2026 ABA Antitrust Spring Meeting: Luncheon Remarks (March 25, 2026)

It is a pleasure to be here today to address a crucial issue for our nation: how can we defend and repair the rule of law now under assault from a lawless, bullying administration. In 1975, after Watergate, our nation faced a similar challenge. At that time, Edward Levi was selected to lead the U.S. Department of Justice (“DOJ”) and to rebuild its integrity and commitment to professionalism—deciding cases on the merits, treating everyone equally under the law, and advancing freedom and fundamental fairness. Now that the Justice Department Ed Levi shaped—including its ability to enforce the antitrust laws effectively—is being destroyed, we confront the crucial question of how we must respond.

In my talk today, I will set the stage by first talking about the importance of antitrust enforcement. In short, antitrust enforcement is vital for protecting competition and consumers—as well as a critical check on corporate power. Given the increasing levels of consolidation and market power across the economy, vigorous antitrust enforcement is more important than ever. Second, I will explain what “the rule of law” means, why it matters, and how it is under threat in ways we have not seen since the Watergate era. Third, I will explain how, in the face of a lawless and corrupted Justice Department, state Attorneys General can step in to fill the breach to advance our nation’s commitment to merits-based law enforcement. Finally, I will reflect briefly on the work ahead on how we must rebuild, repair, and revitalize our legal institutions.

The choice between effective antitrust enforcement and pay-to-play politics is a critical one for the future of our country. In America, we can either safeguard the principle of competition on the merits subject to fair and predictable rules or we can have crony capitalism and the rule of lobbyists. As economics teaches us, allowing mergers to monopoly—whether because of lax antitrust enforcement or crony capitalism that picks winners (and losers)—undermines economic efficiency, hampers innovation, and harms consumers. Moreover, allowing firms to build monopoly power because of political influence is a threat to democracy itself, encouraging corruption, undermining the fair implementation of our laws, and allowing those with entrenched power to keep it. Because I care deeply about protecting consumers, workers, farmers, upstart entrepreneurs, and our democratic republic, I stand strongly on the side of protecting people and fighting against the corruption of our governmental institutions.

I. An Economy That Does Not Work for All of Us

The antitrust laws were adopted in response to large monopolies that often took the form of “the corporate trusts” that exercised control over many industries in the late 1800s and harmed consumers and workers. At that time, the economy worked well for corporate titans like John D. Rockefeller and J.P. Morgan, but not for hard-working Americans. Today, the concerns are similar—the largest companies are making more money than ever, but consumers, workers, farmers, and small businesses are often struggling to get by.[1] Put differently, in too many sectors, market dominance, not competition, is the norm.

Take, for example, the market for concert ticketing. For a long time, Live Nation/Ticketmaster controlled a monopoly in this market and, even as the cost for providing tickets have fallen because of technological changes, consumers pay more than ever for tickets.[2] In the [ongoing] trial against the company for illegal monopolization, evidence has been introduced that Live Nation employees joked about trying to “gouge” people for parking and V.I.P. upgrades at concerts, calling fans “so stupid” for paying the inflated charges and boasting that they were “robbing them blind.”[3] And this is hardly a new phenomenon: in the case of a 2016 amphitheater concert in Nashville, Ticketmaster added a $14.75 fee on top of a $36 ticket, which Michael Rapino, Live Nation’s chief executive, called “not defendable.”[4] In short, when you are a monopolist, you can mistreat consumers and make money doing it.

The ticketing marketplace is hardly unique. Consider the airline industry, where “between 2005 and 2014, the [DOJ’s] Antitrust Division reviewed seven airline mergers. In five of those cases, there were no challenges; in the other two, the Antitrust Division settled. Now, four airlines control almost 70 percent of domestic air travel in the United States.”[5] This means, in practice, that most consumers can only choose between a mere two or three airlines when making travel plans. Like with ticketing, falling costs for airlines to provide their product has translated into higher profits, not better deals for consumers. Indeed, as The New York Times put it after analyzing how airlines responded to lower fuel prices, the airline industry recorded massive profits at that time and all consumers received were “free peanuts.”[6]

When there is a lack of competition and choice for consumers, it’s not only higher prices, but lower quality that they are forced to endure. Sticking with the airline industry example, consider that during the pandemic, the number one consumer complaint our department received was the concern that airlines—particularly Frontier Airlines—had failed to follow federal consumer protection requirements.[7] After a record number of complaints, I led a coalition of forty state attorneys general effort to call on Congress to take action.[8] Congress failed to do so, but, ultimately, U.S. Transportation Secretary Pete Buttigieg did, spearheading a joint state attorney general and U.S. Department of Transportation partnership to protect airline passengers,[9] which the Trump Administration has since scrapped.[10]

