AAI’s Stutz and Advisory Board Members Weigh in on DOJ Response to Whistleblower Allegations

After an Antitrust Division prosecutor, John Elias, testified as a whistleblower before the House Judiciary Committee on June 24, AAI Vice President of Legal Advocacy Randy Stutz shared his views with Just Security on a memorandum interpreting Mr. Elias’s allegations by the Office of Professional Responsibility (OPR) of the Department of Justice.

AAI Advisory Board members Jonathan Baker, Michael Carrier, Andrew Chin, Harry First, and Eleanor Fox also shared comments in the piece, 10 Top Antitrust Experts Alarmed by Whistleblower Complaint Against A.G. Barr—and Office of Professional Responsibility’s Opinion.

Although Mr. Elias alleged that the DOJ issued Second Requests in the cannabis industry and initiated a California automaker investigation without any legitimate competitive concerns, and as a pretext for burdening enemies of the Trump Administration, the OPR memorandum concludes that “even if the whistleblowers’ allegations were true, OPR finds that [the Antitrust Division’s] Second Requests would not have violated any relevant laws, regulations, rules, policies, or guidelines.”

In response to Just Security’s prompt seeking “views on Mr. Elias’s allegations compared to the OPR letter,” Stutz wrote:

The rabbit goes into the hat when the OPR memo applies the proper standard for issuing Second Requests to the whistleblower’s allegations of pretextualism. It is true, and critically important, that the agencies must have wide latitude in issuing Second Requests, including (and sometimes especially) when a competitive threat is still nascent or incipient. But obviously this latitude does not extend to issuing pretextual Second Requests. When pretextual antitrust enforcement has been uncovered in the past, it has always been greeted as a scandal.

The most infamous example of this is the Nixon DOJ’s antitrust case against the International Telephone & Telegraph Corporation (IT&T), which was resolved with a notoriously weak settlement that looked more like a giveaway than a serious effort to address competitive problems. It later came to light that, shortly before the settlement, IT&T donated $400,000 to the Republican National Committee that helped reelect Nixon in 1972. The episode wasn’t written off as an exercise of agency discretion; instead Congress passed the Tunney Act, which, to this day, requires the DOJ to submit to federal judicial review when it files an antitrust complaint in federal court and opts to settle instead of litigate.

When the OPR memo concludes that no policies would be violated even if the whistleblower allegations are true, it is best read as speaking to the issuance of Second Requests in circumstances where competitive concerns may appear to be remote. If the memo were read to suggest that pretextual Second Requests are perfectly okay, that would be antithetical to the agency’s basic mission. As Assistant Attorney General Delrahim put it in a 2018 speech, “the Department of Justice is the only agency in the federal government with a moral imperative in its name.