“In the United States of America we do not prosecute people based on politics, and we don’t cut them a break based on politics.” When a lawyer from the Mueller team made this declaration, he was rebuking the Department of Justice (DOJ) for going easy on Roger Stone, the political operative who helped Russia help elect president Donald Trump. But even in pure business cases, this administration subordinates law to the personal agendas of the president and his circle. Perhaps nowhere is this pattern more obvious than in antitrust.
In testimony to the US Congress early this summer, the DOJ’s recent antitrust chief of staff revealed that the antitrust division launched 10 baseless full-scale reviews of minor marijuana mergers last year — simply because the attorney general William Barr “did not like the nature of their ... business”. Antitrust staff lawyers got the giggles when asked to challenge cannabis mergers with a combined market share as low as 0.35%. So after harassing the firms to produce millions of documents, they didn’t even bother looking at them.
The ex-chief of staff also related that the DOJ brass ordered staff to investigate Volkswagen, BMW, Honda and Ford — for the supposed crime of colluding to combat climate change — only a day after the president lashed out at them on Twitter. Two days earlier, The New York Times had reported that the president wished to “retaliate” against the automakers for daring to accept California’s strict tailpipe rules.
The DOJ eventually dropped its probes of minuscule marijuana mergers and climate-conscious carmaker collusion. But simply launching these probes imposed costs on business and mocked the rule of law. In a potential second term, the Trump DOJ would be emboldened to push further. Meanwhile, these episodes reinforce the belief that the antitrust division politicised its two biggest cases during Mr Trump’s first term.
According to The New Yorker, Mr Trump actively tried to torpedo the $85bn AT&T–Time Warner merger as a reward for Fox’s Rupert Murdoch, and as a reprimand to CNN’s parent Time Warner. “I’ve mentioned it 50 times,” Mr Trump reportedly complained to the White House chief of staff in mid-2017. “I want to make sure [that legal challenge is] filed. I want that deal blocked.”
The DOJ duly poured its resources into stopping the Time Warner deal, even though DOJ’s antitrust chief had seen no problem with it before he took office. AT&T was so convinced of political bias that it made selective enforcement the core of its early legal defence. The merger ultimately survived in court on other grounds.
Now the antitrust division’s top priority is to sue Google for abuse of dominance in advertising and search. The New York Times reports that the attorney general has insisted on suing before election day (November 3) for political advantage, despite the objections of staff lawyers who would like more time to ready the case. In the past, the president has accused Google of left-leaning political bias and treasonous collaboration with China.
Antitrust vividly illustrates this president’s use of government to please friends and punish enemies on an ad hoc deal-by-deal basis, rather than adhering to neutral principles of law. Former treasury secretary Larry Summers identified this tendency even before Trump took office, in the relatively benign instance of pressuring Carrier into not relocating some workers. The sale of TikTok may represent its apotheosis.
Mr Summers argues convincingly that the US, under Mr Trump's presidency, has regressed from a regime of rules-based to deals-based capitalism. Also known as crony capitalism, this is characteristic not only of nations far less wealthy, but also less equal and just — like, for instance, the nation that worked with Mr Stone to help elect Mr Trump.
Michael D Goldhaber serves as US correspondent for the International Bar Association. He is author of the award-winning e-book Crude Awakening: Chevron in Ecuador, available on Amazon. E-mail: firstname.lastname@example.org
This article first appeared in the October/November print edition of fDi Intelligence. View a digital edition of the magazine here.