AT&T is demanding that the Justice Department hand over additional evidence to prove that President Trump did not wield political influence over the agency as its antitrust enforcers reviewed the company's bid to acquire Time Warner.
DOJ should produce a log of any conversations that may have transpired between the White House and Attorney General Jeff Sessions pertaining to AT&T's $85 billion merger, the telecom giant argued Friday before a federal judge.
Separately, DOJ should also be required, AT&T said, to disclose any conversations between Sessions and the agency's antitrust division, which has sued AT&T to block its megadeal. DOJ has argued that the transaction could harm competition by leading to higher prices for consumers and limiting innovation. The proposed tie-up could join a major distribution company with a massive library of entertainment content, creating a lucrative media empire.
AT&T's request could deepen a legal probe into whether President Trump interfered in the Justice Department's regulatory review — which, if true, would be a potentially illegal exercise of executive authority, legal experts say.
"If there's something there, then it's incumbent on us" to uncover the details, said AT&T's lawyer, Daniel Petrocelli. "We would at least be entitled to have the court view the documents if they exist."
Trump has strongly criticized the AT&T deal, saying on the 2016 campaign trail that allowing it to go forward would lead to too much concentration of power in the hands of too few. Some analysts have suggested that by opposing the deal, Trump may be seeking to punish CNN for its coverage of the White House; CNN, which is a Time Warner property, would be controlled by AT&T if the merger were to proceed as proposed. AT&T has insisted that the deal will benefit the public and allow it to compete against Internet titans such as Netflix and Google by building a large platform for online advertising.
AT&T's demand comes amid objections from the Justice Department, whose lawyers said Friday that the agency has already provided more than enough data to show there was no undue influence exercised by the president over the proceeding.
DOJ said it has already turned over dozens of pages of records concerning communications between the White House and the antitrust division directly, most having to do with the Senate nomination and confirmation of President Trump's antitrust chief at DOJ, Makan Delrahim.
DOJ officials also presented an affidavit in court on Friday from Delrahim, which pledges that "at no time did I receive orders, instructions, or directions … related to the transaction." The affidavit echoes previous denials of interference issued by the White House and by Delrahim.
AT&T said the statement does not rule out the possibility of oral conversations that may have occurred pertaining to the deal.
But government lawyers said that AT&T had not presented a strong enough case to warrant additional disclosures, calling the effort a "fishing expedition."
"AT&T wants to turn that into a get-out-of-jail-free card for its illegal merger," Craig Conrath, a Justice Department attorney, told Judge Richard Leon. Moreover, Conrath added, Trump's vocal opposition to the deal resembles that of many other public officials, such as Sen. Elizabeth Warren (D-Mass.), and therefore isn't enough of a justification "for the kind of intrusive disclosures [AT&T is] seeking in this case."
AT&T has argued that it is being singled out for scrutiny by the Justice Department. Unlike Comcast's 2011 purchase of NBCUniversal, a similar deal in which the two companies agreed to certain behavioral restrictions as a way to protect consumers from its potential anticompetitive effects, Delrahim has pushed for AT&T and Time Warner to spin off highly valued assets.
For example, the Justice Department suggested the deal could continue if AT&T spun off Time Warner's Turner Broadcasting, the parent company of CNN. It also suggested, Conrath said, that AT&T keep only a partial stake in Turner. The proposals were rebuffed.
The debate over Turner's future, which occurred shortly after Delrahim was confirmed last year as DOJ's top antitrust enforcer, led to a rapid breakdown in the regulatory negotiations and put the two sides on the path toward a court showdown. Earlier this month, Petrocelli said, he took the unusual step of including Delrahim on a list of witnesses AT&T could seek to call during the trial.
The move raised eyebrows, with antitrust experts saying they could not recall DOJ's antitrust chief ever being called as a witness in a merger lawsuit. But on Friday, AT&T said it would be willing to take Delrahim's name off the list temporarily, provided that they could add him back in the coming weeks if necessary.
The trial is set for March 19. Leon said that he will issue a decision on the evidentiary question next week.
AT&T declined to comment. A Justice Department spokeswoman said that Friday's hearing went "very well."