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The Reporters Committee for Freedom of the Press has a small but consequential request for the D.C. Circuit Court of Appeals. On Thursday, in an amicus brief submitted in the government’s appeal over the AT&T-Time Warner merger, the press advocacy group urged the D.C. Circuit to clarify discovery standards in cases where Donald Trump may have interfered. According to RCFP, discriminatory intent on the part of the president is cause to allow litigants to explore selective enforcement of laws and regulations by the Trump Administration.
Neither the Justice Department nor AT&T is presenting this issue to the D.C. Circuit, and as such, it’s far from given that the appellate court’s future opinion measuring what happened at the trial court will tackle the topic of selective enforcement. Had AT&T lost at trial, the company might have attempted to get the D.C. Circuit to take a second look at U.S. District Court Judge Richard Leon’s pre-trial decision in February to block AT&T’s request for communications between White House and ostensibly independent regulators. Because AT&T overcame the government’s contention that the merger would harm consumers, it’s the government appealing — with the DOJ primarily focused on Leon’s review of the economics of the merger.
Thus, it’s left to an interested party like the RCFP to revisit the highly charged controversy over whether Trump may have prodded the Justice Department to challenge the merger because of his animus to CNN, a subsidiary of Time Warner. The amicus brief recounts Trump’s “fake news” attacks on CNN, his taunting tweets toward the network, and his talk on the campaign trail that if elected, he would not approve the merger.
But there’s more on the line than simply the AT&T-Time Warner merger.
In the amicus brief (read in full here), the RCFP presents word how Trump has exerted his authority — or threatened to do so — in other matters. Pressuring Attorney General Jeff Sessions in the investigation into Hillary Clinton’s email server or lobbying non-recusal in the investigation into possible Russian electoral interference are two examples given.
Then, there’s stuff that directly impacts the media industry: The president’s expressed disappointment with the FCC for referring the Sinclair/Tribune transaction to an administrative judge, for example, or the calling for the revocation of broadcast licenses upon unfavorable coverage of his administration. The RCFP also warns of the possibility that media entities could be targeted under indecency laws, audited by tax authorities, investigated for deceptive trade practices and served subpoenas in “leak” investigations.
In denying AT&T’s bid for discovery, Leon wrote it is “difficult to even conceptualize how a selective enforcement claim applies in the antitrust context” and further stated, ” Defendants have fallen far short of establishing that this enforcement action was selective — that is, that there exist persons similarly situated who have not been prosecuted.”
The RCFP characterizes this approach to be a “more fact-specific standard” than the one needed. The group says it would “preclude discovery to determine the viability of a selective enforcement defense.”
“Appellees need not articulate a prima facie case to obtain discovery on their selective enforcement defense,” argues the amicus brief. “[T]hey need only show a ‘colorable claim’ that they were singled out for enforcement, which is met by ‘some evidence tending to show the existence of the essential elements of the [claim]’… The ample evidence of presidential animosity toward CNN, this merger, and the press as a whole clearly constitutes ‘some evidence’ of discriminatory intent. Ironically, were one to take the president at his word that he has ‘absolute’ power over the Justice Department, this would be the rare case where one has direct evidence of illicit motive.”
The amicus brief authored by Bruce Brown, Katie Townsend, Gabriel Rottman, and Caitlin Vogus does say that both parties have misused antitrust laws. In 1964, President Lyndon Johnson is said to have strong-armed the Houston Chronicle. In 1971, President Richard Nixon is said to have threatened ABC, CBS, and NBC to coerce better coverage from the networks. But with continuing news how the new administration is doing things like targeting search engines and social media over the visibility of political messages, the RCFP clearly sees this to be an important moment for this issue.
The D.C. Circuit could simply ignore the request or it could address it in passing when it addresses the antitrust case. Regardless, this isn’t the only legal push for communications between the White House and the Justice Department over the AT&T-Time Warner merger. For instance, the Protect Democracy Project is actively litigating a case against the Justice Department on grounds the government is violating the Freedom of Information Act by withholding relevant Trump documents related to the merger.
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