Delrahim, DOJ antitrust chief nominee, wins praise, but Trump could complicate the job

29 March 2017 4:55pm

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28 March 2017. By Kirk Victor.

Even before the White House announced on Monday evening that President Donald Trump will nominate Makan Delrahim to lead the US Justice Department's antitrust division, veteran practitioners, knowing that he would likely get the nod, praised his intellect, political savvy, experience and, invariably, his affability.

"He is a very likeable guy and is a very good dealmaker," said Alden Abbott, deputy director of the Meese Center for Legal and Judicial Studies at the right-leaning Heritage Foundation. "Certainly if you are looking for someone who can work with people of different philosophies but is dedicated to do the president's program, he is a very logical choice."

Even before the White House announced on Monday evening that President Donald Trump will nominate Makan Delrahim to lead the US Justice Department's antitrust division, veteran practitioners, knowing that he would likely get the nod, praised his intellect, political savvy, experience and, invariably, his affability.

"He has a great ability to create consensus. When we were making changes to Hart-Scott-Rodino in 2000 we hit an obstacle while negotiating with House Republicans, and he got involved and we resolved the problem," said Jon Leibowitz, a Democrat and former chairman of the US Federal Trade Commission and former top staffer on the US Senate Judiciary Committee's antitrust panel.

"He's conservative but is pragmatic and non-ideological," Leibowitz added. "He understands the value of antitrust enforcement to help consumers and will understand when it's appropriate to sue, and when it is appropriate to stand down."

"Makan is substantively deep — he knows the mission of the antitrust division and he will absolutely execute that mission," Stephen Cannon, chairman of Constantine Cannon, added in an interview.

Having served with Delrahim on the Antitrust Modernization Commission from 2004 until 2007, and interacted with him over the years, Cannon observed that he is "politically astute" and "will listen to all sides and is not going to be the first to speak in any meeting."

Another veteran antitrust lawyer predicted that the "general morale of the division would be very good" with Delrahim at the helm because "he is a very open and receptive guy" and likely will focus on "the big picture" and not be a micromanager.

Most recently, as deputy assistant and deputy counsel to Trump, Delrahim has focused on helping US Supreme Court nominee Neil Gorsuch navigate the Senate during his confirmation hearings. He knows the Senate well, having served as staff director and chief counsel of the Judiciary Committee during the chairmanship of Utah Republican Orrin Hatch.

Delrahim's resume also includes service in the DOJ's antitrust division as deputy assistant attorney general under President George W. Bush. Before assuming his current post, Delrahim was a partner at Brownstein Hyatt Farber Schreck, where he represented a slew of high-tech clients on patent issues and lobbied on antitrust issues.

If confirmed, which seems close to a certainty given his many allies on Capitol Hill and support in the antitrust community, Delrahim will likely have a great deal of latitude in running the division. US Attorney General Jeff Sessions has shown little interest in antitrust issues over the years, but even so, there is a question about whether Trump may weigh in on certain pending deals.

During the presidential campaign, Trump, while not addressing substantive antitrust issues, expressed hostility to deals between media firms and promised to turn his antitrust watchdogs on such mergers. For example, he contended in a speech in October that AT&T's pending $85 billion bid for Time Warner is "too much concentration of power in the hands of too few."

He even excoriated the Justice Department for approving the Comcast-NBC Universal merger in 2011 and said his administration would revisit it with an eye to "breaking that deal up."

He argued that it, too, "concentrates far too much power in one massive entity that is trying to tell the voters what to think and what to do." As his supporters cheered, Trump said that "deals like this destroy democracy."

But as president-elect, Trump met with the chief executive of AT&T, and with the CEOs of Bayer and Monsanto, whose $62 billion merger is pending before the Justice Department. He reportedly sought assurances about jobs and investment in the US.

Such potential freelancing by the president would complicate Delrahim's job. While the antitrust division is part of the executive branch which is headed by the president, critics have expressed concern about such interference with the independence of the division in making decisions on the legal merits.

Sessions was pressed on this issue during his confirmation hearings. He reassured Amy Klobuchar of Minnesota, the senior Democrat on the Senate Judiciary antitrust subcommittee, that he would not take politics into consideration about antitrust enforcement.

Still, antitrust veterans privately wonder how Delrahim would stand up to presidential pressure on a particular merger. If such heat were to be applied to him, an antitrust lawyer noted that "Makan is a very resourceful, creative person" and speculated that he would try to reach an agreement based on a proposed set of remedies to try to allay presidential concerns.

Also, his friends and allies both at the White House from his work for Gorsuch, and from Capitol Hill over the years, could be helpful in defusing presidential pressure. Then again, it may be noteworthy to Trump that Delrahim made contributions to several other GOP presidential contenders — including Senators Ted Cruz of Texas and Marco Rubio of Florida and Governor Scott Walker of Wisconsin — before contributing to Trump, according to the Center for Responsive Politics.

Aside from those hot-button issues, Delrahim has shown a particular interest in policy, especially the nexus between intellectual property and antitrust law, which he has written about and worked on in his representation of a who's who list of high-tech clients.

On that issue, Deborah Garza of Covington & Burling, who served as chair of the Antitrust Modernization Commission, predicted there may be a "rebalancing" related to intellectual property rights and antitrust with Delrahim and FTC acting Chairman Maureen Ohlhausen heading the two agencies with antitrust jurisdiction.

Garza noted that in recent years there's "arguably" been a "shifting a bit more away from the interest of the intellectual property holders." Delrahim and Ohlhausen share a desire to "make a rebalancing" in the direction of protecting IP rights, she said.

Delrahim addressed his concern in a separate statement to the antitrust commission report in which he wrote that "antitrust law and policy must be careful not to constrain the legitimate exercise of intellectual property rights."

"The application of antitrust laws must not illegitimately stifle creators or innovation by condemning pro-competitive activities that would maximize incentives for investments or efficiency-maximizing business arrangements," he added. "Antitrust enforcers should also strive to eliminate as much as possible the unnecessary uncertainties for innovators and creators in their ability to exploit their intellectual property rights, as those uncertainties can also reduce the incentives for innovation."

In that statement, Delrahim also, in the interest of full disclosure, noted that he has represented many technology firms, including Oracle, Microsoft, Micron, Qualcomm (before US and foreign antitrust agencies), Intel and Apple.

His representation of Qualcomm stands out because the FTC is suing the firm for allegedly abusing its patents essential to industry standards. Ohlhausen, who dissented from filing the complaint, has said she would like to explore ending that lawsuit when Trump fills the commission's vacant seats to give the agency a Republican majority.

Summing up her take on Delrahim, Garza said: "He brings very well-rounded experience to the table because he's been in the legislative branch, in the executive branch and in private practice. I think of him as generally aligned with the more traditional approach that we have seen in Republican administrations."

—Additional reporting by Claude R. Marx.

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