Saturday, November 12, 2011
Posted by D. Daniel Sokol
Anant Raut (Pepper Hamilton) asks Can the President of the United States Order the Attorney General to Drop a Case?
ABSTRACT: Last month, 15 Democrats and 100 Republicans signed separate letters endorsing the proposed AT&T-T-Mobile merger and urging the Obama administration to drop the lawsuit brought by the Department of Justice's Antitrust Division to block it. The fact that nearly all of the signatories turned out to have received thousands of dollars in campaign contributions from AT&T recently was no surprise; at its most benign, there is nothing untoward about the private sector supporting politicians who are naturally inclined towards their point of view.
What was surprising was that the letters were directed not to Attorney General Eric Holder, but to President Obama himself. Lost in the debate over the propriety of members of Congress weighing in on a merger was a different, far more interesting question: Can the president of the United States order the attorney general to drop a lawsuit?
In short, yes. But that doesn't make it a good idea.
The attorney general is a member of the executive branch, appointed by the president, and tasked with assisting the president in his/her responsibility to execute the laws of the United States. There is, in fact, a long tradition of presidents directing their attorney generals to drop lawsuits, stretching back to the earliest days of the Republic. But the president has sworn to "faithfully" execute the laws of the United States. Electing to discontinue lawsuits for political purposes is not only wrong; it could also constitute grounds for impeachment, as it did with President Nixon.
Even if the president had a valid reason, such actions would undermine a basic pillar of American society. The country was founded on the idea of leveling the playing field for all persons, inherent in which is the notion that every person has the same chance to succeed as any other through sheer hard work and innovation. Not only are these fundamental American ideals; these are the philosophical underpinnings of antitrust law as well. Antitrust assumes a steady state for the American economy in which the most successful companies are the ones that provide the greatest value for consumers. Shielding select modern-day oligarchs from the antitrust laws places a well-greased palm on the scales of justice, creating market imbalances that harm the companies that play by the rules, while eroding basic principles of equality and upward mobility.