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 U.S. attorney 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 executive-wide and department-specific codes of conduct. Delrahim specifically...
