Department of Justice discloses AT&T/Time Warner merger documents in response to Protect Democracy FOIA

On June 11, in response to a FOIA request seeking documents reflecting communications between the White House and the Department of Justice regarding the AT&T-Time Warner merger, Protect Democracy received a letter from DOJ stating that the government is withholding 83 responsive documents.

Protect Democracy has taken an interest in this case as a potential example of improper White House interference in a law enforcement action. Last year, we filed a FOIA request for all correspondence between the White House and DOJ regarding the merger and internal discussion regarding the White House, President Trump, and the merger. We have published responsive documents on our website here, here, and here.

Earlier this year we helped nearly a dozen former DOJ officials, including Preet Bharara and John Dean, file an amicus brief expressing concerns about improper White House interference with this enforcement action. The amicus brief was not on the merits of the merger but, rather, focused on whether DOJ’s decision to bring this case was improperly influenced by the White House.

STATEMENT OF PROTECT DEMOCRACY COUNSEL BEN BERWICK

President Trump has repeatedly attacked CNN for perceived unfavorable coverage. Additionally, President Trump, as a candidate for president, pledged to block the merger. This has created a perception that DOJ brought this case at the behest of President Trump in order to punish CNN.  If that was the case, it would violate the Constitution. The Court had tools at its disposal to get to the bottom of this issue and to remedy any constitutional violation that further inquiry revealed, and we are disappointed that it chose not to use them.

Additional Background

White House interference in the proposed AT&T/Time Warner merger in order to punish a media agency for protected First Amendment speech would be unconstitutional. “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.” (quote from the brief) The amicus brief was first covered by NBC and later by Variety (among others).

The Trump administration has regularly taken actions that appear to introduce political interference in law enforcement. This has included attempts to interfere with the ongoing investigation into the President and his associates, threats to use DOJ to punish political opponents (such as Hillary Clinton and Huma Abedin) and media organizations (CNN, in this case), and on the flip side, urging DOJ to go easy on allies.

“As we explain in our White Paper, when the White House intervenes in how the law is enforced to benefit allies or target its opponents, it violates the President’s constitutional obligation to ensure that the laws are faithfully executed, as well as core constitutional principles of due process, equal treatment under the law, and the First Amendment right to participate in the political process.” 

Protect Democracy’s White Paper describes the constitutional principles that prohibit political interference in law enforcement, grounded in the Take Care Clause of the Constitution and the Bill of Rights.

Concretely, interfering in the Mueller investigation would also be unconstitutional. “The President’s office cannot absolve him of the consequences of his obstructing or otherwise interfering with law-enforcement matters—whether in court or in congressional proceedings.”  Furthermore, any “White House interventions based on the President’s personal or corrupt interests are always unconstitutional.” (quotes from the white paper executive summary)

Together this is part of Protect Democracy’s project to Protect Independent Law Enforcement.