all of which were sent months ago. These issues have also been raised during oversight hearings before the Antitrust Subcommittee.       

To date, the Department’s answers to our inquiries—when they have been willing to respond—have been little more than perfunctory. They repeatedly deny any knowledge of inappropriate political influence and point to Department policies and guidance, including a 2009 memorandum from then Attorney General Eric Holder, limiting discussions between the White House and the Department of Justice regarding ongoing or contemplated cases or investigations. But merely invoking a memorandum from a former Democratic Attorney General is not enough, not for us and not for the American public. It has become painfully clear that Department officials no longer need to have direct communications with the White House to be improperly influenced by political considerations when the President freely broadcasts his views on antitrust and those who displease him—be it CNN, Jeff Bezos, California emissions regulators or anyone else.

Of course, it is incumbent upon Department officials to ignore the political noise and focus on enforcement guided by the facts and the law. But the Department’s leadership appears to have fallen far short of this ideal. As Mr. Elias’s testimony makes clear, it is one thing to have policies and procedures and quite another to follow their letter and spirit.

Accordingly, we respectfully request that the Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights convene a hearing to examine whether political considerations are playing a substantial and inappropriate role in guiding investigatory and enforcement decisions at the Antitrust Division, and that this hearing include testimony from Assistant Attorney General of Antitrust Makan Delrahim and career Justice Department attorney John W. Elias. 

Thank you for your consideration in this matter.

Sincerely,

###