For a final example, consider the case of pharmaceuticals and, in particular, insulin. After our department studied this market, we concluded that insulin prices rose steeply on account of the fact that, with only three manufacturers in the marketplace, the leading companies could increase their prices in tandem with one another.[11] (Similar levels of concentration in the pharmacy benefit management (PBM) market made matters even worse.[12]) What most alarmed me from our analysis was that “40 percent of survey respondents . . . are forced to ration their use of this life saving product at least once a year”[13] and that in some cases, these individuals take even more drastic measures “by fasting as a means of managing their blood sugar levels.”[14]

In short, in too many sectors of our economy, consolidation, exclusion, and limited new entry has left consumers with fewer choices, higher prices, and lower quality product offerings. And these trends have harmed workers, too, as fewer companies in a market have meant fewer jobs and even collusion between companies where they agree not to hire workers from one another.[15] Entrepreneurs, too, have suffered from market dominance, as dominant firms can often—as in the case of Live Nation—discourage or even block entry into concentrated markets, leaving monopolists free to raise costs for or even exclude rivals. From an economic policy perspective, this is bad news—and should sound the alarm for why effective antitrust enforcement is essential.

II. The Rule of Law and Why it Matters

Effective antitrust enforcement depends on the belief that the rules will be applied fairly and vigilantly. In turn, that belief spurs compliance by corporations, with the aid of their counsel, based on their confidence in a predictable and fair system. By contrast, if powerful or politically connected companies can evade antitrust requirements, consumers, workers, and entrepreneurs pay the price—and rivals of politically connected companies are forced to compete on an unfair playing field. Ultimately, that means higher prices, lower output and less innovation because few startups want to compete in such markets. In short, fair and effective antitrust enforcement depends on a commitment to the “rule of law.”[16]

A simple definition of the “rule of law” is that, whether you are rich or poor, politically connected or not, the law is applied equally and fairly. The American ideal of independent judges, procedural protections like due process of law, and checks and balances all seek to advance this principle. In countries around the world where the rule of law does not exist, economic opportunity, economic growth, and political freedom all suffer.[17]

During Watergate, the DOJ turned its back on the rule of law and the principle of treating like cases alike. At the direction of the White House, the Justice Department took part in “pay to play politics,” providing more lenient treatment or dismissing cases altogether because they involved a favored company that was a political donor. In one famous case, the milk lobby donated huge sums to the Nixon re-election campaign, leading the Attorney General, in a case involving collusion by milk producers, to file a civil suit rather than seek criminal prosecution.[18] In another famous case involving ITT, the Justice Department dismissed a case altogether after being directed to do so by the White House–with President Richard Nixon famously calling Deputy Attorney General Richard Kleindeinst ordering that result–on account of a generous campaign contribution.[19] That action was reported publicly before the Watergate scandal even broke, with the leak of a memo from “I.T.T. lobbyist, Dita Beard, which indicated that the $400,000 pledge for the RNC convention was in exchange for the DOJ’s anti-trust settlement.”[20]

In the wake of Watergate, our nation took a long hard look in the mirror, asking what reforms were necessary to safeguard against corruption, protect consumers, and defend the rule of law. One such measure was the Tunney Act, which responded directly to the ITT case and imposed a requirement of independent judicial review of DOJ settlements. It is a point worth noting that, because the Federal Trade Commission (“FTC”) was then a bipartisan commission, no such requirement was put in place for FTC settlements.

At the start of this administration, President Trump called for investigations of specific individuals on his enemies list and the dropping of charges (or issuing of pardons) for his allies, demanding that the Justice Department circumvent its normal procedures. In the case of the dismissal of the prosecution of former NYC Mayor Eric Adams, a number of senior DOJ officials quit rather than disregard the rule of law. Former Assistant U.S. Attorney Hagan Scotten famously stated, in his resignation letter, that:

. . . . any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.[21]

In addition to resignations by DOJ officials, grand juries also made their stand for the rule of law, refusing to indict numerous individuals on President Trump’s enemies list, including former FBI Director Jim Comey, New York Attorney General Tish James, and Colorado Congressman Jason Crow.[22]

Given this Administration’s lack of concern with the rule of law, including offering pardons in the wake of campaign contributions,[23] it is unsurprising that the Justice Department is now undermining antitrust enforcement on the merits and replacing it with dispensing favors for allies. The first case that signaled this trend was the settlement, on the eve of trial, of the merger between Hewlett Packard Enterprise (HPE) and Juniper Networks.[24] In that case, the Department had a compelling case that the merger was anticompetitive based on well-established, generally accepted measures of market concentration.[25]

The nature of the settlement negotiations in the HPE/Juniper case marked a new and unfortunate era for antitrust enforcement. In a stark departure from established practice since Watergate, rather than address the anticompetitive concerns of the merger with antitrust lawyers taking the lead or defending the merger on the merits in court, HPE hired a group of well-connected lobbyists without antitrust expertise to go over the heads of the antitrust division and strike a sweetheart deal that failed to address the merger’s harms at all. After two deputies at the antitrust division were fired, one of them—Roger Alford—gave a speech outlining “The Rule of Law Versus the Rule of Lobbyists” and his view that senior leaders within the DOJ are using their positions to “exert and expand their influence and enrich themselves.”[26]

