The Justice Department’s Antitrust Division has been torched by corruption, with lobbyists pressuring allies in the Trump administration to overrule the division on the first big merger challenge of Trump’s second term, and then firing the top deputies of the division’s leader. But this (apparent) effort to hijack antitrust powers on behalf of large corporations has a vulnerability: a 51-year-old law that allows a judge to investigate and expose the corruption for all to see.
Top Democrats and outside anti-monopoly reformers are preparing to call on U.S. District Court Judge Casey Pitts to engage in a deep review of the merger settlement between Hewlett Packard Enterprise (HPE) and Juniper Networks. The mechanism is the Tunney Act, a 1974 law passed in response to Nixon-era corruption in antitrust cases.
Merger settlements by courts are usually a pro forma rubber stamp. But the Tunney Act allows a judge to hold evidentiary hearings, call witnesses, and seek documents to assess the Justice Department’s conduct and whether the settlement is in the public interest. Congress passed the Tunney Act to prevent merger reviews from being swamped by oceans of lobbyist cash.
Anyone can file a public comment during the 60-day period after submitting a merger settlement, and a high-profile coalition is set to demand an investigation of the unusual circumstances around the HPE-Juniper case, which appear to involve big-time MAGA lobbyists, officials inside Pam Bondi’s Justice Department overruling one of its own divisions, and a rumored trade for a circuit court judge slot.
While Tunney Act reviews aren’t used often—the last major one looked at the CVS-Aetna merger during Trump’s first term in 2019—Judge Pitts, a Biden appointee, is seen as the best possible draw for this option.
Concern that antitrust has become a pay-to-play business has grown with the approval of CBS parent company Paramount’s merger with Skydance right after a cash settlement to Trump over a frivolous 60 Minutes lawsuit and the firing of Trump critic Stephen Colbert from his late-night talk show. But that merger went through the Federal Communications Commission, and only antitrust activity at the Justice Department can trigger a Tunney Act review, making this the one area where the behind-the-scenes influence-peddling inside the Trump administration can be put on full view.
“Americans are already concerned that Donald Trump could be making companies play political games for favors from his administration,” said Sen. Elizabeth Warren (D-MA), one of the leaders of the effort to force sunlight into the administration’s antitrust processes, in a statement to the Prospect. “The Tunney Act is a powerfully important tool for transparency to ensure a transaction is not approved if it is not in the public interest, and that DOJ is making decisions on the merits and not based on political favors.”
THE ANTITRUST DIVISION SUED TO BLOCK the $14 billion HPE-Juniper merger within ten days of President Trump’s inauguration; it was seen as a signal that merger review would not completely weaken with the changeover in power. The case was seen as solid: HPE and Juniper were direct competitors in the furnishing of wireless local area network (WLAN) technology for enterprise clients like universities or large businesses, and combining the second- and third-largest WLAN providers would basically leave two competitors in this space. “3 into 2? You must sue,” tweeted Mike Davis, a major MAGA influencer on Trump legal policies, back in January.
Yet in late June, the Antitrust Division suddenly moved to settle the case on a Friday night, less than two weeks before the trial was to begin. The head of the division, former JD Vance staffer Gail Slater, gave a perfunctory thanks to staff in the announcement of the settlement, which also featured a glowing statement from Attorney General Bondi’s chief of staff Chad Mizelle. None of the staff attorneys even signed the proposed settlement that was sent to the judge; Mizelle, who is not even in the division, did.
The settlement forced a small, unrelated divestiture, and didn’t even have a buyer lined up for those assets. Stock in HPE immediately jumped 11 percent, and its CEO went on television to say they got the merger through unscathed, while elsewhere boasting that the divestiture had nothing to do with the company’s WLAN business. There also were an unusually high number of call options on HPE right before the announcement, suggesting that somebody got tipped off to what would happen and made a killing.
Ultimately, a Tunney Act proceeding is primarily concerned with whether the merger settlement is in the public interest.
Subsequent reporting revealed that Davis, who had initially praised the merger challenge, was hired by HPE for an alleged seven-figure payday to negotiate with the administration to get the merger approved. HPE also hired Arthur Schwartz, a longtime conservative power player who is Donald Trump Jr.’s political adviser, to help seal the deal.
Slater did not want to settle the case, and warned the merging parties not to go around the Antitrust Division to have its consultants work directly with the White House. But Mizelle overruled Slater, making the call to accept HPE’s relatively weak settlement offer. Rumors have been flying, including from MAGA gadfly Laura Loomer (before she deleted it), that Mizelle has an ulterior motive: He wants his wife Kathryn Mizelle, a district court judge in Florida, to get a promotion to the 11th Circuit Court of Appeals, and siding with MAGA consultants could help him call in favors to get Trump to appoint her.
