The company’s request for the antitrust chief to testify in the trial over the government’s decision to block the AT&T-Time Warner merger is highly unusual. By putting Makan Delrahim on the witness list, AT&T is effectively forcing him to defend his own decision.
WASHINGTON — AT&T is seeking to put the head of the Justice Department’s Antitrust Division on its witness list in a trial over the government’s decision to block the phone giant’s $85 billion merger with Time Warner, according to two people with knowledge of the pretrial activity.
The company’s request for the antitrust chief, Makan Delrahim, to testify is highly unusual. By putting Delrahim on the witness list, AT&T is effectively forcing him to defend his own decision to oppose the blockbuster merger. The trial over the Justice Department’s lawsuit to stop the deal is scheduled to begin March 19.
“I never heard of something like that happening in my time there,” said John M. Newman, an assistant professor of antitrust law at the University of Memphis School of Law and a former trial lawyer for the Justice Department’s Antitrust Division. “It’s a big nasty move to poke a finger at the other side by calling its counsel as a witness.”
Delrahim was included in a list of witnesses submitted to the court by AT&T in recent days, according to two people with knowledge about the company’s demands, who asked to remain anonymous because the details were confidential. AT&T has also asked for internal communications between Delrahim’s office and Attorney General Jeff Sessions, they said. As part of that request, AT&T has also asked for email, phone and other communications between the White House and officials in the Justice Department, the people said.
AT&T and Time Warner announced their $85 billion deal in October 2016. If completed, it would create a media and telecom giant with AT&T’s wireless and satellite television service and Time Warner’s movies and television assets. The combination is expected to transform the media landscape and set up the company to have a powerful grip over how consumers get streaming entertainment over mobile devices.
But the Justice Department sued to block the merger last November. Delrahim and other officials said the combination of telecom and media giants would harm competition and lead to higher prices for consumers.
The case has also been clouded by politics. Time Warner owns CNN, and President Donald Trump has at times taken aim at the news network for its coverage of his administration. During his 2016 presidential campaign, he said the merger should be blocked.
AT&T has not directly mentioned the potential of political interference by the White House in Delrahim’s actions against AT&T and Time Warner. But AT&T’s chief executive, Randall L. Stephenson, has publicly questioned the motives of officials at the Justice Department.
Antitrust regulators are required to make decisions independently of the White House. Delrahim has denied any interference in the decision to block the merger.
The Justice Department has also submitted a list of witnesses, along with other documents from AT&T and Time Warner, said the people. During the pretrial discovery period, the parties notify the court of requests such as witness lists, documents and interviews. A judge will intervene only when there is a dispute over the demands.
“We will reserve comment on it for the courtroom,” Daniel M. Petrocelli, lead trial counsel for Time Warner and AT&T, said in a statement Wednesday, referring to the reports about Delrahim being put on AT&T’s witness list.
A spokesman for the Department of Justice declined to comment.
AT&T has amassed a considerable army of litigators and more than 100 lobbyists to win its case. Its top litigator, Petrocelli, defended Trump in a lawsuit involving Trump University. Time Warner has hired Christine A. Varney, the former head of the Justice Department’s Antitrust Division.
The decision by Delrahim, a former White House counsel, to deny a merger of two companies that do not directly compete was unexpected given that similar deals have previously been approved. The Justice Department has argued that the merger of two giant companies that both produce content and distribute those shows will lead to higher prices for consumers.
AT&T has claimed that Delrahim unfairly singled out its deal. The company described the government’s decision as “selective enforcement” and as evidence it pointed to a 2011 decision by the Justice Department to approve a similar deal, Comcast’s merger with NBCUniversal. AT&T is expected to also claim Delrahim has flip-flopped on his views of the deal.
The strategy of putting Delrahim on the witness stand is risky.
“If AT&T’s strategy is to call Delrahim to testify for the purpose of showing political motivation, it could blow up in their face if the assistant attorney general is a credible witness for the legitimate challenge of the merger,” said Gene Kimmelman, a former senior antitrust official in the Justice Department who has been critical of the deal. “Unless they have a smoking gun, I think Delrahim has a convincing argument.”