To respond to this chain of events, a coalition of states—led by Colorado—intervened in the Tunney Act proceeding to urge the court overseeing the case to reject the settlement as not justified on the merits, but rather as the product of untoward political pressures. The signs that the Trump Administration’s Antitrust Division was facing historic pressures to bow to political influence was evident when, right before the firing of the two deputies, one of them—Bill Rinner—stated, in what I will call the “Rinner Rule”: “let me underscore: we care about the quality and professional integrity of the lawyers and economists that appear before us, not their stature in the antitrust bar or their political affiliation or background. We do not plan to hash out merger settlements over martinis.”[27] And after her two deputies were fired, many wondered about the future of antitrust division chief Gail Slater, a question that was answered on February 12, 2026, when she was apparently pushed out by the administration.[28]

The departure of Gail Slater was widely seen as a precursor to future cases being determined by the Rule of Lobbyists rather than the Rule of Law, as Alford had put it.  After her departure, speculation ran rampant that the pending Live Nation/Ticketmaster monopolization trial would be settled on favorable terms to the company.[29] That prediction proved correct when, after the first week of the trial, the DOJ announced a settlement to the judge with the lead trial attorney admitting that he had no prior knowledge of the settlement.[30] In this case, unlike HPE/Juniper, a bipartisan coalition of states were co-plaintiffs and able to continue the trial without the DOJ.

A final case that fits the above pattern involves the proposed merger of Nexstar and Tegna, two local broadcast station companies. Instead of allowing the DOJ’s Antitrust Division and Federal Communications Commission (“FCC”) to evaluate the case independently on its merits, President Trump specified his desired outcome, posting on social media: “We need more competition against THE ENEMY, the Fake News National TV Networks…GET THAT DEAL DONE.”[31] Nexstar had worked to curry favor for the merger, previously pressuring Disney to suspend the airing of Jimmy Kimmel Live! and owned one of two ABC affiliates that initially refused to air the show upon its return.[32] FCC Chairman Brendan Carr, who had celebrated Nexstar’s actions to pressure Kimmel off the air,[33] followed up on President Trump’s social media post by taking the steps necessary to overturn the FCC’s rules about local television station ownership that previously prevented the merger.[34]

Just last Thursday, the DOJ and the FCC approved the Nexstar-Tegna merger, disregarding established standards and its own prior precedents.[35] By contrast, a coalition of states—including Colorado—challenged this merger as presumptively illegal.[36] In so doing, as I will now discuss, we demonstrated how State AGs are ready and willing to challenge mergers when the federal government refuses to do so.

III. State Attorneys General Fill the Gap

A generation ago, state attorneys general could be viewed as an annoyance or actors easily swayed by political concerns, as was the case when then-New York AG Dennis Vacco accepted a settlement in a merger challenge to Long Island hospitals that did not track the antitrust concerns raised by the DOJ.[37] Today, however, it is state AGs who are holding the line on the rule of law and effective antitrust enforcement—and we are doing it on a bipartisan basis.

As highlighted above, the first case where the states stepped in to safeguard merits-based antitrust enforcement was HPE/Juniper. We filed our brief with the court and it held a hearing earlier this week to determine whether to, as we requested, reject the settlement because it is not in the public interest due to the corrupted process that led to the settlement and because it does not address the competitive concerns alleged by the antitrust division in the litigation. In short, we requested that the court remedy the failings in that case and protect the Rule of Law from the Rule of Lobbyists.

The second case discussed above is the Live Nation monopolization case. In that case, the DOJ agreed to a settlement that extends an existing consent decree for another eight years,[38] even after Live Nation previously violated the requirements of that same decree.[39] Concluding this settlement was plainly inadequate, a bipartisan coalition of state AGs took over the case to ensure meaningful relief. [40]

The third case discussed above is the merger challenge to the Nexstar/Tegna merger. The DOJ’s failure to apply the established Merger Guidelines in this case was both notable and a warning sign. Local broadcast stations affiliated with a major network is a well-established market, with prior cases—including ones involving Nexstar—requiring divestitures to avoid a merger between the major four TV broadcast stations in a market.[41] In the case of the Nexstar-Tegna merger, however, the DOJ ignored its established guidelines—which presume mergers are illegal for far less concentration than achieved in this case—and disregarded its prior precedents. Instead, it decided that in a market like Denver, the two top local broadcast stations could merge and achieve a 57% market share.[42] As I explained in challenging this merger, it must be stopped because it will raise prices for cable and satellite subscribers, undermine the quality of journalism and local broadcast offerings, and reduce the diversity of perspectives in the market.[43]

