In light of the government's decision to block AT&T's (NYSE: T) $85 billion merger with Time Warner (NYSE: TWX), the telecommunications giant is attempting to put the head of the Justice Department's Antitrust Division, Makan Delrahim, on its witness list in the trial.
It is quite rare for government officials to be listed as witnesses in such cases. But the complexity and high-profile nature of the case has already distinguished it from precedent. The case has also drawn attention as Trump has verbally censured CNN, a channel owned by Time Warner, multiple times.
"This is a matter to be discussed in court, not the press, and as we have consistently told all reporters yesterday and today, we will reserve comment on it for the courtroom," Dan Petrocelli, lead trial counsel for Time Warner and AT&T, said in a statement.
The trial, which is scheduled for March 19th, is also unique because AT&T has amassed more than 100 lobbyists for its cause and its top litigator, Daniel Petrocelli, once defended Mr. Trump in a lawsuit involving Trump University. Time Warner has hired attorney Christine A. Varney, the former head of the Justice Department's Antitrust Division, as its representative.
"AT&T is sending a message by adding Delrahim to the list," said Daniel Lyons, a professor at Boston College's law school and a visiting fellow at American Enterprise Institute. "They're signaling to the Justice Department that they're taking this selective enforcement defense very seriously and intend to move forward with it to trial."
AT&T may intend to call Delrahim as a witness because last year, he gave an interview to a Canadian television network in which he stated that he did not see a major antitrust problem with the deal. This itself would serve as concrete evidence in favor of AT&T. AT&T has also claimed that Delrahim has unfairly targeted its deal. The phone giant 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 Mr. Delrahim has changed his views of the deal multiple times and is mercurial in his statements.
However, there is a flip side to this, as Delrahim's testimony could also prove problematic for AT&T: "You never call the witness unless you know what the witness will say," Lyons said. "It's possible they have a smoking gun and they want present it to Delrahim...absent that I think there's a chance this will backfire."
The question now is whether the government will permit Delrahim to testify. "The government will attempt to keep Delrahim from testifying by moving to strike the selective enforcement defense or use other means such as objecting to his identification on the witness list on relevance, work product privilege, and other reasons," said Andre Barlow, a partner at Doyle, Barlow & Mazard PLLC who specializes in antitrust cases.