Documents Show FTC and DOJ Influence Over U.S. Trade Policy

On December 11, 2023, the U.S. Chamber of Commerce filed a series of FOIA requests to the Office of the U.S. Trade Representative (USTR). We have been seeking to understand the factors that may have influenced the precedent-breaking decisions made by USTR regarding its sudden withdrawal of support for strong digital trade rules in the WTO, which were based on language in existing U.S. trade agreements. The move also affected the U.S.'s position in digital trade negotiations in the Indo-Pacific Economic Partnership (IPEF).

In January, USTR responded to two of the FOIA requests by producing its visitor logs for the time requested, as well as USTR communications with outside groups Rethink Trade, Open Markets Institute, and Public Citizen.

A summary of USTR’s responses and the related documents can be found here.  

In April, USTR finally responded to two of the remaining FOIA requests, in which the U.S. Chamber requested “all records related to the dates of communications between United States Trade Representative or her staff with the Federal Trade Commission (FTC) or the Antitrust Division of the Department of Justice (DOJ),” from January 1, 2023, to present. The responses are available on this page.

One FOIA request remains unanswered, but we expect to receive FOIA production related to this outstanding request soon.

What We Found

USTR collected 112 pages of communications responsive to the Chamber’s request, of which 66 heavily redacted pages were released. The other pages have been entirely withheld. From what can be seen, the communications cover a range of issues, including event and meeting planning, Indo-Pacific Economic Framework for Prosperity (IPEF) negotiating text, communications strategy, digital trade, and competition policy. There are two major items of note:

• FTC and DOJ Influence Over Trade Policy: Even though roughly half of the Chamber’s requested correspondence has been withheld by USTR and those communications that were released have been heavily redacted, the email traffic between the agencies confirms the influence FTC and DOJ had over USTR negotiating positions in the IPEF’s trade pillar.  

• Getting on the Same Page: In an email from the USTR Chief of Staff to the Chief of Staff at the Department of Justice Antitrust Division on April 17, 2023, there is a discussion of how to respond to a letter transmitted the same day from the U.S. Chamber to the National Security Council and National Economic Council demanding greater oversight of the FTC and DOJ. The exchange between USTR and DOJ suggests the two agencies were not on the same page as the National Security Council. The email stated: “But with NSC Comms also involved we may have this whole fight in miniature, I don't know.” 

Key Findings

Last fall, U.S. antitrust agencies appeared to have scuttled an effort to examine European digital policies that might aid Chinese companies, harm American companies, and undermine both U.S. and European competitiveness.  

The antitrust agencies feared such a conversation and killed plans to seek public input. Here's what we know:

• The European Union and the United States hold a bilateral dialogue called the Trade and Technology Council (TTC) that is led on the U.S. side by State, Commerce, and USTR. For the United States, USTR leads the TTC’s working group focused on Global Trade Challenges.  

• Independent of this FOIA request, the Chamber has been in possession of an April 2023 government document marked “pre-decisional and deliberative.” The document suggests that the TTC Global Trade Challenges Working Group should initiate a digital trade-focused work stream to explore ways in which the U.S. and EU might “work together to counter China’s anticompetitive trade policies and practices.” The document explicitly suggests that public input should be sought to guide this work.    

• By the fall of last year, the Chamber and other trade associations were aware that this work was underway. We were briefed that there would be a Federal Register Notice soliciting public input on these very issues.  

• Mysteriously, the Federal Register Notice was never issued. At the time, private inquiries with multiple sources pointed the finger at the antitrust agencies for killing it.  

• The recent FOIA production from USTR makes clear that the Federal Register Notice did exist and was shared in September with the Antitrust Division of the DOJ.     

• The exchanges, while redacted, appear to support what the Chamber and others were told last year – the antitrust agencies obstructed this work plan, undermining discussions that are in the U.S. national interest.