US Law

Regarding Those Marijuana Mergers: A Response to Accusers Who Question the DOJ

By Roger Alford, Just Security

From 2017 to 2019 I had the distinct pleasure of serving as the Deputy Assistant Attorney General in the Antitrust Division of the Department of Justice under the leadership of Assistant Attorney General Makan Delrahim.  As everyone in the antitrust world knows, one of the singular accomplishments that Makan Delrahim has achieved as AAG was a global framework on fundamental due process.  For over two years, we labored to secure the commitment of competition agencies around the world to promote procedural fairness.  In May 2019, the fruits of our labor exceeded our every expectations when the Framework on Competition Agency Procedures was adopted with over 70 signatories from competition agencies around the world.  “Adopting the Framework on Competition Agency Procedures is a remarkable and historic achievement for antitrust enforcement,” said Delrahim in announcing the successful conclusion of the negotiations. “It sends a clear signal that competition agencies across the globe – despite differences in their structures and proceedings, as well as the legal systems in which they operate – are committed to procedural fairness.”

I know from personal experience that Delrahim is deeply committed to due process regardless of political persuasion.  This helps explain why he described FDR’s Attorney General Robert Jackson as one of his “personal legal heroes,” and why he created the Robert H. Jackson Room at the Department of Justice because, as the Wall Street Journal reported, Jackson is “the rare figure whose reputation transcends partisanship” and “is venerated as the patron saint of the rule of law.”  As Delrahim said in recent remarks, quoting Jackson’s famous speech on the Federal Prosecutor, “[a]ny prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.”

Having spent countless hours with Delrahim in promoting fundamental due process, it is disheartening in the extreme to witness the false attacks on his character and his commitment to due process by Obama Administration Assistant Attorney General Bill Baer and Baer’s former chief-of-staff, John Elias, whom Delrahim decided not to replace and adopted as his own chief-of-staff, a rare showing of non-partisanship.  On June 24, Elias alleged that the Department of Justice improperly conducted merger analysis of the marijuana industry because of “personal dislike of the industry.”  On the same day, Bill Baer went further in a Washington Post op-ed, arguing that “the whole affair reeks of an effort to use law enforcement to burden an industry [Attorney General] Barr dislikes.”  Their speculation of personal animus as the driving force behind the investigations is in sharp contrast with the official position of the Department’s Office of Professional Responsibility, which concluded that the allegations were without merit.

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