What merits emphasis in the latter two cases is that they are possible because Congress established a system of cooperative federalism, where states possess parallel authority to the DOJ to enforce the antitrust laws. In a 2020 case involving a challenge to the Sprint/T-Mobile merger, the DOJ challenged this principle, arguing that states do not have the authority to “override the sovereign interests of the United States.”[44] Thankfully, the court rejected this argument, recognizing the complimentary relationship between state and federal antitrust enforcement. By contrast, in the challenge to the Kroger/Albertsons grocery store megamerger, the DOJ specifically acknowledged that states “can often provide unique perspectives” [45] and are well-positioned to tailor solutions to local markets.[46] This acknowledgment followed what the Supreme Court recognized in an earlier grocery store merger case, California v. American Stores, where it allowed California to pursue a merger challenge, concluding that state enforcement was “in no sense an afterthought [in antitrust enforcement]; it was an integral part of the congressional plan for protecting competition.”[47]

The message to companies facing antitrust issues is simple: even if the DOJ won’t enforce the antitrust laws effectively, the states are ready and able to do so. To be sure, it would be far preferable to work with federal actors that acted based on the Rule of Law. But if that is not an option, the States have shown that we can take on big companies and work together to win. This highlights a parallel message to antitrust lawyers—to tell their clients that, regardless of how the DOJ handles a case, the states have a vigilant commitment to enforce the antitrust laws, to uphold the rule of law, and to make decisions on the merits. A number of companies and lawyers are now learning that lesson.

IV. The Work Ahead

I would like to close with some thoughts on the path forward. Restoring trust in the federal government, particularly the DOJ, will be difficult. Integrity, once lost, is not easily regained. We have both near-term challenges and long-term challenges.

On the near-term front, we are looking at almost three more years of the Trump DOJ. A critical question is how to protect merits-based antitrust enforcement during that time. Ideally, a core part of the answer will be that Congress is willing and able to both exercise oversight and partner with state attorneys general. Indeed, it would be appropriate and sound for Congress to consider appropriating funds directly to state AGs, at least in cases where we are willing and able to litigate cases on a bipartisan basis where the DOJ refuses to act. It also would be helpful to make clear that State AGs enjoy a unique role in taking action in Tunney Act proceedings to protect the integrity of merger review.

On the longer-term front, we are going to need to update the Tunney Act and to evaluate how to improve antitrust enforcement in the face of the corrupting of the DOJ’s post-Watergate norms. Through independent judicial reviews over merger settlements, the Tunney Act provides a critical safeguard and advances the crucial insight famously offered by Supreme Court Justice Louis Brandeis: “sunlight is said to be the best of disinfectants.”[48] But there will need to be reforms to the law, including extending its applicability to the FTC, which is now at risk of losing its independence and bipartisan nature if the illegal firing of FTC Commissioner Slaughter is upheld by the U.S. Supreme Court.[49]

Finally, we need to invest in state capacity to take on these cases. The National Association of Attorneys General (“NAAG”) was founded to confront the rise of the corporate trusts and enable multistate collaboration. The work of state attorneys general, and our ability to collaborate effectively, is now more important than ever and part of the answer to the challenge of compensating for a federal government failing to enforce the antitrust laws reliably and effectively. Another part of the answer is the rise of state requirements to receive and review Hart Scott Rodino merger filings, which provides a valuable safeguard against the risk that companies with mergers before the DOJ will use lobbying pressure to force the antitrust division to skip a key step of gathering information and won’t even undertake the necessary analysis to make an informed decision.[50] It merits note, however, the key protections of the Hart-Scott-Rodino law—governing the timing of merger closings—only apply to the federal antitrust agencies, raising the question of how states can pick up the slack in cases where the federal agencies fail to review mergers on the merits.

In an example of the type of multistate collaboration we need, state attorneys general have already banded together to pick up the torch dropped by the DOJ in the Live Nation monopolization case. And are also doing in the challenge to the Nexstar-Tegna merger, which is unlikely to be the last such case of its kind. Looking for effective ways to work with the private bar, including the role played by plaintiffs’ lawyers and private attorneys general, will almost certainly be another part of the answer. But building up the capacity to take on this role won’t happen overnight, as antitrust cases are expensive and resource intensive. It will thus take time for states to develop the experience necessary to protect consumers effectively by taking on the cases where the DOJ is sidelined on account of this administration’s corrupting of the DOJ.

* * *

The rule of law is not an abstract ideal, it is the foundation on which free markets, democratic governance, and economic opportunity all depend. When enforcement decisions are made through backdoor dealing without regard to the merits, the costs are real and serious: higher prices, less innovation, fewer choices, less predictability, and an erosion of the public trust that makes legitimate governance possible.

