Editorial note: Roger P. Alford served as a deputy assistant attorney general in the Antitrust Division of the Department of Justice in the first Trump administration, and as principal deputy assistant attorney general in the division in the second term, before he was terminated amid the controversy surrounding the HP-Juniper merger settlement. In this essay, partially adapted from a speech delivered at the TPI Aspen Forum, he tells his story.
The Republican Party today is a battleground. The confrontation isn’t between traditional conservatives and Trump supporters. Rather, it pits genuine MAGA reformers against MAGA-in-name-only lobbyists. It’s a fight over whether Americans will have equal justice under law, or whether the wealthy and the well-connected enjoy preferential access to our justice system.
Officials like Assistant Attorney General Gail Slater, my former boss, strive to remain true to President Trump’s populist message that resonated with working-class Americans. Antitrust enforcement that applies equal justice under the law can deliver tangible results for millions of Americans. The MAGA-in-name-only lobbyists and the DOJ officials enabling them are pursuing a different agenda. They’re determined to exert and expand their influence and enrich themselves as long as their friends are in power. Will America be governed by the rule of law or the rule of lobbyists? If the rule of lobbyists prevails, it will render futile the realignment of the two parties, which has impelled millions of working-class Americans to migrate to the Right over the past decade.
The MAGA-in-name-only lobbyists and the DOJ officials enabling them are pursuing a different agenda. They’re determined to exert and expand their influence and enrich themselves as long as their friends are in power. Will America be governed by the rule of law or the rule of lobbyists? If the rule of lobbyists prevails, it will render futile the realignment of the two parties, which has impelled millions of working-class Americans to migrate to the Right over the past decade.
The Department of Justice is today the central front in this battle. Slater and her closest advisers are committed to protecting ordinary Americans by vigorously enforcing the antitrust laws. The same can’t be said for many in the senior leadership. This was painfully demonstrated in the handling of the HPE-Juniper merger, which saw two tech giants achieve a sweetheart settlement, circumventing the Antitrust Division by currying favor with senior officials above us. The arrangement, as Sohrab Ahmari reported in these pages, involved a literal backroom meeting over cocktails.
It is still early days in this administration, and correcting the problems at the DOJ is possible, either by political will or judicial decree. I experienced nothing remotely like this when I served at the DOJ in the first Trump administration, and hopefully this is a short-term aberration.
To be clear, I have absolutely no reason to think the White House or other departments are involved in the current HPE-Juniper merger scandal. Nor do I think Deputy Attorney General Todd Blanche is involved.
But I can’t say the same about a small set of actors in senior leadership within the DOJ. I met with the most senior officials of the DOJ regularly, and my concerns aren’t based on conjecture. The core problem is simple: Attorney General Pam Bondi has delegated authority to figures — such as her chief of staff, Chad Mizelle, and Associate Attorney General-Designee Stanley Woodward — who don’t share her commitment to a single tier of justice for all.
Good may yet prevail, but at least with respect to senior DOJ oversight of antitrust enforcement, we are on a path toward injustice.
Under the rule of law, rules matter and must be respected, both in substance and in procedure. Under the rule of lobbyists, by contrast, antitrust laws are nuisances or obstacles to overcome. Rather than the legitimate lobbyists who have expertise and perform traditional functions of education and engagement, bullying lobbyists with no relevant expertise are perverting law enforcement through money, power, relationships, and influence.
There are people within the DOJ who follow the law and care deeply about protecting Americans from anticompetitive behavior. That is true of the leadership and career staff at the Antitrust Division. Sadly, there are others inside and outside the government who care little for the antitrust laws. They consider law enforcement not as binding rules, but an opportunity to leverage power and extract concessions.
Although the terms of my service with the federal government limit what I can say even after I depart, I believe that in the HPE-Juniper merger scandal, Mizelle and Woodward acted inconsistent with the populist values of the Trump administration. These actions have potentially opened the case to judicial scrutiny under the Tunney Act, passed by Congress in the Seventies to ensure that merger settlements take place consistent with the public interest, not based on political connections over cocktails between lobbyists and government officials.
It would be helpful for the court reviewing the settlement to clarify the substance and the process by which the settlement was reached. Although the Tunney Act has rarely served its intended purpose, the court may demand extensive discovery this time around, and examine the surprising truth of what happened. Indeed, the court should block the HPE-Juniper merger. If you knew what I know, you would hope so, too.
The second distinction between the rule of law and the rule of lobbyists is that those who follow the rule of law show no special favors to the parties and counsel appearing before them. By contrast, the rule of lobbyists cares deeply about benefits they can extract in transactional relationships with perceived friends. At the Antitrust Division, we ignore the affiliations of the lawyers who appear before us — whether friend or foe, Republican or Democrat — and attempt to treat everyone equally. That’s how we maintain a single-tier system of justice.
