Category Archives: Justice News

Federal Trade Commission and Justice Department Move to Strengthen Ties

Agencies Launch Joint Public Inquiry Aimed at Modernizing Merger Guidelines to Better Detect and Prevent Anticompetitive Deals at the Cost of Privacy – January 2022

WASHINGTON – The Federal Trade Commission (FTC) and the Justice Department’s Antitrust Division launched a joint public inquiry aimed at strengthening enforcement against illegal mergers.

According to the FTC, recent evidence indicates that many industries across the economy are becoming more concentrated and less competitive – imperiling choice and economic gains for consumers, workers, entrepreneurs, and small businesses. The agencies claim that these problems are likely to persist or worsen due to an ongoing merger surge that has more than doubled merger filings from 2020 to 2021. To address mounting concerns, the agencies are soliciting public input on ways to modernize federal merger guidelines to better detect and prevent illegal, anticompetitive deals in today’s modern markets.

“Illegal mergers can inflict a host of harms, from higher prices and lower wages to diminished opportunity, reduced innovation, and less resiliency,” said FTC Chair Lina M. Khan. “This inquiry launched by the FTC and DOJ is designed to ensure that our merger guidelines accurately reflect modern market realities and equip us to forcefully enforce the law against unlawful deals. Hearing from a broad set of market participants, especially those who have experienced first-hand the effects of mergers and acquisitions, will be critical to our efforts.”

“Our country depends on competition to drive progress, innovation, and prosperity,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “We need to understand why so many industries have too few competitors, and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy.”

Competition is critical to the success of the economy. It ensures that Americans have the freedom to choose among different suppliers and different employers. When businesses face competition, it spurs them to improve their products, develop new ones, and lower prices. Mergers can reduce choices for consumers, workers, and other businesses, leaving them increasingly dependent on larger and more powerful firms that have purchased greater power to dictate the terms of their deals. To protect competition and prevent increased consolidation, Congress passed a series of antitrust laws and authorized the FTC and the Justice Department to enforce them.

The antitrust laws charge the FTC and the Justice Department with preventing mergers that may substantially lessen competition or tend to create a monopoly. Merger guidelines are frameworks for the analysis of mergers under the antitrust laws. The Justice Department first published merger guidelines in 1968, with the goal of providing transparency into the standards it applied in reviewing mergers. Since then, the agencies have published a number of updates, generally specified by whether the transaction is considered horizontal (within the same market) or vertical (within the same supply chain). Although the guidelines identify some of the competitive harms mergers present, markets may fall outside the frameworks under the current approach.

The public inquiry launched today seeks comments on developments in the modern economy and new evidence of mergers’ effects on competition to inform potential revisions to the guidelines. The agencies encourage the public, including market participants, government entities, economists, attorneys, academics, unions, employees, farmers, workers, businesses, franchisees, and consumers, to share feedback, evidence, and ideas that may inform revisions to the guidelines. Some of the specific areas of inquiry on which the agencies are seeking public input and information include:

Purpose and scope of merger review: The agencies seek information on whether the guidelines explain and implement the statutory ban on transactions that “may” substantially lessen competition or tend to create a monopoly, and what harms are contemplated by those standards. The agencies further seek input on whether distinctions between horizontal and vertical transactions reflected in the guidelines should be revisited in light of trends in the modern economy.
Presumptions that certain transactions are anticompetitive: The guidelines identify certain market circumstances that justify a presumption of competitive harm based on market concentration. The agencies seek information on whether concentration thresholds should be adjusted to improve the efficiency and effectiveness of enforcement, whether alternative metrics or qualitative factors should also trigger presumptions of competitive harm, and evidence regarding the accuracy of such presumptions.
Use of market definition in analyzing competitive effects: The agencies seek input on potential updates to the guidelines’ market definition analysis to better account for non-price competition. They also seek to input on when direct evidence of a transaction’s likely competitive effects, such as evidence of head-to-head competition, may eliminate the need for a separate market definition exercise.
Threats to potential and nascent competition: The agencies seek input on potential updates to the guidelines’ discussion of potential and nascent competitors, which may be key sources of innovation and competition.
Impact of monopsony power, including in labor markets: The agencies seek input on how to address the issue of buyer power in more detail in the guidelines. Labor markets are a key example of buyer power, and the agencies seek information regarding how the guidelines should analyze labor market effects of mergers.
Unique characteristics of digital markets: The agencies seek information on how to account for key areas of the modern economy like digital markets in the guidelines, which often have characteristics like zero-price products, multi-sided markets, and data aggregation that the current guidelines do not address in detail.