At this crucial moment for our republic, state attorneys general are not going to stand aside as the rule of law is undermined and effective antitrust enforcement is sidelined. We have the authority, the track record, the ability, and the commitment to act—whether that means pursuing our own cases, challenging federal decisions, or using the tools of transparency and public accountability to call out failings in federal antitrust enforcement. And when we do so on a bipartisan basis, perhaps we can show the way for Congress to step up to do its job of oversight in the interest of all American people, as it did exceptionally well in the wake of Watergate.

The American experiment in democratic governance and free enterprise is resilient, but it is not self-sustaining. It requires vigilance, integrity, and the courage to speak when we notice something wrong. I believe we are up to this challenge and that we will succeed. Thank you.

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[1] As Carl Shapiro underscored, “evidence that U.S. markets have become more concentrated, evidence that price/cost margins have risen, evidence that entry barriers have become higher, and evidence that corporate profits have risen substantially and are expected to persist” all are causes for concern. Carl Shapiro, Antitrust in a Time of Populism, 61 INT.’L J. INDUS. ORG. 714, 717-19 (2018); see also COUNCIL OF ECON. ADVISORS, BENEFITS OF COMPETITION AND INDICATORS OF MARKET POWER (Apr. 2016), https://obamawhitehouse.archives.gov/sites/default/files/page/files/20160414_cea_competition_issue_ brief.pdf (PDF).

[2] Sen. Richard Blumenthal, Minority Staff Report, S. Permanent Subcomm. on Investigations, 119^th Cong., So Casually Cruel: How Ticketmaster’s Monopoly Supercharges Prices and Fees (Mar. 16, 2026), https://www.hsgac.senate.gov/wp-content/uploads/2026_03_16-Live-Event-Ticket-Report-1.pdf (PDF).

[3] Ben Sisario, ‘Robbing Them Blind’: Live Nation Employees Joked About Fees, N.Y. TIMES (Mar. 12, 2026), https://www.nytimes.com/2026/03/12/arts/music/live-nation-ticketmaster-trial-fees-slacks.html (opens new tab).

[4] Id.

[5] Bill Baer et al., RESTORING COMPETITION IN THE UNITED STATES 28 (Nov. 2020), https://faculty.haas.berkeley.edu/shapiro/restoringcompetition.pdf (PDF).

[6] Jad Mouawad, Airlines Reap Record Profits, and Passengers Get Peanuts, N.Y. TIMES (Feb. 6, 2016) (“A decade of consolidation has reduced the number of airlines competing in many markets, making it easier for dominant carriers to charge more for flights.”).

[7] See Aldo Svaldi, Frontier, other airlines generated more consumer complaints in Colorado last year than robocalls, DENVER POST (Mar. 2, 2021), https://www.denverpost.com/2021/03/02/coloradoconsumer-complaints-airlines-frontier-robocalls (opens new tab).

[8] Nat’l Ass’n of Att’ys Gen., Attorneys General Call for New Consumer Protections to Protect Airline Industry Customers (Oct. 2, 2020), https://www.naag.org/policy-letter/attorneys-general-call-for-newconsumer-protections-to-protect-airline-industry-customers (opens new tab).

[9] Secretary Buttigieg Launches Bipartisan Partnership with State Attorneys General to Protect Airline Passengers, U.S. Dep’t of Transportation (Apr. 16, 2024), https://www.transportation.gov/briefing-room/secretary-buttigieg-launches-bipartisan-partnership-state-attorneys-general-protect (opens new tab).

[10] The administration also withdrew an Advance Notice of Proposed Rulemaking (ANPRM) from the Biden administration that outlined possible measures to help air travel consumers affected by cancellations or lengthy delays. Airline Passenger Rights; Withdrawal, 90 Fed. Reg. 51230 (Nov. 17, 2025).

[11] PRESCRIPTION INSULIN DRUG PRICING REPORT, COLO. DEP’T OF LAW (Nov. 2020), https://coag.gov/app/uploads/2020/11/Insulin-Report-102020.pdf (PDF); see also Lydia Ramsey Pflanzer, There’s Something Odd About the Way Insulin Prices Change, BUS. INSIDER (Sept. 17, 2016), https://www.businessinsider.com/rising-insulin-prices-track-competitorsclosely-2016-9 (opens new tab).

[12] See generally Robin Feldman, Insulin Costs in the State of Colorado, Univ. Cal. Hastings Law, Ctr. for Innovation (C4i), reprinted in App. B, PRESCRIPTION INSULIN DRUG PRICING REPORT; Duane Schulthess, Insulin Prices and Pharmacy Benefit Manager Rebates: Pin the Tail on The Patient, STAT NEWS (Mar. 19, 2020), https://www.statnews.com/2020/03/19/insulin-prices-pbm-rebates (opens new tab); Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies, Off. of Pol’y Plan., U.S. Fed. Trade Comm’n (July 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/pharmacy-benefit-managers-staff-report.pdf (PDF).

