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President Trump says tech giants could be an ‘antitrust situation.’ His Justice Department’s antitrust lawyer isn’t so sure.

Makan Delrahim tells Recode’s Kara Swisher that “these things are very fact-specific.”

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Makan Delrahim, United States Assistant Attorney General for the Antitrust Division Courtesy U.S. Justice Department

In an interview with Bloomberg News this week, President Trump stated that tech giants like Google and Facebook could represent a “very antitrust situation.” It was the latest in a series of claims that those companies are “rigging” their content and insinuations that they’re in “troubled territory.”

In a new interview with Recode Editor at Large Kara Swisher, which will be published in full on the Recode Decode podcast on Saturday, Sept. 1, U.S. Assistant Attorney General for Antitrust Makan Delrahim paints a different picture. Delrahim is a 2017 Trump appointee who led the Justice Department’s attempt to block the AT&T-Time Warner merger and is reportedly in the mix to replace Attorney General Jeff Sessions or outgoing White House counsel Don McGahn.

He told Swisher that the government “need[s] to have the will to be aggressive in a timely fashion,” but that the law is “flexible” and a case must be built on facts.

“You don’t know what will trigger that type of a merger or activity or why or when, if it happens,” he said. “I’ve heard that there’s a lot of talk about Apple buying a content company or that they will grow it organically ... Would that violate the antitrust laws? You know, these things are very fact-specific. Would that violate? And that’s where, if it does, you need to go to court and stop it.”

Asked about European regulators who have called for tech giants to be broken up, he suggested some of that is bluster.

“You know, people get a lot of headlines and attention by calling on antitrust actions or breaking up this company or that company,” Delrahim said. “It happens in the United States. We’ve heard this the last couple years. … I think that we’ve got to do what we’ve got to do and look at cases.”

But more generally, he echoed a shared belief of Presidents Obama and Trump that those regulators may have ulterior motives when confronted with the scale of American tech leaders.

“Are more aggressive enforcers better?” Delrahim asked. “Does that mean that they’re better at antitrust or better for the marketplace? I don’t think so. ... I’m very heartened at the fact that over the years we have had more and more convergence on the principles, and we’ve got to be vigilant and make sure we don’t diverge on the fundamental basics of economics-based antitrust application. We don’t have an international agreement. We don’t have an agreement about how you view this. And one of the more dangerous things, I think, that could happen moving forward is that a country uses the antitrust laws as a weapon, as an economic weapon, against one of our companies in their country.”

The full interview with Delrahim will be posted on our podcast Recode Decode, hosted by Kara Swisher on Saturday, and we’ll also post a transcript of the interview on this site. Subscribe now to Recode Decode on Apple Podcasts, Spotify, Google Podcasts or wherever you get your podcasts.

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