Cohn Didn’t Have to Stop the AT&T-Time Warner Merger

(Bloomberg Opinion) -- Oh, how the AT&T-Time Warner plot thickens!

Less than a week after an appeals court ruling upheld the merger of the two companies — scoffing at the Justice Department’s arguments for blocking it, just as the district court had done — the New Yorker magazine published this anecdote, as part of Jane Mayer’s article on the relationship between Fox News and the president:

A few months before the Justice Department filed suit to stop the deal in the fall of 2017, President Donald Trump called his then-chief economic adviser, Gary Cohn, into the Oval Office. His newly appointed chief of staff, John Kelly, was also there. Trump wanted the deal blocked, he said in no uncertain terms:

I’ve been telling Cohn to get this lawsuit filed and nothing’s happening! I’ve mentioned it 50 times. And nothing’s happening. I want to make sure it’s filed. I want that deal blocked!

The article went on to say that as soon as Cohn was out of Trump’s earshot, he told Kelly not to call Justice. “We are not going to do business that way.”

As I’ve noted before, the head of the Justice Department’s antitrust division, Makan Delrahim, has always insisted that the effort to block the deal was based purely on the merits, and wasn’t done because Trump wanted to exact revenge on the company (Time Warner) that owned CNN, the cable network he loves to hate. This New Yorker anecdote makes Delrahim’s protestations even less credible than they were before.

Consider: Even before he was elected president, Trump was talking about the need to block the merger. (He had also begun his anti-CNN campaign.) As an antitrust academic, Delrahim was on record as saying the merger posed no significant antitrust problems.

But then, after working on the transition, he joined the administration as deputy White House counsel. In March 2017, Trump nominated Delrahim to run the antitrust department. In September 2017, his nomination passed the Senate. Just two months later, his department — which had been close to approving the deal — reversed course and filed suit to block it.

I have no doubt that Cohn never called the Justice Department, and I suspect Kelly didn’t either. But they didn’t have to. What are the chances that, when Trump interviewed Delrahim for the job, AT&T-Time Warner was part of the discussion? Pretty high, I’d say. And the chances that Delrahim knew he needed to file the suit to please the man who had handed him the job every antitrust lawyer dreams of? I’d say they’re pretty high too. Shouldn’t the House Judiciary Committee put him under oath and find out for sure?

All of which means that the evidence continues to mount that the antitrust department of the Justice Department has become just another federal agency willing to serve as a weapon the president can wield against his enemies. Is there anyone left in the administration who will stand up for the rule of law? Increasingly, the answer appears to be no.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Joe Nocera is a Bloomberg Opinion columnist covering business. He has written business columns for Esquire, GQ and the New York Times, and is the former editorial director of Fortune. He is co-author of “Indentured: The Inside Story of the Rebellion Against the NCAA.”

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