The Justice Department’s approval of the $14 billion merger between Hewlett Packard Enterprises (HPE) and Juniper Network has caused speculation that there is a split within President Trump’s antitrust team. However, a close examination of the settlement and the positions of those charged with enforcing federal antitrust laws suggests the extent of the split is exaggerated.
The lawsuit to block HPE’s acquisition of Juniper was motivated by concerns that the acquisition would reduce the number of companies providing WiFi to big institutions—such as major corporations and hospitals—from three to two. The Justice Department dropped the suit in June when HPE agreed to divest their Instant One business in exchange for the Justice Department’s approval of the deal. Questions about the settlement were raised by the fact that the settlement was not signed by any of the Antitrust Division attorneys who worked on the case. Instead, it was signed by Antitrust Division head Gail Slater, her (at the time) top deputy Roger Alford, and Head of Merger Enforcement Bill Reiner. The statement was also signed by Attorney General Pam Bondi’s Chief of Staff Chad Mizzle.
Shortly after the deal was announced, both Alford and Reiner were fired. Media reports indicate that the two were fired for “insubordination” over the HPE settlement. There were also reports that Assistant AG Slater opposed dropping the case but was overruled by Mizzle. It is highly unlikely that Mizzle would have intervened in the HPE-Juniper case to overrule Slater and two of her top deputies without receiving the go ahead from Pam Bondi. This suggests Bondi does not share Slater’s (and Slater’s former boss ) support for a right-wing version of the “neo-Brandeisian” approach to antitrust associated with Biden-era Federal Trade Commission (FTC) Chair Lina Khan and Assistant Attorney General Jonathan Kanter.
However, the difference between Bondi and Slater is not as much as some progressives are suggesting. When Bondi was serving as head of the America First Policy Institute’s Center for Litigation, she filed an amicus brief supporting President Trump’s lawsuit against Meta (parent company of Facebook, Instagram, and WhatsApp) and Twitter over their deplatforming of President Trump. The suit alleged that the private companies violated President Trump’s First Amendment rights.
This suggests she agrees with Slater that “Tyranny.com” is as big a threat to liberty as “Tryanny.gov.” It should also be kept in mind that Bondi did not drop the lawsuit blocking the HPE-Juniper merger until a settlement agreement was reached. So the difference between Bondi and Slater may be one of degree—not of kind. Bondi may be more interested in settling antitrust suits so mergers and acquisitions can proceed—provided that the involved companies agree to take some government directed action, such as selling off subsidiaries to address the government’s concerns over the effects of the merger or acquisition. Slater, on the other hand, is more willing to go to trial to block a merger.
Seeking a settlement may be preferable to blocking mergers or acquisitions entirely, but this policy still interferes wth free-market transactions and will negatively impact the economy. Settlement agreements could also raise First Amendment issues. For example, the FTC recently approved advertising firm Omnicom’s acquisition of fellow advertising-company Juniper on the condition that the firm not discriminate against sites for political reasons. This forces companies to advertise on sites they would prefer not to for fear of alienating their existing customers. Such a requirement violates these companies' First Amendment rights, and could be used to force conservative companies to advertise on liberal sites, or vice versa.
President Trump’s antitrust team is an improvement over their predecessors—but they still can inflict a lot of damage on the American economy. Their shared commitment to use antitrust policy to target big tech and “woke” businesses will also lead to violations of the First Amendment rights of consumers and companies of all political persuasions.
