Last month, we discussed Makan Delrahim's background, including his experience litigating antitrust and intellectual property matters at the Department of Justice during the George W. Bush administration and his extensive lobbying work at Brownstein, Hyatt, Farber and Schreck. On May 10, senators from the Senate Judiciary Committee held a hearing and asked Delrahim about several matters that pose potential challenges should he be confirmed as Assistant Attorney General of the Antitrust Division of the DOJ. For the most part, Delrahim provided candid answers, at one point even offering, “I'm an open book on this issue.” Three discussions were ­particularly insightful.

PLEDGED TO RECUSE HIMSELF FROM PAST MATTERS

As we noted in last month's ­article, Delrahim faces a number of potential ­conflicts if confirmed to the Antitrust Division. From August 2005 to January 2017, Delrahim lobbied on behalf of a number of large corporate clients facing controversial merger review such as health insurer Anthem in its proposed (and now defunct) combination with rival Cigna. Delrahim also represented clients in other high-profile transactions including AMC Entertainment in its merger with Loews Cineplex Entertainment; T-Mobile in its merger with MetroPCS Communications; US Airways in its failed merger with Delta Airlines; and Comcast in its merger with NBC Universal, as well as other corporate clients such as Microsoft, Oracle, Apple, Qualcomm, Pfizer, Neiman Marcus, Merck and Johnson & Johnson.

Chairman Chuck Grassley's first question for Delrahim was, “What recusal policy would you follow to avoid conflicts?” Delrahim responded that he would consult with ethics officials in the Department of Justice as well as the Antitrust Division. When Grassley probed further to determine how Delrahim would handle the Antitrust Division's investigation into the Anthem/Cigna merger, Delrahim pledged to recuse himself from that matter, noting (perhaps presciently), “I understand the merger is now on appeal to the Supreme Court, and we will see what happens.” When Sen. Amy Klobuchar later returned to the topic of recusal, Delrahim affirmed his commitment to meet with ethics officials, noting in particular the potential ethical problems posed by “past clients, and clients of my former employer, my law firm.”

DOJ officials are bound by a number of overlapping ethical obligations, including criminal provisions of the U.S. Code as well as executivewide and department-specific codes of conduct. Delrahim specifically invoked Title 18 U.S.C. Section 208 during his hearing, saying, “I have three little children. I have no intention of going to jail.” Section 208 ­prohibits an ­executive-branch employee from participating “in a judicial or other proceeding … in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee … has a financial interest.” But as a political appointee, Delrahim will be subject to ethics rules that may impose even more stringent limitations than Section 208. For example, executive order No. 13770, issued Jan. 28, requires executive agency appointees to pledge that they “will not for a period of two years from the date of their appointment participate in any particular matter involving specific parties that is directly and substantially related to their former employer or former clients” or ­”participate in any particular matter on which they lobbied within the two years before the date of their appointment or participate in the specific area in which that particular matter falls.”

PROMISED INDEPENDENCE FROM THE WHITE HOUSE

Another major topic probed by Klobuchar was whether Delrahim would maintain the Antitrust Division's historic independence from the White House. Noting that President Donald Trump had previously commented on pending mergers, Klobuchar asked, “What would you do, if you're in this job, if the president, or the vice president, or a White House staffer calls, and wants to discuss a pending investigation of an antitrust matter?” Delrahim responded, “Politics will have no role in the enforcement of the antitrust matters.” As Delrahim further explained, the Antitrust Division serves an independent law enforcement function and “there are procedures in the White House in how you communicate with the Justice Department, and who are the—there's a handful of senior officials who can communicate through the White House Counsel's office, and senior officials at the Justice Department for any pending matters.”