The Request for Information is available at: https://www.regulations.gov/docket/FTC-2022-0003/document.

The comment period is open for 60 days. Comments can be submitted to regulations.gov and must be received no later than Monday, March 21, 2022. The information will be used by the agencies to consider updates and revisions to the guidelines. If such revisions are contemplated in light of the evidence received and the agencies’ independent research, the agencies will publish proposed guidelines for public comment.

In a press event, Chair Lina M. Khan gave remarks as did Assistant Attorney General Jonathan Kanter. Commissioners Noah Joshua Phillips and Christine S. Wilson issued a statement.

Editorial Note: The Sentinel is deeply concerned about the possibility of any increased governmental “cooperation” when it represents a high likelihood of individual rights being compromised, especially on such a significant scale, and encourages the Reader to examine the intended operational changes and, if you are concerned as well, visit the Public Comment site at: https://www.ftc.gov/policy/public-comments.

Original source material from this post can be found here.

Trump Considers Tying Criminal Justice Reforms to Border Wall Funding

The FIRST STEP Act might get shoved into an end-of-year spending bill.

There appears to be enough bipartisan backing to pass some modest reforms to federal prison conditions and mandatory minimums. Even the Fox Broadcasting Company has put out a statement of support for the FIRST STEP Act. Yet the bill is still stuck in the Senate, and the future of federal criminal justice reform legislation remains unsettlingly cloudy.

President Donald Trump formally announced his support for the law in November, and it has already passed the House. But Sen. Majority Leader Mitch McConnell (R–Ky.) says it might not get a floor vote until January. McConnell is being pressured by fellow conservatives who back the bill and say they know they have the votes to pass it, but a group of Republicans is apparently trying to remove some “safety valve” provisions that permit judges to deviate from mandatory minimum sentence guidelines in some cases. That safety valve has the potential to reduce the sentences of more than 2,000 defendants a year.

Trump reportedly has a plan to get the law passed. According to Sen. Lindsey Graham (R–S.C.), the president wants to shove the FIRST STEP Act into a year-end must-pass spending bill. Lawmakers just passed a stop-gap bill to continue funding the federal government for a couple more weeks. But that runs out right before Christmas.

Senator Graham tweets:

In other words, Trump is trying to tie the FIRST STEP Act to funding for his border wall. He wants $5 billion to start the wall. Senate Democrats have said that they’re willing to fund $1.6 billion for more border security but that they’re not going to give Trump all the money he wants. And obviously, once the Democrats take over the House they’re not going to give him the funds.

Republican Senators have introduced legislation to give Trump $25 billion for the wall, but that bill has no chance of going anywhere at all.

Trump’s tactic here is not terribly unusual. Year-end “must pass” omnibus spending bills have become a depository for unrelated legislation when congressional leaders are struggling to pull together votes. Some of these bills wouldn’t survive public scrutiny. Back in 2016, Reason.com explored several of the unrelated pieces of legislation that got dropped into a $1.1 trillion spending bill passed before the end of 2015.

So the big question here is whether the two demands can be separated. Could the FIRST STEP Act get tossed in the spending bill even if Democrats refuse any consideration of more border wall spending? And will Trump still support it in that case? If he’s stubborn, could that actually cause politically ambitious Democratic senators like Kamala Harris of California and Elizabeth Warren of Massachusetts to turn against the FIRST STEP Act so they can use it as a bludgeon against Trump?

UPDATE: Sen. Ted Cruz (R-Texas) who had been opposing the FIRST STEP Act (after previously supporting it) says he’s back on board after an amendment was added to “exclude violent offenders from being released early.”

Republicans and Democrats Find Common Ground: Sessions Resigns

Jefferson Beauregard Sessions III has resigned as attorney general effective immediately after being asked to do so by President Trump, ABC News has reported.

“At your request, I am submitting my resignation,” Sessions wrote in an undated letter to the president.