[13] PRESCRIPTION INSULIN DRUG PRICING REPORT at 16.

[14] Id. at 2

[15] For example, Kroger and Albertsons grocery stores agreed that Albertsons would not hire any King Soopers workers during a strike. Complaint, Colorado v. Kroger, No. 2024CV30459 (Colo. Dist. Ct.), Dkt. 1, ¶152-163.

[16] I have previously discussed this concept at length. See Prepared remarks: The Rule of Law and Antitrust, at New York University Law School (Apr. 20, 2024), https://coag.gov/blog-post/rule-of-law-antitrust-4-20-24; see also Towards an International Dialogue on the Institutional Side of Antitrust, 66 N.Y.U. Ann. Surv. Am. L. 445 (2011), https://www.law.nyu.edu/sites/default/files/ECM_PRO_068796.pdf (PDF).

[17] David Dettman, Upholding Prosperity: The Economic Benefits of the Rule of Law, AMERICAN BAR ASSOCIATION (Sept. 13, 2024), https://www.americanbar.org/advocacy/global-programs/news/2024/upholding-prosperity-economic-benefits-rule-law (opens new tab) (“The rule of law ensures that legal frameworks are transparent, consistent, and enforced impartially. In societies where the rule of law prevails, businesses can operate with confidence, knowing that contracts will be upheld, property rights protected, and disputes resolved fairly. This certainty reduces risks for investors and encourages entrepreneurship, leading to vibrant business ecosystems and higher levels of innovation.”); see also Towards an International Dialogue on the Institutional Side of Antitrust, 66 N.Y.U. Ann. Surv. Am. L. 456, (“procedural fairness promotes the kind of ‘transparent and predictable business environment’ that attracts international investment and entrepreneurial activity.”).

[18] Staff of Watergate Links Milk Prices to Nixon Aid, N.Y. TIMES (Jun. 1, 1974), http://nytimes.com/1974/06/01/archives/staff-of-watergate-links-milk-prices-to-nixon-aid-written-by.html (opens new tab).

[19] See Ciara Torres-Spelliscy, The I.T.T. Affair and Why Public Financing Matters for Political Conventions, BRENNAN CENTER FOR JUSTICE (Mar. 19, 2014), https://www.brennancenter.org/our-work/analysis-opinion/itt-affair-and-why-public-financing-matters-political-conventions (opens new tab).

[20] James M. Naughton, Alleged Memo Ties I.T.T. Trust Action To G.O.P Funding, N.Y. TIMES (Mar. 1, 1972), https://www.nytimes.com/1972/03/01/archives/alleged-memo-ties-itt-trust-action-to-gop-funding-alleged-memo.html (opens new tab).

[21] Resignation Letter from Assistant United States Attorney for the Southern District of New York Hagan Scotten to Acting Deputy Attorney General Emil Bove III, THE AMERICAN PRESIDENCY PROJECT (Feb. 14, 2025), https://www.presidency.ucsb.edu/documents/resignation-letter-from-assistant-united-states-attorney-for-the-southern-district-new (opens new tab).

[22] Alanna Durkin Richer and Michael Kunzelman, Justice Department fails twice to re-indict New York Attorney General James, AP Source says, PBS NEWS (Dec. 11, 2025), https://www.pbs.org/newshour/politics/justice-department-fails-twice-to-re-indict-new-york-attorney-general-james-ap-source-says (opens new tab); Josh Gerstein and Kyle Cheney, Prosecutors fail to secure indictment against 6 Dem lawmakers, POLITICO (Feb. 10, 2026), https://www.politico.com/news/2026/02/10/lawmakers-military-orders-grand-jury-indictment-00775504 (opens new tab).

[23] As one commentator put it, “Evidence of the pervasive corruption is endemic, in the presidential pardons to donors and the well connected, in the regulatory favoritism found at key agencies, in the flow of special interest and foreign investments into the Trump family’s cryptocurrency businesses.” Thomas B. Edsall, The Trump 1 Percent Fan Club Has a Lot of New Members, N.Y. TIMES (Feb. 24, 2026), https://www.nytimes.com/2026/02/24/opinion/trump-1-percent-elites-taxes.html (opens new tab); see also Eric Tucker and Alanna Durkin Richer, How the Trump administration erased centuries of Justice Department experience, PBS NEWS (Jan. 16, 2026), https://www.pbs.org/newshour/nation/how-the-trump-administration-erased-centuries-of-justice-department-experience (opens new tab); Jeremy Kohler, How Trump Has Exploited Pardons and Clemency to Reward Allies and Supporters, PROPUBLICA (Nov. 12, 2025) https://www.propublica.org/article/trump-pardons-clemency-george-santos-ed-martin (opens new tab); see also Brennan Center for Justice, Political Donors Should Not Be Above the Law (Sept. 12, 2025), https://www.brennancenter.org/our-work/analysis-opinion/political-donors-should-not-be-above-law (opens new tab) (Outlining how two corporate executives, Paul Walczak and Trevor Milton, were both granted pardons after Trump received contributions on their behalf. Walczak’s mother attended a $1 million-per-person fundraiser at Mar-a-Lago, and Milton contributed $920,000 to the Trump 47 committee.).