Others at the DOJ and elsewhere in government consider some parties, counsel, and lobbyists to be on the “same MAGA team” and worthy of special solicitude. They consider others to be “enemies of MAGA” that merit particular disfavor. Too often in the current DOJ, meetings are accepted and decisions are made depending upon whether the request or information comes from a MAGA friend. Aware of this injustice, companies are hiring lawyers and influence-peddlers to bolster their MAGA credentials and pervert traditional law enforcement.
Third, the rule of law provides predictability while the rule of lobbyists guarantees instability. Violations of the antitrust laws impose grave risks to companies, including criminal prosecution, massive civil penalties, company breakups, and the blocking of mergers. Lawyers and their clients need a stable and predictable environment to do business. The Antitrust Division uniformly seeks to promote the rule of law in both litigation and merger enforcement. I personally have heard lawyers say that the political uncertainty of this administration is more difficult than the hostile but predictable environment of the Biden administration.
The DOJ, of course, must welcome all lawful competition and all pro-competitive mergers. And there is nothing wrong with lobbying done the right way. But this new pay-to-play approach is so far removed from legitimate lobbying or traditional antitrust enforcement that it is creating massive legal and economic uncertainty. Those adopting this new approach care little about the instability this creates for the markets.
The cost to the country of this new pay-to-play approach to antitrust enforcement is enormous. MAGA-in-name-only lobbyists are influencing their allies within the DOJ and risking the president’s conservative-populist agenda.
Is this the new normal, with every law firm hiring an influence-peddler to dual track and sidestep the litigation and merger review process? That’s what law firms are considering. The DOJ is now overwhelmed with lobbyists with little antitrust expertise going above the Antitrust Division leadership to seek special favors with warm hugs. On numerous occasions in a variety of matters, we implored our superiors and the lawyers on the other side to call off the jackals. But to no avail. Cases are being resolved based on political connections, not the legal merits.
Which case is the next casualty? Will the same senior DOJ officials ignore the president’s executive order on live entertainment just because Live Nation and Ticketmaster have paid a bevy of cozy MAGA friends to roam the halls of the DOJ in defense of their monopoly abuses, making bogus arguments about mergers being necessitated by national security?
What must the antitrust bar think? If the new game in town is to hire well-connected lobbyists ignorant of the law to get your deal done or your case dismissed by going around and above Slater, what role are respected antitrust lawyers supposed to play? Why did the lawyers advising the parties in the HPE-Juniper merger scandal not appreciate the risk they were generating, not only for their clients and their law firms, but for the entire antitrust bar?
Lastly, there are real costs for the lobbyists, the companies and lawyers who hired them, and the officials within government. Outside the small circle of transactional MAGA friends seeking and giving favors, do these lobbyists and their friends in power actually know what traditional or populist conservatives think about them?
Those who forsake the rule of law are violating fundamental moral principles. The Bible teaches: “You shall not pervert justice. You shall not show partiality.… Justice, and only justice, you shall follow” (Deuteronomy 16:19-20). I know many in and out of government who sincerely respect these moral principles. Perhaps now is the time to implement them. The influence-peddlers and their allies in government will hide behind their friends in power, excuse their behavior, claim we are naïve, and hope this all goes away. But many of their friends in power have principles and want to avoid further scandal.
How will the DOJ recover from the current crisis? Will there be policy or personnel changes among the senior leadership at the department? Will Slater have the freedom to enforce the law and fire or hire her team consistent with the administration’s true antitrust agenda? At a minimum, will the DOJ remove Chad Mizelle and Stanley Woodward from any antitrust oversight? In the absence of reforms at the DOJ, must state attorneys general now join every DOJ antitrust lawsuit and merger challenge as a check against influence-peddling? The status quo is simply unsustainable.
My position while I served in government was simple: lobbyists and lawyers are subordinate to the law. Yet by stating this truth, I was dismissed for insubordination. My termination letter is now framed and hangs on the wall in my office at Notre Dame. I joke with friends that I’ve never been fired before, and I’ve been working since my first job as a young teenager at the Dairy Queen in Sherman, Texas. All it took to be fired were lobbyists exerting influence on my superiors to retaliate against me for protecting the rule of law against the rule of lobbyists.
The rule of law is not just an inheritance, it is also an opportunity and obligation. Soldiers are willing to go to war and risk their lives to serve our country. So why shouldn’t we take lesser risks to serve our country and protect the rule of law? The principles inscribed in marble at the Department of Justice building only survive if each generation takes up the fight. Failure is always a possibility. But so too is triumph.
Click this link for the original source of this article.
Author: Roger Alford
This content is courtesy of, and owned and copyrighted by, https://unherd.com and its author. This content is made available by use of the public RSS feed offered by the host site and is used for educational purposes only. If you are the author or represent the host site and would like this content removed now and in the future, please contact USSANews.com using the email address in the Contact page found in the website menu.
