George W. Bush official spots 'fatal' problem in Trump DOJ probe

A former George W. Bush administration official has pointed to a fatal flaw in President Donald Trump's Justice Department's latest investigation into five television networks that could end up in court, arguing that the White House may have already undermined its case.

William Kovacic, who was appointed by Bush as chairman of the Federal Trade Commission in 2008, told The Washington Post described the DOJ’s legal justification as "feeble."

Kovacic also pointed out how Trump’s public statements about the news organizations are a problem in themselves.

"This will be fatal to the case," Kovacic warned in reference to the president’s statements, which he says help the networks' argument that the investigation is politically motivated.

The Justice Department announced over the weekend that it was investigating ABC, CBS, CNN, Fox News and NBC for possible antitrust violations.

The investigation comes after networks temporarily stopped sharing pooled White House video coverage in September. It was in response to Trump’s White House banning CNN, Politico and MS NOW from White House grounds and stripping the press passes from the journalists.

The administration is describing the move in solidarity with the banned networks as an illegal boycott that could violate federal antitrust law.

However, Kovacic doesn’t believe this argument will hold up in court. He wrote that the networks could use Trump’s repeated attacks on the networks as unfair and “fake news” as proof that the admin was punishing them for their coverage rather than for banning them for legitimate legal reasons.

Other legal experts also backed Kovacic’s assessment. Bill Baer, who oversaw antitrust enforcement under former President Barack Obama’s DOJ, said the investigation “looks like total retaliation.”

Clay Calvert, a senior fellow at the conservative-leaning American Enterprise Institute, also called into question the White House’s legal argument, arguing that: “There’s no boycott over a business activity. It’s a decision not to give him the coverage. They don’t have to cover him in the first place.”

Antitrust expert Diana Moss of the Progressive Policy Institute made a similar argument to Calvet, noting that illegal group boycotts typically involve efforts to restrict competition.

After a federal judge ordered that the ban on networks should be permitted to receive access to the White House, the networks eventually resumed pooled coverage. However, the ban involving Air Force One pool assignments has continued.

The DOJ has defended its position by arguing the boycott was a coordinated effort involving commercial competitors and therefore could be violating the Sherman Act.

A court has yet to determine if the networks violated antitrust laws, and it remains to be seen how the investigation plays out.

In another legal battle, ABC has challenged the Federal Communications Commission review of its broadcast licenses, arguing that the administration is violating its First Amendment rights.