[24] Tunney Act Comments of the American Antitrust Institute, 5 (Sept. 8, 2025), https://www.antitrustinstitute.org/wp-content/uploads/2025/09/AAI-Tunney-Act-Comments-HPE-Juniper-9.8.25.pdf (PDF).

[25] Attorney General Phil Weiser urges court to reject corrupted $14B Hewlett Packard Enterprise/Juniper Networks merger settlement, COLO. DEP’T OF LAW (Mar. 16, 2026), https://coag.gov/press-releases/weiser-urges-court-to-reject-corrupted-hewlett-packard-juniper-networks-merger-settlement.

[26] Roger P. Alford, The Rule of Law Versus the Rule of Lobbyists, TECH POLICY INSTITUTE ASPEN FORUM (Aug. 18, 2025), https://docs.house.gov/meetings/JU/JU05/20251216/118753/HHRG-119-JU05-20251216-SD009-U9.pdf [hereinafter Alford Speech] (PDF); see also Dana Mattioli, Rebecca Ballhaus, and Josh Sawsey, The Threats and Bare-Knuckle Tactics of MAGA’s Top Antitrust Fixer, WALL ST. J. (Mar. 20, 2026), https://www.wsj.com/us-news/law/lobbyists-antitrust-trump-davis-f6a02e04 (opens new tab).

[27] DAAG Bill Rinner Delivers Remarks to the George Washington University Competition and Innovation Lab Conference Regarding Merger Review and Enforcement, OFFICE OF PUBLIC AFFAIRS, U.S. DEP’T OF JUSTICE (Jun. 4, 2025), https://www.justice.gov/opa/speech/daag-bill-rinner-delivers-remarks-george-washington-university-competition-and (opens new tab).

[28] Kaitlin Collins, Justice Department’s antitrust chief has been fired, sources say, CNN (Feb. 12, 2026), https://www.cnn.com/2026/02/12/politics/doj-antitrust-chief-fired (opens new tab).

[29] Notably, shares of Live Nation stock jumped nearly 6% after Slater announced her departure. Steve Kopack and Daniel Arkin, Justice Department’s antitrust chief says she’s leaving, effective immediately, NBC NEWS (Feb. 12, 2026), https://www.nbcnews.com/business/business-news/justice-antitrust-chief-slater-leaving-rcna258759 (opens new tab).

[30] Judge Subramanian denounced the failure to disclose the settlement and said, “It shows absolute disrespect for the court, the jury, and this entire process. It’s absolutely unacceptable.” Allie Canal, Chloe Atkins, and Ryan Reilly, Live Nation settles antitrust case with DOJ, avoids Ticketmaster breakup, NBC NEWS (Mar. 9, 2026), https://www.nbcnews.com/business/consumer/ticketmaster-live-nation-settles-antitrust-case-rcna262392 (opens new tab).

[31] Christopher Rugaber, Trump praises Nexstar-Tegna broadcast television deal he once opposed, AP NEWS (Feb. 7, 2026), https://apnews.com/article/trump-nexstar-tegna-deal-037c97de84d1249c2122c8d503fda38c (opens new tab).

[32] Chloe Veltman, Sinclair and Nexstar restore ‘Jimmy Kimmel Live!’ to their local TV stations, NPR (Sept. 26, 2025), https://www.npr.org/2025/09/26/nx-s1-5554473/jimmy-kimmel-sinclair-disney-abc-preempt-restore-nexstar (opens new tab).

[33] Brendan Carr (@BrendanCarrFCC), X (Sept. 17, 2025, at 5:00 PM), https://x.com/BrendanCarrFCC/status/1968449919221416427 (opens new tab).

[34] The Editorial Board, Legally Creative, Democratically Dangerous: Trump’s Plan to Twist the News, N.Y. TIMES  (Feb. 24, 2026), https://www.nytimes.com/2026/02/24/opinion/fcc-ftc-free-speech-trump.html (opens new tab).

[35] Daniel Arkin, FCC green-lights Nexstar’s $6.2B merger with rival TV station owner Tegna, NBC News (Mar. 19, 2026), https://www.nbcnews.com/business/media/fcc-greenlights-nexstars-62b-merger-rival-tv-station-owner-tegna-rcna237953 (opens new tab).

[36] Plaintiff States v. Nexstar Media Group Inc. et al, No. 2:26-at-00487 (E.D. Cal. 2026).

