With AT&T, tweets trip up Trump again

13 November 2017 5:35pm
President Trump

9 November 2017. By Paul Merrion.

President Donald Trump has undermined his stated opposition to AT&T’s takeover of Time Warner and made the Justice Department’s job more difficult with his relentless anti-CNN tweets.

Divestiture of Time Warner’s Turner Broadcasting, CNN’s parent company, may or may not be a justifiable way to address antitrust concerns raised by the $85.4 billion deal, but that’s no longer the only issue.

News of the potential remedy this week immediately was viewed through the lens of Trump’s animus toward CNN, expressed in more than 300 disparaging complaints he has made on Twitter since he started running for the White House in June 2015, including 25 since Inauguration Day.

“I am extremely pleased to see that @CNN has finally been exposed as #FakeNews and garbage journalism. It's about time!” he tweeted early on July 1. “I am thinking about changing the name #FakeNewsCNN to #FraudNewsCNN!” he said in another tweet later that day.

A few days later, the New York Times reported Trump aides had discussed whether approval of the AT&T-Time Warner deal could be leveraged to gain more favorable coverage from CNN, quoting an unnamed “senior administration official.”

Although he has been silent on the deal since entering the White House, on the campaign trail Trump vowed to block the AT&T-Time Warner deal shortly after it was announced in October 2016. “As an example of the power structure I'm fighting, AT&T is buying Time Warner and thus CNN, a deal we will not approve in my administration because it's too much concentration of power in the hands of too few," he said in a policy speech laying out plans for his first 100 days in office.

On Wednesday, after news of the proposed divestiture broke, members of Congress, antitrust experts and even critics of the deal chimed in on Twitter (where else?) to complain and question whether the reported remedy smacked of White House interference “The burden of proof is on the Justice Department to establish that there is no political interference in their Antitrust Division,” said Senator Brian Schatz, a Democrat from Hawaii, in a tweet.

The alternative fix reportedly proposed by the DOJ — a spinoff of AT&T’s recently acquired DirecTV business — was viewed as draconian enough to put the real focus on Turner and CNN. AT&T CEO Randall Stephenson also issued a statement to squelch reports emanating from unnamed DOJ sources that selling Turner was his idea, putting an exclamation point on it the next day.

“Why would I sell CNN?” he told an investor conference in New York Thursday. “It is the business we are trying to build. It’s a big deal to suggest I walked in there and volunteered to sell a really important asset to get the deal done. To have anyone thinking that we are prepared to dump this asset, that’s harmful.”

A White House spokesman and Makan Delrahim, former deputy White House counsel and now assistant attorney general for the DOJ’s Antitrust Division, denied being subject to White House pressure.

“The President did not speak with the Attorney General about this matter, and no White House official was authorized to speak with the Department of Justice on this matter,” said Raj Shah, Deputy Assistant to the President and Principal Deputy Press Secretary.

“I have never been instructed by the White House on this or any other transaction under review by the antitrust division,” Delrahim’s statement said.

If AT&T and the DOJ end up in court — which looks a lot more likely than it did a few days ago — there will be another layer of issues on top of the economic power questions raised by combining one of the country’s largest providers of television programming and one of its largest distributors.

The impact on competing program providers and distributors, and how this all fits into a rapidly changing media landscape for consumers, must take a backseat to the fundamental question of whether the White House put its thumb on the scale. In other words, the Justice Department now has an added burden to prove the takeover is not in the public interest; it must prove divesting CNN is not the proposed remedy because it’s in President Trump’s interest.

Unfiltered and unvetted, Trump’s tweets have become a window into the president’s thinking for judges evaluating the motives behind his administration's actions.

Judges have relied on Trump’s bursts of 140-character rage to discern the reasons behind his administration’s legal arguments and overturn his bans on transgender military personnel (which he delivered via Twitter) and travel from predominantly Muslim countries.

More recently, Sgt. Bowe Bergdahl avoided a recommended 14 years in prison after pleading guilty for deserting his post in Afghanistan, thanks to Trump’s tweets. A military judge said the commander-in-chief’s tweets amounted to “unlawful command influence,” which he called the “mortal enemy of military justice.” The judge said he would not be influenced by those tweets, except as a factor favoring Bergdahl in deciding his punishment.

In the same way, prosecutors of the New York City truck terrorist will have to contend with a pair of Trump tweets calling for the “DEATH PENALTY!” and the possibility of sentencing him to the military prison in Guantanamo.

What was understood by President Barack Obama, the only other president to use Twitter, and what President Trump ignores, is that a statement on Twitter is as official as one in the Federal Register. It may be sent to his 36 million followers with the push of a button, but it’s still an official statement.

Trump can’t even block followers he doesn’t like without getting sued on constitutional grounds. A group of legal scholars said this week that when the president’s tweets generate hundreds if not thousands of comments, retweets and replies to comments, Twitter becomes a public forum for free speech, where access can’t be restricted to those who avoid criticizing him.

Trump may be right in saying he wouldn’t have been elected without Twitter. But it isn’t helping him govern.

ABA 2019