WASHINGTON — A group of former top Department of Justice lawyers are arguing the Trump administration's attempt to challenge the AT&T-Time Warner merger violates the Constitution if the action is punishment for CNN's news coverage.
On Thursday night, at least eleven former U.S. officials filed an amicus brief in the lawsuit between AT&T and the Department of Justice. The DOJ in November of 2017 sued to block the telecom giant’s $85.4 billion bid to take over Time Warner, the parent company of CNN. The trial is set to begin March 19.
The effort includes Preet Bharara, the former U.S. Attorney for the Southern District of New York from 2009 to 2017 who was fired in the early months of the Trump administration. John Dean, a onetime White House counsel to former President Richard Nixon who became a prominent figure in the Watergate scandal, is also part of the brief.
Trump’s outspoken criticism of CNN and its coverage of his campaign and White House have sparked concerns about potential White House influence on the deal. During a 2016 campaign rally, Trump even said any AT&T-Time Warner deal is “a deal we will not approve in my administration.”
The DOJ says it brought the case through its antitrust division because it believes the deal will harm consumers and that it has nothing to do with the president’s personal griping about CNN.
The officials’ group sees it as a beachhead to establish a broader opening for any party to challenge what it believes may have been politically motivated targeting by the Trump administration.
“There is at least the appearance of political interference,” the brief says. Further, it states, “President Trump’s claim to be able to direct federal law enforcement against specific parties is inconsistent with the Constitution.”
Late last month, a federal judge denied AT&T’s request for communications between the White House and the DOJ to determine if there was any inappropriate influence. While the former U.S. attorneys insist the judge got it wrong, they hope their brief will inform the trial.
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“The president neither has the absolute right to do what he wants with the Justice Department nor the constitutional authority to punish a news organization for its critical coverage,” the brief says.
Concerns about Trump’s involvement in Justice Department matters go well beyond the telecom deal. Trump fired FBI Director James Comey last spring amid the bureau’s investigation into his campaign’s possible ties to Russia, raising questions about Trump’s interference in the probe. Special Counsel Robert Mueller was appointed to take over the Russia case in the wake of Comey’s firing.
Trump has also publicly encouraged the department to investigate political rivals, most notably former Democratic rival Hillary Clinton. The attorneys’ argument is that these actions don’t just violate democratic norms, they violate the Constitution.
In an accompanying white paper, there is a detailed analysis of the Constitutional principles that prohibit interference by the executive and the problems that arise when he weighs in on specific enforcement actions. The group says it did not coordinate with AT&T and is taking no position on the underlying anti-trust arguments. AT&T’s attorneys have been seeking information separately on Trump’s potential influence over the Justice Department.
The questions around AT&T are part of a much broader narrative since Trump’s election about whether there’s been undue influence by the executive over independent federal agencies, including but not limited to the Justice Department.
On Wednesday night, the New York Times reported that Trump approached key witnesses in the special counsel’s Russia probe about their private testimony. It’s the latest example of Trump potentially attempting to influence the work of law enforcement officials, dating to Comey’s claim last year that Trump had asked him for a loyalty pledge.
“The president thought that this was going to be his Justice Department. He thought these lawyers were like the lawyers he hired for real estate deals. He thought they were working for him, not for the Constitution,” Sen. Claire McCaskill, D-Mo., said Thursday on MSNBC’s “Morning Joe” program.
“We have in this country a separation between politics and law enforcement that the rest of the world envies and we’ve got to be very sure that doesn’t get eroded during this presidency,” McCaskill said.
Bhahara was one of the nation’s most aggressive prosecutors of corruption and Wall Street crime. He has also been an outspoken critic of Trump.
Dean pled guilty to helping to cover up the Watergate scandal, becoming a key witness for the prosecution that brought down Nixon. He’s also been an outspoken Trump critic.
Other co-signers served under both Republican and Democratic presidents, many of them longtime career officials. They include Joyce Branda, who most recently served as deputy assistant attorney general for the civil division; Damon Martinez, former U.S. Attorney for the District of New Mexico; and others.
The group that organized the brief is Protect Democracy, a separate bipartisan network of former White House lawyers that’s been evaluating a number of instances of the potential erosion of democratic norms under Trump.
“To be clear, the Justice Department may well have acted independently and outside the cloud of any White House interference in this matter,” the brief says.
“But when the president has specifically threatened to use the power of the Justice Department to punish a perceived opponent, public confidence in the rule of law demands a full inquiry,” it says.
Protect Democracy filed suit in November seeking to compel the DOJ to comply with a Freedom of Information Act it filed earlier in the year in the AT&T case. The requests remain unfulfilled.
The group is also concerned about Trump targeting other news organizations including threats to rescind broadcast licenses of media networks, hints about using antitrust authorities to punish the owner of the Washington Post and calls for journalists to be fired by their employers.
It says the accompanying white paper “outlines a defense available to any party targeted by a White House intervention in a specific-party Justice Department enforcement matter.”
CORRECTION (March 9, 2018, 6:23 a.m. ET): An earlier version of this article incorrectly described some of the people involved in the amicus brief. They are all former Department of Justice officials; not all of them are former U.S. attorneys. In addition, the article misstated the role of Preet Bharara, the former U.S. attorney in New York. He is involved in the effort, but is not leading it.