“Since the day I was honored to be sworn in as Attorney General of the United States, I came to work at the Department of Jusitce every day determined to do my duty and serve my country,” Sessions wrote. “I have done so to the best of my ability, working to support the fundamental legal processes that are the foundation of justice.”

Trump tweeted that Sessions’ chief of staff, Matthew G. Whitaker, will serve as acting attorney general.

On Twitter, Trump thanked Sessions for his service and announced that Sessions’ chief of staff, Matthew G. Whitaker, will serve as acting attorney general and that a permanent replacement will take place at a later date.

Previously, Trump would not say whether Sessions — who he has repeatedly criticized throughout his tenure — would be safe in his job after the midterm elections.

“I just would love to have him do a great job,” Trump told Bloomberg News on Aug. 30.

“I’d love to have him look at the other side,” Trump added, underscoring his demand for Sessions to reopen the investigation into Hillary Clinton and the origins of the Russia investigation.

Earlier in August, in an interview with Fox News, Trump lashed out at Sessions, saying he failed to take control of the Department of Justice.

In his most forceful public rebuke to date, Sessions hit back shortly after, saying he “will not be improperly influenced by political considerations.”

Sen. Lindsey Graham of South Carolina, a close Trump confidante, predicted Sessions would be out of his job in the near future, but insisted Trump should wait until after November’s midterm elections.

“The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said at the time. “Clearly, Attorney General Sessions doesn’t have the confidence of the president.”

Tensions developed between Trump and Sessions in March 2017, when Sessions recused himself from the Russia investigation and Deputy Attorney Rod Rosenstein took over.

Rosenstein soon appointed Special Counsel Robert Mueller to oversee the Russia probe, angering the president.

Trump repeatedly called on Sessions to end the probe on Twitter and TV interviews.

“…This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!” Trump tweeted on August 1st.

Sessions was the first sitting U.S. senator to endorse then-candidate Trump.

Sessions parlayed that support to become attorney general, a role he held at the state level in Alabama.

The president’s priorities and Sessions’ mirrored each other. Both tough on immigration, the opioid crisis, and crime, both men have a pro-law enforcement perspective.

Aside from the president lashing out at him, Sessions’ tenure as attorney general has largely been focused on carrying out the policies of the administration and most notably, the zero-tolerance immigration policy which lead to the separation of families on the U.S.-Mexico border.

When Attorney General Sessions announced the policy in May, he warned those coming to the country illegally that the administration would prosecute them.

“I have put in place a ‘zero tolerance’ policy for illegal entry on our Southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple. If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law,” he said at an event in San Diego.

The policy was criticized by Democrats and Republicans alike.

Sessions also sent more judges and prosecutors to the southern border to help with processing illegal border crossers.

The attorney general also focused on pro-law enforcement priorities and often echoed the president in touting law enforcement’s objectives.

“Let me say this loud and clear: as long as I am the Attorney General of the United States, the Department of Justice will have the back of all honest and honorable law enforcement officers,” Sessions said at the 25th Annual Top Cops Awards in May.

Sessions was also a regular steward for rigorous opioid prosecution. Just recently, in Cleveland, Sessions announced four opioid cases, each targeting the selling and distribution of opioids, something that he stressed was important to the president.

It has been commented upon by many that Sessions’ actions as attorney general in regards to treatment of federal sentence reform legislation and his draconian approach to treatment of immigrants already within America’s borders may have cost the Republican party control of the House in yesterday’s elections.

Misconduct Complaints Against Kavanaugh Referred to Federal Appeals Court

On Wednesday, Chief Justice John G. Roberts Jr. referred more than a dozen judicial misconduct complaints filed recently against Brett M. Kavanaugh to a federal appeals court in Colorado.

The 15 complaints, related to statements Kavanaugh made during his Senate confirmation hearings, were initially filed with the federal appeals court in Washington, where Kavanaugh served for the last 12 years before his confirmation Saturday to the Supreme Court.

The allegations center on whether Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony, according to people familiar with the matter.

Last month, a judge on the U.S. Court of Appeals for the D.C. Circuit asked Roberts to refer the complaints to another appeals court for review after determining that they should not be handled by judges who served with Kavanaugh on the D.C. appellate court.

In a letter Wednesday to the U.S. Court of Appeals for the 10th Circuit, Roberts said he selected the court in Colorado to “accept the transfer and to exercise the powers of a judicial council with respect to the identified complaints and any pending or new complaints relating to the same subject matter.”

