US Solicitor General Noel Francisco is all but putting a stop to any Department of Justice appeal in its suit to stop AT&T from buying Time Warner, two sources have told The Post.
President Trump’s DOJ has until Aug. 12 to decide whether to appeal its unsuccessful case to block AT&T’s transformational $85 billion merger with Time Warner.
“The DOJ might handle the [initial] appeal, but if the solicitor general had a view about whether the case should be appealed, that would carry the day,” the source said.
The solicitor general would be bringing the case against the merger to the Supreme Court if the DOJ won on appeal, and the DOJ is very unlikely to appeal if Francisco is not on board, a source who knows Francisco said.
“I don’t think the fact folks in Justice want to appeal would sway Noel,” the source said.
Fox Business Network reporter Charles Gasparino reported on Tuesday that the DOJ has decided to appeal but is getting resistance from Francisco’s office.
The DOJ is interested in appealing, a source with direct knowledge of its thinking said.
However, Francisco generally has a skeptical view of government interference in mergers, making him even less likely to support an appeal, the source said.
Appealing District Court Judge Richard Leon’s June 12 decision would be a hard road, sources said, even if Francisco were on board.
The Court of Appeals has to accept all of Leon’s facts as accurate and only analyze whether Leon correctly interpreted or applied the law, a legal expert told The Post.
Leon did not dispute the DOJ’s views on the key legal principles, such as burden of proof. He chose certain facts and found that the facts did not support the DOJ’s case, the expert said.
The DOJ believes Leon ignored its facts, but that in itself is not enough to win on appeal, sources said.
“I think Noel would see this as an unwinnable case,” the source close to Francisco said.
A risk for the DOJ is if it appealed and lost, the Appeals Court might make a broader decision and offer a skeptical view about stopping all vertical mergers like AT&T-Time Warner.
Leon did not directly address vertical mergers.
At present the DOJ is reviewing two other vertical mergers, CVS Health’s $68 billion deal to buy Aetna, and Cigna’s $54 billion deal to buy Express Scripts.
AT&T closed the merger with Time Warner, owner of HBO, Cartoon Network, TBS and TNT, on June 14.
Trump’s DOJ argued the merger would give AT&T, owner of DirecTV, too much power when it was negotiating contracts with rival cable companies.
The Department of Justice declined comment. The solicitor general did not return calls.
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