In arguing to continue the merger challenge, Slater raised the possibility of a Tunney Act proceeding, where the contacts between the administration and lobbyists for the company would be revealed. The fallout continued: Last week, two of Slater’s top deputies, Roger Alford and Bill Rinner, were put on administrative leave, and on Monday they were both fired. Rinner was not totally part of the right-populist movement—he spent the Biden years at private equity giant Apollo—Alford, the number-two official at the antitrust division, certainly was. The ouster showed that the pay-to-play gang is defeating the right-populists in a battle for control inside the government.
The Justice Department and HPE did not return requests for comment.
This mess is about more than just a wireless back-office infrastructure merger. The Antitrust Division is actively overseeing cases against Google, Apple, Visa, Live Nation, RealPage, and more. If Slater is functionally not in control of the division, then cash and favor-trading will determine the outcomes for some of the biggest companies in the economy. We’re already seeing lenient enforcement at DOJ, with a deal between T-Mobile and US Cellular approved. The precedent appears to be set: The right consultants paid the right amount of money can get you a sweetheart deal.
THIS, IN FACT, IS WHY THE TUNNEY ACT EXISTS. It rose out of settlements the Nixon administration made with International Telephone and Telegraph (ITT), where the president demanded that the Justice Department wave through mergers and ITT donated $400,000 to the Republican National Convention in 1972. Sen. John Tunney (D-CA) wrote legislation to get the influence of lobbying out of enforcement of the antitrust laws.
Anti-monopolists are seizing on the public comment period for the merger, which lasts until September 8, to stress the need for a Tunney Act proceeding. Leading Democrats in the Senate, including Warren, Senate Antitrust Subcommittee ranking Democrat Sen. Amy Klobuchar (D-MN), and Sen. Cory Booker (D-NJ), who has been active in some antitrust issues, are all expected to highlight the lobbying that led to the settlement, which could put pressure on Judge Pitts. Klobuchar reacted to the firing of Alford and Rinner by saying, “The Antitrust Division has long worked to enforce the law to fight monopoly power, but these attorneys may have been fired for doing just that. The Administration must provide answers.”
Other veterans of the Biden antitrust team are expected to issue comments, though Jonathan Kanter, the former head of the Antitrust Division, is unable to do so because he worked on HPE-Juniper while at the division.
The Justice Department typically reviews public comments and then files for final judgment with the court. At that point, Judge Pitts could require an evidentiary hearing and call witnesses. None of this would happen until early 2026, in all likelihood.
Judge Pitts is already in possession of so-called “16(g)” disclosures that merging parties must file to disclose any communications between agents of the companies and employees of the United States. That’s how we know that HPE hired Davis and other lobbyists, though Schwartz isn’t mentioned in the disclosures.
Ultimately, a Tunney Act proceeding is primarily concerned with whether the merger settlement is in the public interest. But Judge Pitts, a former labor lawyer, could read that as whether lobbying concerns took precedence over the public interest in allowing the merger to go through. Before his appointment by President Biden, Pitts was a partner at Altshuler Berzon, which has civil rights, labor, and environmental clients.
Judge Pitts could authorize a third party to challenge the merger settlement, and take testimony of government officials and other witnesses with knowledge of the case. It could prove an embarrassing display of the White House’s private lobbying deals, in open court. The Justice Department would almost certainly try to shield all this from view, arguing that it would disclose privileged information.
No merger settlement has ever been rejected because of a Tunney Act proceeding. (One attempted rejection, in a 1995 Sherman Act case against Microsoft, was overruled by an appeals court.) Courts traditionally give wide latitude to the settling parties, and judges want to get cases off their dockets rather than making more work for themselves. But they have the authority and obligation to expose corruption when it appears to exist.
Still, even if it ultimately doesn’t block the HPE-Juniper merger, opening the window into a pay-to-play process where the White House, lobbyists, and Main Justice are meddling in antitrust cases might be even more damaging, and could preserve Slater’s independence for her division in the future.
I’ve written recently about the demise of the Federal Trade Commission from the heights of Lina Khan’s tenure, and Donald Trump’s transformation of the battle against Big Tech into a personal concierge service for the industry abroad. Outside of grumbling, there aren’t many formal tools available to pry deeper into those circumstances. But the Tunney Act is available for Justice Department antitrust settlements, and there will be a lot of demand for Judge Pitts to use it.