Posted on Sunday, November 3, 2024
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by Outside Contributor
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The presidential election remains closely balanced, but apparently the Biden/Harris administration’s Department of Justice (DOJ) and Federal Trade Commission (FTC) aren’t taking any chances now that the window of opportunity to sabotage American businesses that they disfavor is shutting.
Amid a growing cavalcade of Biden/Harris administrative agency miscues and misdeeds, a letter from Republican Senators Tom Cotton, Mitch McConnell, Bill Cassidy, Thom Tillis and Pete Ricketts to the DOJ and FTC suggests that the FTC has engaged in a campaign of deliberate leaks:
We write asking you to investigate whether the Department of Justice and the Federal Trade Commission have violated their own ethics rules by systematically leaking potential antitrust cases to a specific media outlet.
Since 2023, Bloomberg News has broken the news in at least twelve instances that DOJ or FTC was “preparing” or “poised” to take legal action before a lawsuit was filed. Indeed, the same journalist reported on eleven of these cases. This pattern suggests that certain officials at DOJ and FTC are intentionally publicizing legal action days or weeks before filing.
These leaks result in negative headlines about the administration’s targets while the targeted companies have no way to respond, as they haven’t yet seen the potential lawsuits. Both DOJ and FTC have ethics rules that prohibit leaking civil cases before the cases are filed.
The letter proceeds to cite a dozen specific examples, involving such Biden/Harris administration targets as Visa, Apple, Kroger, Live Nation/Ticketmaster and Nippon Steel/U.S. Steel, among others.
Beyond violating applicable ethical regulations, the Senators correctly note that such leaks jeopardize the companies’ employees, investors and other vulnerable parties:
If the companies have engaged in wrongdoing, by all means the government should try them in a court of law. But the Biden-Harris administration shouldn’t try them in the liberal media. These leaks appear to be simply one more instance of this administration weaponizing the administrative state against politically disfavored opponents and critics, much like DOJ investigating parents at school-board meetings or FTC targeting Elon Musk and Twitter for insufficient censorship of conservatives.
The Senators are correct. The role of agencies like the FTC and DOJ is to uphold appropriate legal standards in the realm of interstate commerce, and to ensure consumer protection, transparency and market competition. When such agencies improperly leak details of looming prosecutions, however, they venture from their missions and generate a plethora of economic, legal and judicial dangers.
As the Senators note, that agency behavior bypasses constitutional due process requirements, partially by creating a reflexive impression of guilt on the part of the accused entities in the court of public opinion before any formal proceedings have even occurred. That undermines concepts of fair treatment, and also leads to potentially significant reputational damage that persists even for companies later cleared of wrongdoing. Moreover, as the letter notes, leaks distort the legal process by inviting speculation that can influence the potential jury pool via media narratives surrounding the matter.
Leaks of the sort in question also create a risk of financial instability, since they can trigger market panic and unjustified sale of stock. Publicly traded companies are obviously particularly vulnerable, since leaked information often leads to plunging stock prices, which in turn harms shareholders and, more broadly, our economy. Those reactions to leaked prosecution possibilities can spread quickly across markets, thereby affecting investor confidence and even leading to wider economic repercussions.
Those disruptions can also negatively affect employees, customers, suppliers and others connected in some way to the companies targeted, leading to layoffs, interruptions in product availability and diminished trust in the targeted companies’ ability to operate reliably.
Finally, such misconduct by federal agencies further undermines trust in government and public institutions. By creating an impression that agencies operate out of partisan motivation rather than as objective enforcers of applicable laws, that erodes confidence in those agencies and government generally. The public will further question the legitimacy of agency actions, suspecting that prosecutorial decisions flow from political motivation rather than legitimate regulatory concern. That not only weakens those agencies’ authority, but also can trigger a reluctance among regulated companies to cooperate, knowing that such cooperation and information voluntarily shared with agencies may later be leaked to their detriment.
For these reasons, the Senators are right to call out the Biden/Harris administration and demand answers. Whoever wins this month’s presidential election, our system of governance demands fair play on the part of executive branch agencies, and they cannot risk further erosion of public confidence.
Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom.
Reprinted with Permission from CFIF.org – By Timothy H. Lee
The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.
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