Lawyers for the U.S. Justice Department and AT&T Inc. on Friday gave a lively preview of their upcoming antitrust trial as they battled over the company's push to uncover whether the Trump White House exerted any influence to block AT&T's $85 billion merger with Time Warner.

O'Melveny & Myers partner Dan Petrocelli, who represents AT&T, said at a hearing that he added DOJ antitrust chief Makan Delrahim as a witness “just in case” discovery requests showed the White House played any role in the decision to take AT&T to court. He said the government has rebuffed the company's attempts to gather information about any communications between Main Justice and the White House about the merger.

Dan Petrocelli

Petrocelli said AT&T's requests included privilege logs for written communications between U.S. Attorney General Jeff Sessions and the White House, and between the antitrust division and Sessions.

U.S. District Judge Richard Leon, who is overseeing the case, said the government submitted a letter requesting he strike AT&T's defense theory and discovery requests. Craig Conrath, representing the government, argued that, in order for AT&T to get discovery related to their theory, the company's lawyers had to show a high standard of proof.

Conrath said AT&T had only made “assertions” so far.

AT&T CEO Randall Stephenson has publicly questioned DOJ's motives, noting that the department typically doesn't litigate against vertical mergers. As a candidate in the 2016 elections and since, President Donald Trump expressed his disapproval of CNN, which is owned by AT&T.

The New York Times reported in July that White House officials discussed using the merger as possible leverage in its disputes with the news channel over its coverage of Trump. Conrath said in court:

“Look, the president is unhappy with CNN. We don't dispute that. But AT&T wants to turn that into a get out of jail free card.”

DOJ sued AT&T in November, alleging the merger would hinder rivals by forcing them to pay more for Time Warner content. The case is set to go to trial March 19.

Conrath said the government also filed affidavits from Delrahim and his deputy, Andrew Finch, in which they claim they took no orders from the White House. Those documents are not yet public on the docket, and it's unclear whether they will be.

The government has provided AT&T with a log of communications between the White House and DOJ's antitrust division. The responsive documents were related only to Delrahim's confirmation process, Conrath said.

Petrocelli said AT&T had met its burden, and he pointed to Trump's statements about CNN and the fact that Delrahim, prior to the election and his confirmation, said in a TV interview that he did not see any issues with the merger. Petrocelli also said a government report obtained in discovery showed prices for the company's services would go down after the merger.

“It just confirmed that there's no 'there' there,” Petrocelli said. He added that the industry is in the midst of a “transformation” and that the case is important as it relates to the “public's trust and confidence in the integrity of the government's enforcement decisions.”

Leon said he would decide whether to strike the discovery request by Tuesday. He said he was likely to strike Delrahim from AT&T's witness list, and the company could add him again later on if it did so in good faith, to which Petrocelli had no objection.

“I'm very concerned about getting off on a sidetrack,” the judge said.

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