The DOJ Says Five Networks Formed an Illegal Cartel. The Product Was Pointing a Camera at Trump.

The administration banned CNN, the pool walked, a judge called the ban likely unconstitutional. Now the Antitrust Division is investigating the networks for not filming the president.

The Justice Department confirmed Saturday that its Antitrust Division is investigating ABC, CBS, CNN, NBC and Fox News for a possible Sherman Act violation. The conduct under investigation is three weeks in September when the five networks declined to point their shared camera at the president of the United States.

Walk the timeline, because the order of events is the whole story.

On September 18, the White House barred reporters from CNN, MS NOW and Politico, calling their coverage fake news. Credentials were revoked or confiscated. The White House’s official position was that covering the president is a “privilege, not a right.” Then CNN, which was scheduled to carry the television pool for the UN General Assembly trip, disappeared from the pool schedule. The ban had moved beyond the White House gates and into the pool rotation itself.

The television pool is a cost-sharing arrangement older than cable news. When space is tight, one network’s crew films the president and the footage goes to everyone. The five networks take turns. It exists because seventeen camera crews do not fit in the Oval Office, and it works because the rotation is honored no matter whose anchors the president is mad at that week.

On September 21, the pool’s rotating chair, Fox News Washington bureau chief Bryan Boughton, sent members a memo suspending pool coverage of presidential events “effective today,” adding, “There will be no replacement pool put in place.” The five networks said in a joint statement that news organizations “should not be restricted because an administration objects to their reporting.” Fox signed. MAGA called Fox a traitor for it. That afternoon a presidential helipad event ran with no network microphones, and the background noise swallowed his remarks.

The banned outlets sued. On September 24, Judge Timothy Kelly ruled the ban was likely unconstitutional and ordered access restored. The White House reinstated the credentials the same day. The networks had made their point, the court had made its ruling, and the whole episode was settling into history as a three-week standoff the administration lost.

Then, on October 10, the Justice Department announced it is investigating the networks for how they won. A spokesperson explained: “Group boycotts among commercial competitors can violate the Sherman Act,” and the division is “simply investigating to determine whether these news organizations have violated the antitrust laws.”

Set aside, briefly, how that sentence sounds, and take the theory seriously for one paragraph. Group boycotts among competitors can violate the Sherman Act. If the five networks agreed among themselves to refuse to deal with a counterparty for commercial advantage, that is the classic shape of a concerted refusal to deal. The problem is that nothing about September was commercial. The networks gave up access, the thing they compete for, in protest of a government action a federal judge found likely unconstitutional four days later. There was no price fixed, no market divided, no competitor excluded. The “boycotted” party was the government, which is not a competitor of NBC, whatever the president believes about his ratings.

That is why the Washington Post found legal experts calling the probe’s foundation thin. Concerted petitioning of the government, including protest, sits inside the First Amendment, and the Supreme Court has held that politically motivated boycotts aimed at government conduct are protected speech. The five networks did not conspire against a market. They declined, together, to pretend that banning a news outlet from the pool was normal.

The investigation does not need to win to work. An Antitrust Division inquiry means document demands, legal fees, and executives explaining emails to prosecutors, aimed at five companies that all have mergers, licenses and regulatory business pending before this government for the rest of this term. The next time a credential gets pulled, every network general counsel now has a new slide in the deck, and it says the last joint protest drew a federal criminal inquiry. Solidarity was the only thing that made the September protest work. Fox’s participation was the only reason it couldn’t be dismissed as partisan. The probe prices exactly that.

The administration is also investigating the networks while losing to them. The ban was reversed in six days. The pool is back. And the Justice Department’s antitrust lawyers, who did not challenge the last decade of media consolidation with anything like this urgency, have been assigned to find out whether five competitors illegally agreed to stop giving the president free airtime.

He spent the three weeks saying it didn’t bother him: “They said they were going to boycott me, but they never boycott me.” The man who wasn’t worried has now sent the Antitrust Division to find out who signed the memo.