Cotton, colleagues to DOJ and FTC: Systemic, weaponized leaks violate ethics rules

Washington, D.C. — Senator Tom Cotton (R-Arkansas) today led four of his colleagues in a letter to Department of Justice Inspector General Michael Horowitz and Federal Trade Commissioner Inspector General Andrew Katsaros, demanding an investigation into systemic media leaks. These leaks, all to the same media outlet, resulted in negative headlines about the Biden-Harris administration’s antitrust targets and potentially violated ethics rules.

Co-signers to the letter included Senate Republican Leader Mitch McConnell (R-Kentucky), Senators Thom Tillis (R-North Carolina), Bill Cassidy (R-Louisiana), and Pete Ricketts (R-Nebraska). 

In part, the senators wrote:

“These leaks result in negative headlines about the administration’s targets while the targeted companies have no way to respond, as they haven’t yet seen the potential lawsuits. Both DOJ and FTC have ethics rules that prohibit leaking civil cases before the cases are filed.”

Full text of the letter may be found here and below.

October 24, 2024

The Honorable Michael Horowitz 
United States Department of Justice
Office of the Inspector General
950 Pennsylvania Avenue, NW
Washington, DC 20530

Mr. Andrew Katsaros Inspector General
Federal Trade Commission 

600 Pennsylvania Avenue, NW

Washington, DC 20580

Dear Inspectors General Horowitz and Katsaros,

We write asking you to investigate whether the Department of Justice and the Federal Trade Commission have violated their own ethics rules by systematically leaking potential antitrust cases to a specific media outlet.

Since 2023, Bloomberg News has broken the news in at least twelve instances that DOJ or FTC was “preparing” or “poised” to take legal action before a lawsuit was filed. Indeed, the same journalist reported on eleven of these cases. This pattern strongly suggests that certain officials at DOJ and FTC are intentionally publicizing legal action days or weeks before filing. 

These leaks result in negative headlines about the administration’s targets while the targeted companies have no way to respond, as they haven’t yet seen the potential lawsuits. Both DOJ and FTC have ethics rules that prohibit leaking civil cases before the cases are filed.[*]

Bloomberg News reporting DOJ and FTC antitrust actions before the filing of a lawsuit

1. January 23, 2023: DOJ Poised to Sue Google Over Digital Ad Market Dominance

2. February 23, 2023: DOJ Preps Antitrust Suit to Block Adobe’s $20 Billion Figma Deal

3. May 15, 2023: Amgen’s $28 Billion Horizon Deal Faces Unexpected FTC Hurdle

4. June 29, 2023: Lina Khan Is Coming for Amazon, Armed With an FTC Antitrust Suit

5. October 16, 2023: Real Estate Brokers Pocketing Up to 6% in Fees Draw Antitrust Scrutiny

6. February 20, 2024: FTC, States to Sue Over Kroger-Albertsons Deal Next Week

7. March 20, 2024: Justice Department to Sue Apple for Antitrust Violations

8. April 10, 2024: Nippon Steel Bid to Buy US Steel Gets Extended Antitrust Review

9. April 17, 2024: Tapestry’s $8.5 Billion Capri Deal Faces Planned FTC Lawsuit

10. May 22, 2024: US Justice Department to Seek Breakup of Live Nation-Ticketmaster

11. July 10, 2024: FTC Preparing Suit Against Drug Middlemen Over Insulin Rebates

12. September 23, 2024: Visa Faces Justice Department Antitrust Case on Debit Cards

These leaks aren’t just unethical, but they harm these companies’ employees, shareholders, and others. If the companies have engaged in wrongdoing, by all means the government should try them in a court of law. But the Biden-Harris administration shouldn’t try them in the liberal media. These leaks appear to be simply one more instance of this administration weaponizing the administrative state against politically disfavored opponents and critics, much like DOJ investigating parents at school-board meetings or the FTC targeting Elon Musk and Twitter for insufficient censorship of conservatives.

We urge you to investigate promptly these systematic, unethical, and potentially illegal leaks.

Sincerely,                           

Boozman, Cramer, Capito and colleagues file bicameral amicus brief to overturn FHWA’s unlawful rmissions rule

WASHINGTON – U.S. Senators John Boozman (R-AR), Kevin Cramer (R-ND) and Committee on Environment and Public Works Ranking Member Shelley Moore Capito (R-WV) led 27 of their colleagues in filing a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit opposing a final rule from the Federal Highway Administration (FHWA) that requires state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets for those GHG emissions. The brief requests that the Court uphold the April 2024, U.S. District Court decision finding that Congress did not grant the FHWA the authority to issue the rule.

