Political Interference at the Antitrust Division

If you weren't aware of it, federal antitrust settlements are subject to the Tunney Act, Pub. L. 93–528, § 2, 88 Stat. 1706 (1974), (codified as amended at 15 U.S.C. § 16(b)–(h)) which requires a level of transparency into the government's actions in settling an antitrust case to avoid even the appearance of impropriety. Among other things, the Tunney Act requires that

• federal antitrust settlements must be put out for public comment,

• defendants must disclose and describe their interactions with the executive branch, and

• the court must find that the settlement is in the public interest.

The Tunney Act Act was a response to allegations during the Nixon administration that the Department of Justice (DOJ) settled three antitrust merger cases with International Telephone and Telegraph (ITT) in exchange for a $400,000 contribution toward the 1972 Republican National Convention. Thus, these requirements only apply to antitrust settlements and not other settlements by the government.

Now, more than 50 years later, similar allegations have arisen in relation to DOJ's proposed settlement on the eve of trial of a case to block HPE's acquisition of Juniper Networks, which is currently undergoing Tunney Act review by the federal district court. See case filings in United States v. Hewlett Packard Enterprise Co. and Juniper Networks, Inc., No. 5:25-cv-00951-PCP (N.D. Cal.). Shortly after the settlement was filed in late June, two senior officials in the Antitrust Division were dismissed for insubordination. One of them was the Principal Deputy Assistant Attorney General for Antitrust who has subsequently alleged that senior DOJ officials "perverted justice and acted inconsistent with the rule of law" in settling the case.

Concerned about the importance of ensuring there is not even an appearance of impropriety, several alumni of the Antitrust Division, including myself, have filed comments in the Tunney Act proceeding imploring the court to force the parties to comply with the requirements of the Tunney Act and to closely examine the settlement process in this case. (My characterization of the comments is my own and should not be attributed to anyone else.)

The comments speak for themselves:

More on ITT: The facts and allegations of the ITT scandal are described in detail by Donald Baker and Mark Niefer in Politics, Policy, and Antitrust: The ITT Affair 50 Years Later (Jan. 8, 2023). Interestingly, their well-researched examination of the facts suggests there was likely no quid pro quo, despite the appearance of impropriety. Their view is that Antitrust Division leadership actively resisted political interference from the White House as they attempted to reach a independent, reasoned enforcement decision. (Disclosure: I know the authors, and I worked alongside Mark Niefer for more than 20 years and consider him a friend.)

Nothing about HPE-Juniper Networks settlement suggests that is what has happened today, especially in the context of other purely transactional decisions taken by the Trump administration.