[37] See John R. Wilke & Lucette Lagnado, Justice Department Challenges Merger of New York Hospitals, WALL ST. J. (Jun. 12, 1997), https://www.wsj.com/articles/SB866070709731511500 (opens new tab) (“New York Attorney General Dennis Vacco took issue with the Justice Department, saying he approves of the merger and won assurances from both hospitals that the consolidation will lower costs for consumers.”).

[38] Isabella Gomez Sarmiento, Live Nation and Justice Department reach settlement in antitrust case, NPR (Mar. 9, 2026), https://www.npr.org/2026/03/09/nx-s1-5742433/live-nation-ticketmaster-doj-antitrust-case (opens new tab).

[39] Ben Sisario, David McCabe, and Olivia Bensimon, Justice Department and Live Nation Reach Settlement Terms in Antitrust Case, N.Y. TIMES (Mar. 9, 2026), https://www.nytimes.com/2026/03/09/arts/music/live-nation-ticketmaster-antitrust-suit-settled.html (opens new tab).

[40] Attorney General Weiser vows to continue case against Live Nation for illegally monopolizing live music industry, COLO. DEP’T OF LAW (Mar. 9, 2026), https://coag.gov/press-releases/weiser-vows-to-continue-case-against-live-nation.

[41] U.S. and Plaintiff States v. Nexstar Media Group et al., No. 19-02295 (D.D.C. 2019).

[42] Plaintiff States v. Nexstar Media Group Inc. et al, No. 2:26-at-00487 (E.D. Cal. 2026). The FCC also disregarded its established standards in enabling this merger to proceed, as Commissioner Gomez stated plainly in her dissent, concluding that the FCC’s action “ignored the law, disregarded the public interest, and bypassed the full Commission on one of the most consequential broadcast transactions in recent memory.” Statement of Commissioner Anna M. Gomez, Gomez Dissent: Transfer of Control of TEGNA to Nexstar Media (Mar. 20, 2026), https://docs.fcc.gov/public/attachments/DOC-420003A1.pdf (PDF).

[43] Attorney General Phil Weiser sues to block $6.2B Nexstar/Tegna broadcast merger, COLO. DEP’T OF LAW (Mar. 19, 2026), https://coag.gov/press-releases/weiser-sues-to-block-nexstar-tegna-broadcast-merger.

[44] Statement of Interest of the United States at 25, New York v. Deutsche Telekom AG, 439 F. Supp. 3d 179 (S.D.N.Y. 2020) (No. 1:19-cv-5434-VM-RWL).

[45] Statement of Interest of the United States of America at 3, Colorado v. Kroger Co., No. 2024CV30459 (Colo. Dist. Ct. May 3, 2024), https://www.justice.gov/d9/2024-05/421700.pdf (PDF).

[46] For an example of states engaging in meaningful antitrust enforcement at a local level, even when federal enforcers decline to take action, the UnitedHealth and DaVita merger is illustrative. Colorado acted to protect competition in the Medicare Advantage market. Leading up the merger, a new competitor, Humana, had entered the market and eroded the market share of UnitedHealth. Humana’s relationship with Davita’s clinics was critical to its ability to compete in this market and UnitedHealth’s acquisition of DaVita would have severed this relationship. Colorado obtained a remedy that protected residents and prevented anticompetitive practices. In re UnitedHealth Group and DaVita, No. 181-0057 (F.T.C. June 19, 2019), https://www.ftc.gov/system/files/documents/public_statements/1529359/181_0057_united_davita_stat ement_of_cmmrs_s_and_c.pdf [https://perma.cc/JLT5-Y68R] (PDF) (Statement of Commissioners Rebecca Kelly Slaughter and Rohit Chopra); John Ingold, Colorado attorney general intervenes in $4.3 billion DaVita-UnitedHealth merger just as deal is finalized, THE COLORADO SUN (Jun. 19, 2019), https://coloradosun.com/2019/06/19/davita-unitedhealth-merger-colorado-attorney-general (opens new tab).

[47] California v. Am. Stores Co., 495 U.S. 271, 284 (1990). I discuss cooperative federalism and the state role in antitrust enforcement further in Philip J. Weiser, The Enduring Promise of Antitrust, 52 Loy. U. Chi. L. J. 1 (2020).

[48] Louis D. Brandeis, What Publicity Can Do, Harper’s Weekly (Dec. 20, 1913), https://www.sechistorical.org/collection/papers/1910/1913_12_20_What_Publicity_Ca.pdf (PDF).

[49] Trump v. Slaughter, No. 25-332 (U.S) (argued Dec. 8, 2025).

[50] Dana Mattioli, Rebecca Ballhaus, and Josh Sawsey, The Threats and Bare-Knuckle Tactics of MAGA’s Top Antitrust Fixer, WALL ST. J. (Mar. 20, 2026), https://www.wsj.com/us-news/law/lobbyists-antitrust-trump-davis-f6a02e04 (opens new tab) (discussing decision to not pursue a second request in the Compass’ purchase of a leading rival).