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The AT&T merger decision and the wages of Trump

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By Harry Litman

Editor's note: Harry Litman is the former US attorney for the Western District of Pennsylvania and deputy assistant attorney general in the Department of Justice. He teaches constitutional law in the political science department at the University of California, San Diego, and practices at the firm Constantine Cannon. The views expressed in this commentary are his own.

(CNN) -- Two prerequisites are necessary to assess the merits of the Department of Justice suit to block the merger of AT&T and Time Warner -- which US District Judge Richard Leon resoundingly rejected Tuesday.

The first is a thorough understanding of antitrust law, in particular the law of vertical integration, the sort of arrangement that AT&T and Time Warner now have a green light to implement. The second is detailed knowledge of the litigation itself, including the 172-page opinion by Leon and, especially, the expert testimony at trial on which the judge so thoroughly relied.

I have neither. But then again, the same is true of the dozens of commentators who have been quick to pile on in the wake of the opinion, pillorying the Justice Department's decision to bring the case in the first place.

The prevailing commentary is that the case -- the first of its kind since the Nixon era -- was so weak that it must have been the product of political interference by the Trump administration with the Antitrust Division of the Department of Justice.

AT&T and Time Warner were quick to advance this view. A Time Warner spokesman excoriated the government: "The Court's resounding rejection of the government's arguments is confirmation that this was a case that was baseless, political in its motivation and should never have been brought in the first place."

CNN analyst Jeffrey Toobin in fact reported on "widespread suspicion about the motive behind DOJ's decision to stop the merger," which went against the grain of past Republican administrations' hands-off approach.

The notion in many quarters was that the lawsuit may have been political payback for coverage of President Donald Trump by CNN (which Time Warner owns) after Jared Kushner unsuccessfully tried to get the network to go easier on Trump. And it intensified when Rudy Giuliani, Trump's ever graceless and sloppy political spokesman, blurted out to the press that "the President denied the merger."

But Department of Justice antitrust chief Makan Delrahim steadfastly denied having received any political push to bring the case, and the White House said the same.

It is true, the judge noted, that the action imposed "staggering" costs on both the defendants while delaying the merger. As he also pointed out, however, the costs to the department were mammoth, too. And the government got its hat handed to it. Not the smartest of fights for a President obsessed with winning.

But these are the wages of the Trump era. Trump's contemptible assault on federal law enforcement, his "Deep State" nonsense against the plainly legitimate (and effective) Robert Mueller probe, have had their toxic effect. They cast a pall over all high-profile actions and result in reflexive second-guessing of the department's motivations.

A small tragedy went largely unnoticed Tuesday at the Department of Justice. Joel McElvain, a 20-year department veteran, and a real pro, resigned in response to Attorney General Jeff Sessions' lawless and rankly political decision not to defend essential parts of the Obamacare law. McElvain's principled exit should sound a loud alarm bell.

In another time, with another President, the department would enjoy the benefit of the doubt. Delrahim would be taken at his word in the absence of compelling evidence to the contrary, and the debacle would be analyzed by most, as it may well have been, a principled but overaggressive litigation.

But Trump has made remarkable progress in just two years to sandblast that view away, replacing it with an ever-growing perception among his supporters that the department's decisions are driven by politics, not law. The upshot is an erosion in public confidence in the justice system, and deep demoralization in the ranks of the career professionals at the Department of Justice. It is a nightmare from which there may be no waking so long as Trump remains in office.

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