Google has asked the Department of Justice for the newly confirmed head of antitrust, Jonathan Kanter, to recuse himself from the agency’s antitrust lawsuit against the company due to his past work for companies opposing the tech giant and his own statements critical of its practices.
Google’s push to sideline Kanter is part of a broader effort by the largest digital platform companies to fight back against President Joe Biden’s appointment of a new generation of antitrust enforcers who are highly critical of Big Tech companies and the longtime legal consensus on antitrust.
Kanter, an antitrust attorney, was confirmed by the Senate in a bipartisan vote of 68-29 on Nov. 16 to lead DOJ’s antitrust division. His confirmation completed Biden’s overhaul of the nation’s antitrust regulatory enforcement offices, joining Lina Khan as chair of the Federal Trade Commission and Tim Wu on the National Economic Council as an advisor on technology and competition policy.
These three appointees are critics of the longtime antitrust legal consensus favoring the protection of consumers from the impacts of anticompetitive behavior over harms caused to small businesses, workers or competitors. They have also been public critics of the dominant market position of digital platform giants like Amazon, Google and Facebook. Those tech giants are trying to use that past criticism to force both Kanter and Khan to recuse themselves from antitrust enforcement efforts. Whether or not they succeed may not be the point.
“I don’t think this is actually about achieving a big win,” said Jeff Hauser, a supporter of Kanter’s nomination and the director of the Revolving Door Project, a project of the nonprofit Center for Economic and Policy Research, which scrutinizes executive branch nominees for conflicts of interest. “I think it is about trying to create controversy around Kanter and about trying to make him appear problematic because they’re losing the public relations battle.”
Kanter signed a letter agreeing to consult with ethics officials to resolve any conflicts of interest, a normal practice for all executive branch appointees. According to DOJ rules, agency designees are in charge of making formal declarations on ethics questions, including decisions on recusal or issuing a waiver from conflict of interest rules. The agency designee in charge of making formal declarations on ethics questions for the Antitrust Division is Associate Attorney General Vanita Gupta, according to DOJ rules. If Gupta chooses to forego that role, the designated agency ethics officer, Assistant Attorney General for Administration Lee Lofthus, would likely be the official in charge of issuing a formal declaration on Kanter’s recusal.
Government ethics rules may require an official’s recusal from matters where they or their former employer had a covered relationship — representing a client or working for a company — in the past year with a party to a case that comes before that official. An executive order issued earlier this year by Biden extended that “cooling off” period to two years.
For example, Makan Delrahim, who held Kanter’s position under former President Donald Trump, recused himself from the division’s investigation into Google due to his previous work lobbying in support of Google’s purchase of the ad tech platform DoubleClick.
Kanter led the antitrust practice for the law firm Paul, Weiss, Rifkind, Wharton & Garrison until he left to form his own private practice in 2020. He and the firm represented a broad range of corporations, including those like Yelp and ANGI Homeservices that sued Google for biasing search by steering users toward Google-run pages and away from their websites and Microsoft, a longtime Google competitor. Yelp is mentioned in the U.S. case against Google and Google has filed document requests for communications from Yelp executives in the case, but Yelp is not a party to the case.
Ethics rules could also require an official’s recusal based on the more subjective standard that a reasonable person could find that the official’s impartiality could be questioned.
Google’s letter questions Kanter’s impartiality by noting his public criticism of the company’s practices it is being sued over and his work for rival companies that advocated the Justice Department bring an antitrust suit against Google.
But these allegations of impartiality appear to turn ethics rules on their head. Ethics rules aim to protect the government’s interest from private conflicts of interest or the appearance of a private conflict of interest. Kanter’s alleged conflict of interest is that he supports the government’s interest in bringing an antitrust case against Google. He did not work previously for Google, as Delrahim did.
“He’s not switching sides,” Hauser said. “Normally you go from defending the polluter and then you’re going to the EPA.”
Even if DOJ officials believe that there could be an appearance of a conflict of interest for Kanter, they could issue a waiver for him to participate if it served a vital government interest. That seems likely considering that Kanter was appointed to fulfill Biden’s executive order calling for an overhaul of federal antitrust law with a focus on alleged monopolistic practices by Big Tech firms.
It is not abnormal for officials to receive ethics waivers. In 2016, three DOJ officials, including Gupta, then serving as the head of the Civil Rights Division, received waivers to work on litigation in which their prior clients were party to the case. Two current Biden administration DOJ officials, Gupta and Solicitor General Elizabeth Prelogar, received ethics waivers to serve in their current positions.
Kanter is not the only regulator that Big Tech is looking to sideline. Facebook and Amazon both sent letters in July demanding Khan’s recusal from antitrust enforcement matters related to the companies at the FTC. The two companies allege that her past criticism of their business practices and work investigating their alleged monopolistic practices as an aide for the House Subcommittee on Antitrust presents “unfairness and the appearance of unfairness.” Khan noted in her confirmation hearing that she had no “financial conflicts or personal ties that are the basis for recusal under federal ethics laws.” The FTC is investigating Amazon for anticompetitive practices and is suing in court to break up Facebook.
Khan’s potential recusal would be more consequential than Kanter’s because the FTC is a five-member board with three Democratic appointees and two Republicans. The loss of Khan’s vote could be significant while the work of the DOJ Antitrust division will align with Kanter’s prerogatives whether he is forced to recuse from one case or not.
So far, the push for Khan’s recusal has gone nowhere. The same could wind up true for Google’s demand that Kanter recuse. But these recusal requests are just the opening volley of a war big business is planning against Biden’s regulators.