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No, the DOJ is suppose to enforce the law. The law says you cannot collude.
Note: It wasn't BN who went to the Publishers to try and collude. BN was playing the game by the rules as established. It was Apple who went to the Publishers. They went to the Publishers because they did not want to be undersold and did not want to have to worry about setting prices themselves. Recently, Apple has said that it might leave the E-book business if there is a return to the wholesaler pricing because it does not want to be involved in that.
Either BN knew it would be illegal to set up a deal with the Publishers that would make BN the MFN and would increase e-book prices so they did not do that or BN was ok with competing under the existing rules. One way or the other, it took Apple stepping in with IBooks in 2010 to make this move. The Publishers were desperate enough to go for Apple's idea.
DOJ is enforcing the law. That is what they do. Apple and the BPH breaking the law to benefit Apple as being ok because it had the side benefit of helping BN does not make their actions legal. They can try this argument out to win a PR war, and it appears some folks are buying it, but it still does not get around the fact that they broke the law.
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