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From Antitrust Law Daily, May 10, 2017

Antitrust chief nominee provides Senate lawmakers with some insights on his agenda

By Jeffrey May, J.D.

"The antitrust laws vigorously, and properly, enforced are the greatest protectors of the free market system that we know and we cherish in this country," Makan Delrahim, the nominee to be the Assistant Attorney General in charge of the Department of Justice Antitrust Division, said at his confirmation hearing before the Senate Judiciary Committee today. "Hard-hosed competition free from inappropriate restraints, leads to lower prices, higher quality of goods and services for the American consumer, and it also helps to encourage technological innovation," he added.

President Trump announced his intention to nominate Delrahim on March 28. Delrahim had served in the Antitrust Division during the administration of President George W. Bush as deputy assistant attorney general. In addition, he served as staff director and chief counsel of the Senate Judiciary Committee.

Senator Orrin Hatch (R-Utah), Delrahim’s former boss while he was on staff at the Judiciary Committee, provided the introduction. Hatch said that "given Makan’s extensive background in both policy and intellectual property law, the president could not have picked a more qualified nominee for this important post." Hatch said that Delrahim was "among the most talented chief counsels I've ever hired."

Possible changes at the Antitrust Division. In response to a question from Senator Mike Lee (R-Utah), the chairman of the Judiciary Committee’s antitrust subcommittee, about what changes to Antitrust Division policies or procedures might be on tap, Delrahim suggested that he might consider having a deputy focus on international issues if confirmed. Noting that one of the greatest exports out of the United States in recent years has been antitrust laws, Delrahim expressed concern that in some cases there might be protectionism or discrimination towards U.S. companies in the application of those laws by over 130 agencies around the world that are new to the antitrust regime. A deputy attorney general focused on international antitrust law would bring additional attention to this issue.

Prior administration’s performance. Delrahim side-stepped a question from Lee about the antitrust enforcement efforts of the Obama Administration. Asked to evaluate antitrust enforcement at the Justice Department over the last eight years, Delrahim suggested it would be inappropriate for him to comment on the performance under the past administration, since he was not privy to the facts or evidence that went into the agency’s enforcement decisions.

Recusals, White House influence. Senator Amy Klobuchar (D-Minn.), ranking member of the antitrust subcommittee, sought reassurances from Delrahim that he would recuse as appropriate. The nominee had already pledged to recuse himself from involvement in the Justice Department’s case, challenging Anthem's proposed acquisition of Cigna. Delrahim said that he intended to meet with career ethics officials at the Justice Department and go through in more details what the contours of the recusals are. Noting that he had three little children, Delrahim said that he "had no intention of going to jail."

Delrahim also assured Klobuchar that "politics will have no role in the enforcement of the antitrust laws" in response to a question about White House involvement in merger negotiations.

Delrahim’s nomination hearing came just two weeks after his April 24 testimony was cancelled at the last minute. The testimony was put on hold because the committee had not received some paperwork. That paperwork was never identified. Apparently, that paperwork has since been received.

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