President Joe Biden’s search for the Justice Department’s top trust-busting role is being bogged down by ethics concerns, both about candidates who have represented Silicon Valley’s giants and those who have represented critics of the big tech companies.
The debate is now imperiling the prospects for the favorite candidate of progressives who are eager to rein in the power of Silicon Valley.
Specifically, White House ethics officials are raising objections about DOJ antitrust candidates who have represented critics of big tech companies like Google, Facebook or Apple, people familiar with the deliberations told POLITICO. Those concerns prompted one prime candidate for the department’s top antitrust role to pull herself out of the running, the people said. And they would also pose a major obstacle to Biden hiring Jonathan Kanter, a progressive favorite who has represented many clients with complaints about Google.
At the very least, the ethics standards as interpreted by the Biden team would force Kanter to recuse himself from the antitrust suit that DOJ filed against Google in October, the people said. The Trump administration took a more lenient approach, hiring top DOJ antitrust officials from law firms who represent Google complainers.
Biden already faces pressure from the left not to hire lawyers who have worked for major Silicon Valley companies — another restriction that is putting the White House in a bind as it tries to find an assistant attorney general for antitrust.
Jeff Hauser of the Revolving Door Project, a unit of the nonprofit Center for Economic and Policy Research that scrutinizes the background of executive branch officials, called it “ridiculous” to impose a blanket restriction on candidates who represented those with complaints against Google.
“Google, at some level, is kind of like Roe v. Wade for a Supreme Court nominee,” said Hauser, referring to the seminal decision allowing access to abortion. “It’s implausible that you lack an opinion on the matter.”
Antitrust relies on private parties and plaintiffs to help enforce the law, said Hauser, who worked at the DOJ’s antitrust division early in his career. The Google case involves “a massive monopoly that is economy-wide in its implications. What businesses don’t have interests one way or the other with respect to Google?”
The ethics questions have already knocked out Terrell McSweeny, a former Biden aide and former Federal Trade Commission member seen as a centrist on tech issues, who had been considered a favorite for the DOJ role. She removed herself from consideration after White House ethics advisers said her work for companies that complained about Google would require her recusal from the antitrust case against the search giant, three people familiar with the situation said.
McSweeny’s law firm, Covington & Burling, also frequently represents Facebook. That would have hampered her involvement in DOJ’s antitrust oversight of the social network, because of ethics rules prohibiting Biden appointees from work involving their former employers for two years.
Similar questions would face Kanter, who represents multiple complainants involved in the Google antitrust probe as well as companies that have raised antitrust concerns to the Justice Department about Apple.
Kanter, who opened his own law firm in September, previously worked for a firm that represents Mastercard, Uber and Amazon on antitrust issues — likely requiring him to recuse himself from any DOJ cases involving those companies as well.
The other major candidate for DOJ antitrust chief, former Obama administration lawyer Jonathan Sallet, would face fewer ethics obstacles — despite working for the state of Colorado and a multistate coalition of attorneys general on a parallel antitrust case filed against Google in December. That’s because the ethics officials view the states as sovereign entities rather than parties soliciting action from the Justice Department, the people familiar with the situation said. They all spoke on condition of anonymity to discuss internal administration deliberations.
Sallet is not without his detractors, despite getting praise from Nebraska’s Republican attorney general, Doug Peterson, for shepherding the states’ case on Google search. Others in both Republican and Democratic attorneys general offices remain resentful over bruising internal fights last summer concerning whether states should join the Justice Department’s antitrust suit if it was filed before Election Day, two people involved in the coalition said. Sallet was a key player in persuading most states to stay out of the Trump administration’s case. He also served as the primary author of the states’ complaint, a role where he was the arbiter on which allegations made the cut and which didn’t.
After POLITICO reported that Sallet was under consideration for a top antitrust post, Kanter’s supporters have continued to agitate for him as a potentially “transformational” figure for antitrust. The progressive nonprofit American Prospect called the choice between Sallet and Kanter one between “good and great.”
Earlier in the process, the White House also considered Richard Parker, a partner at Gibson Dunn & Crutcher, and Stanford Law School’s Doug Melamed for the top DOJ role, three people with knowledge of the discussions said. Parker led the FTC’s Bureau of Competition during the Bill Clinton administration and was rumored to be under consideration to run the agency if Hillary Clinton won the election in 2016. Melamed previously worked at the DOJ’s antitrust division, where he was involved in its yearslong antitrust suit against Microsoft. He later served as Intel’s general counsel before moving to academia.
However, Parker represents Amazon as well as companies that have complained about Google. His law firm has also long represented Apple on antitrust issues, probably making the conflicts insurmountable.
Kanter would need several waivers to take the job.
Justice Department ethics rules require officials to avoid the appearance of loss of impartiality, though more senior DOJ officials can waive the need for an individual’s recusal if their participation outweighs concerns that the department’s integrity would be questioned.
Likewise, the Biden administration’s ethics pledge requires an individual to refrain from participating in any matter involving his or her former employer or clients for two years. That restriction can also be waived if it is in “the public interest.”
Neither is impossible. In the early 2000s, Parker obtained a waiver to represent the FTC in its case against Intel, even though his former law firm, O’Melveny & Myers, represented chipmaker Advanced Micro Devices, the main complainant in the case. (Incidentally, one of the main O’Melveny & Myers lawyers representing AMD was Sallet.)
But it remains unclear whether the White House is willing to go to the mat for Kanter when candidates with fewer conflicts remain a possibility.
In a virtual interview with POLITICO’s Playbook on Thursday, White House chief of staff Ron Klain declined to comment on Sallet’s potential candidacy for the assistant attorney general role.
“We’re going to run through the process,” Klain said. “We need to tackle some of the ‘bigness’ in our country and we need to make sure that we have a system that is working for the middle class and consumers.”