• Unitary executive theory is law of the land within agencies
• Trump ‘considered and referred to’ as Chief Legal Officer
• DOJ staff interpret social media posts as executive orders

The Trump 2.0 administration is driven by a desire to transform the unitary executive theory vesting sole authority in the president into a governing reality.

This endeavor has consequences throughout the federal apparatus. Importantly, executive control and influence over merger enforcement is one of the clearest government activities impacted by the theory and practice of the unitary executive.

In early 2025, the administration swung plans into action to overturn Humphrey’s Executor, a 90-year-old legal doctrine that limited the president’s powers over agencies created by Congress.

If the Supreme Court’s majority stay granted to the administration in Trump vs Wilcox is anything to go by, a firm ruling substantially curtailing Humphrey’s is on the cards when the bench issues its decision on Trump vs Slaughter in the coming weeks.

Assuming that holds, the legacy of technocratic and sober investigation conducted by rigorous, independent agencies will have been upended, with decisions instead the purview of the whims of one man, circled by lobbyists.

Indeed, Andrew Ferguson as chair of the Federal Trade Commission (FTC) – previously considered an independent agency, held at arm’s length from the White House – apparently cannot stop referring to his institution without insisting it is “the TrumpVance” FTC.

In word and deed, he has toed the line – as this column has referenced repeatedly.

And newly appointed Attorney General Todd Blanche – who was once President Donald Trump’s personal attorney – has said it is the president’s “right and duty to direct investigations” at the Department of Justice (DOJ) and something that “should make every American happy.”

When asked what he would do should Trump ask him to step aside – somewhat akin to the events that led to Humphrey’s Executor – Blanche responded that he would say “thank you very much, I love you, sir.”

This level of control, and how it has been administered, is shaking long-held norms established by Humphrey’s and expanded in the post-Watergate era.

How this all applies in practice has been something of a mystery for the merger enforcement universe, which has been awash in rumors of lobbyist influence and dramatic infighting.

Is Trump calling his bureaucrats and explicitly directing the outcomes of investigations? Is he doing so through anointed proxy lobbyists? Are his enforcers merely intuiting what they believe will placate the man?

A recent conversation between Hell or High Water and a source familiar with the DOJ sheds some light on those questions, revealing that the method, if not the theory, behind Trump’s control can be as banal as one might imagine.

“When Trump tweets, people at the DOJ interpret that as an executive order,” the source said.

Officials went pencils down in the TEGNA/Nexstar merger investigation following Trump’s Truth Social post that ended “GET THAT DEAL DONE! PRESIDENT DJT”.

In that matter, such a reaction from federal enforcers was crucial.

The preliminary injunction on the deal notes that despite the high market shares held by the companies and a second request for more information in November, the merger was swiftly cleared with an early termination notice following Trump’s intervention.

So the parties were able to rapidly close their merger before state level enforcers could secure a restraining order. States have proceeded in their efforts to stymie the deal, and the judge hearing the case has all but called the merger illegal.

But the choreography of it all, and the jump-when-I-say-jump timing, was almost determinative for the merger, and tells us much about how the executive branch is functioning under this president.

Trump is “considered and referred to as the Chief Legal Officer” and is seen to have supreme authority over all aspects of the executive branch, according to the source.

This is an erosion of the checks and balances put in place to limit the imperial presidency following the Watergate scandal.

“When the president does it, that means that it is not illegal,” Richard Nixon famously told David Frost after his resignation from office. That was his doctrine.

For Trump, that perhaps could be reformulated as: when the president Truths it, that means it is legal. And taken as a firm executive directive by agency officials.

Dealmakers must continue keeping a close eye on Trump’s statements and social media, as we acknowledged recently.

Apparently, the destruction of our institutions will be televised, or at least posted.

Hell or High Water is a weekly column that offers commentary from our editorial team on the main deals undergoing regulatory reviews as well as the broader enforcement environment. The opinions expressed here are those of the writer only.