US DOJ antitrust division whistleblower testifies at politically charged congressional hearing

John Elias, a longtime prosecutor at the US Department of Justice's antitrust division, testified today before the House Judiciary Committee about political pressure from Attorney General William Barr and senior division leadership to open improper antitrust investigations.

At a lengthy, contentious hearing, Elias said the DOJ "harassed" the legal cannabis industry with unnecessary merger reviews at the behest of Barr. Automakers also faced an improper investigation into collusion over making cars in line with heightened vehicle-emissions standards in California, Elias said.

Elias described both instances of political interference in prepared remarks released on 23 June. He didn't add any other examples of political interference during testimony today.

Late in the hearing, however, Elias mentioned a second, unnamed whistleblower from the antitrust division. He said her complaint focuses on the reviews of marijuana mergers.

It was that complaint that was actually reviewed by the DOJ's Office of Professional Responsibility, Elias said today. And last night, OPR issued a report absolving the antitrust division of wrongdoing, Elias said. The report said "even assuming they were politically motivated, that’s not a problem, which is perplexing to me coming from the Office of Professional Responsibility," Elias said.

Elias started at the division in 2006 and is currently a criminal prosecutor. His tenure has included stints as the chief of staff for current Assistant Attorney General Makan Delrahim, and former division head Bill Baer.

In response to questioning from Democratic Representative Hank Johnson of Georgia, Elias said of the automaker probe, “Normally, for significant complicated matters, people put time and attention into assessing potential defenses. The career staff who examined it saw some very obvious defenses. You really have to twist things to get around those."

Elias was referring to the state action doctrine, which exempts some state-sanctioned conduct from antitrust liability, as well as the Noerr-Pennington Doctrine, which limits antitrust liability for petitioning the government.

The automaker investigation "did not appear to be in good faith," Elias said. If companies are immune from prosecution, you should be immune from investigation, Elias added.

Under questioning from David Cicilline, a Democrat from Rhode Island who heads the antitrust subcommittee, Elias noted low morale at the antitrust division by citing an annual survey of federal government employees in which the division ranked 404th of 420 agencies.

Elias's testimony was largely overshadowed by his fellow witness, Aaron Zelinsky, a former prosecutor under Special Counsel Robert Mueller who led the investigation into Russian interference in the 2016 presidential election.

The hearing led by Judiciary Committee Chairman Jerome Nadler was chaotic at times, with Republicans shouting out objections to Nadler's handling of the hearing. Few questions were asked of Elias.

Elias's testimony tracked his prepared remarks almost entirely. He told Washington state Democrat Pramila Jayapal that the marijuana investigations weren't undertaken in good faith, and took up the resources of dozens of division staff. Furthermore, most of the millions of documents produced by the companies were ignored. "I have never seen anything like that," Elias said.

Republicans attempted to cast doubt on Elias' testimony. Georgia Republican Doug Collins said his previous attempt to work as an aid for the Democratic majority of the antitrust subcommittee is proof of his political bias, a point Nadler deemed irrelevant. Texas Republican Louie Gohmert called Elias' testimony a sideshow.

His testimony about the automaker probe, however, is in direct conflict with previous DOJ explanations. Last week, a DOJ official said the investigation was closed as soon as prosecutors determined there was no collusion between the automakers. Elias, however, said that determination was made in November and the investigation wasn't closed until February.

DOJ spokeswoman Brianna Herlihy disputed Elias' testimony. "Mr. Elias does not present any evidence in support of his allegations," Herlihy said.

Earlier today, 33 former antitrust division officials, including Baer, signed a letter supporting Elias. "John is respected throughout the Department of Justice for his candor and his commitment to justice. We know John to be a person of integrity and a person who speaks the truth and fights to do what is right. We are sure he will carry these principles with him in his appearance before your Committee."

—Additional reporting by Jenna Ebersole in Washington, DC.