The brief argues Congress explicitly debated providing the FHWA the necessary authority to issue this rule, but decided against doing so in the Infrastructure Investment and Jobs Act. The FHWA then intentionally misconstrued congressional intent and used unrelated statutory authorities to attempt to justify issuing its GHG performance measure rule. The lawmakers also contend the rulemaking is inconsistent with recent Supreme Court decisions paring back executive branch overreach, and that FHWA is ignoring principles of federalism at the expense of state governments to further its own policy agenda.

“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” the members argued. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.” 

“Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized. And it did so both at the expense of separation of powers and in violation of the Administrative Procedure Act,” the members continued. 

Senate Republican Leader Mitch McConnell (R-KY) and Senators John Barrasso (R-WY), Mike Braun (R-IN), Katie Britt (R-AL), Ted Cruz (R-TX), Mike Crapo (R-ID), Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall, M.D. (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds (R-SD), Marco Rubio (R-FL), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Tommy Tuberville (R-AL) and Roger Wicker (R-MS) – as well as U.S. Representatives Sam Graves (R-MO-06), Chairman of the Transportation and Infrastructure Committee, and Rick Crawford (R-AR-01), Chairman of the Highways and Transit Subcommittee – also cosigned the brief. 

Full text of the amicus brief is available here.

Background:

Shortly after the rule was finalized, 21 state attorneys general, including Arkansas, filed litigation challenging the regulation. The U.S. District Court found the Biden administration rule to be illegal, but FHWA appealed the decision to the Sixth Circuit Court of Appeals and it remains under further consideration. 

In April of this year, the U.S. Senate approved a Congressional Review Act (CRA) joint resolution of disapproval overturning the rule by a vote of 53-47. The bipartisan measure was led by Cramer and cosponsored by Boozman, Ranking Member Capito and dozens of their colleagues.

Boozman, Graham introduce resolution condemning action by Biden Administration to withhold weapons for Israel

WASHINGTON – U.S. Senator John Boozman (R-AR) joined Senator Lindsey Graham (R-SC) and 46 Republican senators to introduce a resolution that condemns any action by the Biden administration to withhold or restrict ammunition or weapons for Israel.

“Israel is an American ally and we have a commitment to help our partner defend itself against Hamas terrorists and Iran and its proxies. President Biden’s decision to withhold critical weapons for Israel goes against our long-standing promise and makes it more difficult to rescue American hostages. His administration must unmistakably stand with Israel and deliver the resources it needs to successfully protect its interests,” Boozman said.

The resolution:

• Condemns any decision by the Biden administration to halt the shipment of United States-made ammunition and weapons to the State of Israel;

• Demands the Biden administration continue to fulfill the military aid requests from the State of Israel in order to provide the weapons needed to defeat Hamas and defend against attacks from the Islamic Republic of Iran and its proxies;

• Reaffirms the importance of the long history of the United States providing military aid to the State of Israel and willingness to expedite delivery of such aid in times of crisis; and

• Upholds the commitment of the United States to the State of Israel’s security and long-term prosperity.

The resolution is also cosponsored by Republican Leader Mitch McConnell (R-KY) and U.S. Senators Katie Britt (R-AL), Ted Budd (R-NC), Susan Collins (R-ME), Tom Cotton (R-AR), Ted Cruz (R-TX), Joni Ernst (R-IA), Roger Marshall, M.D. (R-KS), Markwayne Mullin (R-OK), Jim Risch (R-ID), Marco Rubio (R-FL),  John Thune (R-SD), John Barrasso (R-WY), Marsha Blackburn (R-TN), Mike Braun (R-IN), Shelley Moore Capito (R-WV), Bill Cassidy, M.D. (R-LA), John Cornyn (R-TX), Kevin Cramer (R-ND), Mike Crapo (R-ID), Steve Daines (R-MT), Deb Fischer (R-NE), Chuck Grassley (R-IA), Bill Hagerty (R-TN), Josh Hawley (R-MO), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Ron Johnson (R-WI), John Kennedy (R-LA), James Lankford (R-OK), Mike Lee (R-UT), Cynthia Lummis (R-WY), Jerry Moran (R-KS), Lisa Murkowski (R-AK), Pete Ricketts (R-NE), Mitt Romney (R-UT), Mike Rounds (R-SD), Eric Schmitt (R-MO), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), Thom Tillis (R-NC), Tommy Tuberville (R-AL), J.D. Vance (R-OH), Roger Wicker (R-MS) and Todd Young (R-IN).

