It's time for Biden to stand up to Big Tech

It's time for Biden to stand up to Big Tech

Ben Clements, Chairman and Senior Legal Advisor at Free Speech for People, look into Google's insistence that Jonathan Kanter, recently confirmed Assistant Attorney General for Antitrust, recuse himself from investigating Google's anti-competitive conduct...

Antitrust attorney Jonathan Kanter was recently confirmed by the Senate to fill the position of Assistant Attorney General for the Department of Justice Antitrust Division. Google, a company with a history of anti-competitive conduct that has run afoul of state, federal, and international regulators, promptly requested Kanter recuse himself from the Justice Department's investigation and litigation against Google, based on Kanter's statements in the past criticizing and taking action against Google's anti-competitive behaviour. Kanter has the necessary background to lead antitrust actions against Google, and the government ethics law does not require him to be disqualified from serving as an antitrust official. It is an obvious attempt to evade regulatory oversight that Google is requesting recusal and it should be rejected.

The government ethics regulations stipulate three reasons to recuse an official: a personal conflict of interest; a relationship with another party to the case (for example, a former employer) that might raise suspicions of a conflict; or other factors that might cause a reasonable person to question the official's impartiality.

Two of the three are clearly irrelevant. Google has neither suggested that Kanter (or any of his family members, business partners, or organizations he represents) has some kind of financial interest in the Antitrust Division's case against Google nor suggested that he might have such interest given his no prior association with either the United States or Google.

Rather, Google argues that, in view of the circumstances that would make reasonable persons question Kanter's impartiality, the catch-all provision should be invoked. Google bases this reasoning on Kanter's history of public criticism of Google's monopolistic practices, in addition to his work in the private sector representing companies whose interests have been adversely affected by Google's practices and advocating government action against Google. Google claims Kanter should not oversee the government's lawsuit against Google because Kanter's former clients may benefit from the suite - overlooking the fact that most Americans and countless businesses benefit from antitrust enforcement against Google.

Google argues that the antitrust attorney's past legal actions and criticism of a powerful global monopoly disqualify him from representing the government's interests against that monopoly, which disqualifies the most obvious candidates for the job. If recusals were required here, it would set an alarming precedent by opening up the door for corporations to disqualify any number of qualified advocates from serving in high-ranking positions at the Justice Department. When the head of the Environment and Natural Resources Division had previously criticized or sued Chevron for pollution, would he have to step back from a case involving an oil spill from a Chevron pipeline? As an Assistant Attorney General for civil rights with experience combating voter suppression efforts, would she be required to recuse herself from a case regarding an ongoing effort to restrict voting rights in that state?

The goal of Google's request is to usurp the policy authority of the President, the United States Senate and the American people, by reining in the monopolies of giant tech companies. However, Google's request is plagued with an even bigger issue: it asks Justice Department officials to usurp the policy powers of the President, the Senate and the American people. Kanter's experience and expertise in challenging Google and other Big Tech companies did not dissuade and prevent the President and the Senate from nominating and confirming Kanter to lead the Antitrust Division.

On the contrary, his experience and expertise have led to him being promoted to this position. The Senate's antitrust subcommittee chair, Senator Amy Klobuchar, observed that Kanter is an ideal choice for keeping the Antitrust Division under his watch, due to his "deep legal experience and aggressive advocacy record." If ethics officials conclude that his experience and expertise make him qualified to serve in this role simultaneously render him ineligible to participate in the Division's most consequential and important cases, it would violate our elected officials' wishes and undermine the government's ability to effectively enforce antitrust laws.

Ethics regulations acknowledge this fact in their own texts and don't intend to interfere with the government's or public's interests in enforcing the law. In particular, the regulations stipulate that even if an official's participation in a matter exists a conflict of interest, the government's interest in the employee's participation outweighs the concern that a reasonable employee would question the integrity of the agency's programs and operations.

Kanter would benefit from a waiver authorizing him to participate in the case even if there were a reasonable question as to his impartiality in United States v. Google. It appears that the government is interested in Kanter's involvement in an important case, such as United States v. Google, as demonstrated by President Biden's nomination of Kanter and the Senate's overwhelming confirmation vote of him.

In the past, the Department has frequently allowed officials to participate in cases in which their impartiality was questioned despite having no "covered relationship." For instance, Vanita Gupta and Matthew Axelrod of the Civil Rights Division, as well as Counselor Bryan Boynton of the Attorney General's Office, each received waivers allowing them to work on cases in which their former employers were representing parties. This time around, Kanter is less of an issue because the case for his recusal is far weaker and the government is just as interested in his participation as it was in the previous cases.

One of the largest sectors of the American economy must be protected from being controlled by a few big tech corporations under the Biden administration. As Kanter's expertise in antitrust and the tech sector, in particular, will prove vital in holding today's monopolies accountable, like Google, the Antitrust Division will now be able to effectively enforce antitrust law. Kanter's recusal from testimony should not be considered by the Department of Justice based on Google's baseless and self-serving request.

Ben Clements is a lawyer, author and advocate for political and governmental reforms. He is currently the deputy chairman and senior legal adviser at Free Speech for People, a non-profit organization dedicated to democracy and combating corruption and corporate abuses.