The Denver-based appeals court is led by Chief Judge Timothy M. Tymkovich, the former solicitor general of Colorado who was nominated to the bench by President George W. Bush. The 10th Circuit handled another recent judicial misconduct case from Washington involving the former chief judge of the District Court.

It is unclear what will come of the review by the 10th Circuit. The judiciary’s rules on misconduct do not apply to Supreme Court justices, and the 10th Circuit could decide to dismiss the complaints as moot now that Kavanaugh has joined the high court.

“There is nothing that a judicial council could do at this point,” said Arthur D. Hellman, a law professor at the University of Pittsburgh and expert on the operation of federal courts.

He said it was unprecedented for a new justice to face such a situation. Hellman predicted that the 10th Circuit will likely close the case “because it is no longer within their jurisdiction,” now that Kavanaugh has been elevated to the Supreme Court.

The letter from Roberts does not mention Kavanaugh by name. On Saturday, Judge Karen LeCraft Henderson of the D.C. Circuit, who originally requested the transfer, said in a statement that the court had received complaints about Kavanaugh since the start of his confirmation hearings.

“The complaints do not pertain to any conduct in which Judge Kavanaugh engaged as a judge. The complaints seek investigations only of the public statements he has made as a nominee to the Supreme Court of the United States,” said Henderson, a Bush nominee.

Complaints made against judges are usually handled by the chief judge. Henderson took over from Chief Judge Merrick Garland, who recused himself from the matter.

When complaints were filed in late September and early October, Henderson dismissed some but concluded that others were substantive enough to refer to another judicial panel for investigation.

Roberts received the first transfer request on Sept. 20, followed by four additional requests on Sept. 26, Sept. 28, Oct. 3 and Oct. 5, according to his letter. He did not immediately move to refer the filings to another appeals court.

People familiar with the matter who spoke on the condition of anonymity say the allegations had already been widely discussed in the Senate and in the public realm. Roberts did not see an urgent need for them to be resolved by the judicial branch while he continued to review the incoming complaints, they said.

The complaints landed with Roberts because of his role as chief justice of the United States, not because Kavanaugh is now a member of the Supreme Court.

Such complaints are usually confidential unless the judicial council investigating issues a public report about its findings.

The existence of misconduct complaints and the procedure can be disclosed, according to the rules, “when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.”

The public nature of such a case last year involving former 9th Circuit judge Alex Kozinski, who was accused of sexual misconduct, was unusual. The chief judge of the 9th Circuit asked Roberts to transfer the case for review after The Washington Post reported allegations against Kozinski.

Roberts referred the case to the appeals court in New York City. The judicial council of that court publicly announced it was closing its investigation because Kozinski had retired, saying that because he “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated.”

Judge Kozinski was well known in judicial circles as a fair and well reasoned jurist and his loss as a significant blow to the conservative judicial community.

Sessions Steps Over The Line With Immigration Judges Again

Attorney General Jeff Sessions angered immigration judges today by giving them unwanted advice on how to handle their cases, according to Buzzfeed News. In a speech given to 44 new judges in Virginia, Sessions explicitly called for the new recruits to fight back against immigration lawyers.

“Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty,” he said.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases,” Sessions added.

Current and former immigration judges disagreed.

“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” Dana Marks, a spokesperson for the National Association of Immigration Judges, the union that represents the country’s 350 immigration judges, told Buzzfeed. “It did appear to be a one-sided argument made by a prosecutor.”

Other judges noted that asylum laws were actually designed to be flexible enough for judges to make calls driven by their morality. “We possess brains and hearts, not just one or the other,” Jeffrey Chase, a former immigration judge, told Buzzfeed. “Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone, when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”

Why would Sessions would feel he has the right to comment on these judges decisions at all? Buzzfeed explains:

Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases. Advocates believe the Trump administration has made these decisions in order to speed up deportations. His comments on sympathy to immigrants appeared intended to bolster a decision he made recently to limit when asylum can be granted out of fear of domestic or gang violence.

Sessions also told the judges that they should focus on maximum production and urged them to get “imaginative and inventive” with their high caseload. The courts currently have a backlog of hundreds of thousands of deportation cases.