Boozman, McConnell, colleagues push back on EPA’s regulatory overkill

WASHINGTON – U.S. Senator John Boozman (R-AR) joined Republican Leader Mitch McConnell (R-KY) in introducing legislation to block the Environmental Protection Agency (EPA) from enforcing a new rule tightening fine particulate matter (PM2.5) standards, which would further halt the growth of America’s manufacturing industry. Boozman, McConnell and 44 other Senate Republicans have filed a Congressional Review Act (CRA) resolution to prevent the EPA from implementing this new mandate. 

The Biden administration’s EPA is tightening PM2.5 emissions for the first time in a decade, despite its own data reporting that concentrations have fallen by over 40 percent since 2000. Additionally, the vast majority of PM2.5 emissions come from sources like wildfires and dust from agriculture and roads that are not easily contained and – in some cases – impossible to control.

“Under this administration, the EPA has yet to find a burdensome regulation it didn’t embrace. Crippling the economy in countless rural communities despite evidence that current standards are delivering on cleaner air is absurd, will cost Americans’ jobs and drive up costs. I’m proud to join Leader McConnell and our colleagues to prevent this regulatory overkill from taking effect,” Boozman said.

“The Biden administration rolled out yet another job-killing mandate that would impose more unilateral economic pain at home. This one goes well beyond the regulatory standards of most European allies, let alone our top strategic competitor, China. The EPA’s new standard is so strict that upon its effect, 30 percent of U.S. counties, including many in my home state of Kentucky, would immediately find themselves out of compliance, grounding manufacturing growth to a halt. In order to keep up with President Biden’s new mandate, American manufacturers would be forced to import raw materials, like concrete and steel, for virtually any construction project. The kind of projects that grow our economy and supply good-paying jobs,” said McConnell.

Wildfires, road dust and other hard to control non-point sources now make up 84 percent of particulate matter, leaving states few options when trying to comply with EPA’s needlessly stringent new standards. Nearly 20 percent of counties in the U.S. could fail to meet the standard, resulting in permitting gridlock that threatens new infrastructure projects, expanded manufacturing and the economic growth that creates well-paying jobs. On top of that, counties with particulate matter levels just below the standards would also face restrictions on development. That’s why the U.S. Chamber supports Leader McConnell’s Congressional Review Act resolution of disapproval,” said Chad Whiteman, Vice President of Environmental and Regulatory Affairs of the U.S. Chamber of Commerce.

Boozman, a member of the Senate Environment and Public Works Committee, and other senators wrote EPA Administrator Michael Regan to urge the agency to rescind the proposed rule last September.

A CRA resolution is a tool used by Congress to eliminate onerous regulations imposed by the executive branch through an expedited procedure for consideration in the Senate. A joint resolution of disapproval under the CRA is afforded special privileges that bypass normal Senate rules and allow for a vote on the Senate floor. When a CRA resolution is approved by a simple majority in both chambers of Congress and signed by the president—or if Congress successfully overrides a presidential veto—the rule is invalidated.

Joining Boozman and McConnell on the CRA resolution are Senators John Barrasso (R-WY), Marsha Blackburn (R-TN), Mike Braun (R-IN), Katie Britt (R-AL), Tedd Budd (R-NC), Shelley Moore Capito (R-WV), Bill Cassidy, M.D. (R-LA), Susan Collins (R-ME), John Cornyn (R-TX), Tom Cotton (R-AR), Kevin Cramer (R-ND), Mike Crapo (R-ID), Ted Cruz (R-TX), Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), Lindsey Graham (R-SC), Chuck Grassley (R-IA), Bill Hagerty (R-TN), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Ron Johnson (R-WI), John Kennedy (R-LA), James Lankford (R-OK), Mike Lee (R-UT), Cynthia Lummis (R-WY), Roger Marshall, M.D. (R-KS), Jerry Moran (R-KS), Markwayne Mullin (R-OK), Lisa Murkowski (R-AK), Rand Paul (R-KY), Pete Ricketts (R-NE), Jim Risch (R-ID), Mitt Romney (R-UT), Mike Rounds (R-SD), Eric Schmitt (R-MO), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Thom Tillis (R-NC), Tommy Tuberville (R-AL), Roger Wicker (R-MS) and Todd Young (R-IN).

Click here for text of the CRA resolution.