Column on the OPR memo attempting to justify the ten cannabis investigations w quotes from Democratic AT experts, including @dougmelamed @jbbecon & @billbaer50.

They are correct. The OPR memo fails to justify the investigations and raise serious concerns.

A few thoughts:(1/x) https://twitter.com/rgoodlaw/status/1276527595383861249

First, while agencies occasionally use the 2nd Request process to learn more about an industry, it is neither consistent w the AT Division Manual nor the rule of law to impose significant burdens on firms without a colorable theory that the transaction violates the AT laws.(2/x)

Second, that justification (as many experts cited in the column point out) could not possibly explain a remarkable 10 2nd Requests. (3/x)

Third, the OPR memo points to the fact that ATR narrowed the scope of the 2nd Requests as evidence the investigations were legitimate. That does not follow. The scope & burdens imposed by an investigation should be consistent a reasonable belief that the conduct violates the law.

Without the reasonable belief, the appropriate scope is zero. That the government decided to lessen an already inappropriate burden is not evidence that the investigation itself was legitimate. (5/x)

Fourth, the most problematic line in the OPR memo concludes: "even if the whistleblowers’ allegations were true, OPR finds that ATR’s Second Requests would not have violated any relevant laws, regulations, rules, policies, or guidelines.” (6/x)

That view is not defensible as a matter of rule of law or antitrust policy. Recall that the allegations include opening investigations due to personal animus toward an industry. The OPR conclusion is breathtakingly wrong and certainly inadequate. (7/x)

FWIW, I do think there is a significant difference between the 2nd Requests and the emissions investigation. Critics of the latter usually acknowledge the prima facie elements of a Section 1 violation were plausibly satisfied but note a likely successful defense under Noerr.(8/x)

Reasonable minds can differ about how certain the DOJ or automakers would be to prevail in making out the prima facie case or the Noerr defense. The timing and opening without staff involvement obviously raises questions. (9/x)

But it does strike me as a less clearly compelling example of abuse of power than the merger investigations pending other / additional evidence. (10/x)

Finally, I have been criticized here and privately for "changing my tune" on political interference because I argued a few years ago that there was no evidence of direct political interference with agency decision-making. https://twitter.com/ProfWrightGMU/status/1021832646291333121?s=20

I stand by my views that direct political interference (beyond agenda-setting and establishing priorities) *should* not play a role in agency antitrust decision-making and that agency staff are professionals that are not easily swayed by tweets or Congressional hearings. (12/x)

My view was indeed that there was no credible evidence of problematic interference or abuse. In my view, the recent testimony is new evidence that goes well beyond the tweets and innuendo of a few years ago.

When the facts change I am willing to change my mind. (13/13)