In a move cheered by progressives and antitrust reformers, President Biden has nominated Jonathan Kanter to serve as assistant attorney general for antitrust. Kanter’s nomination, alongside that of Lina Khan to lead the Federal Trade Commission earlier this year, is the latest sign that this administration is, for the first time in generations, fiercely committed to enforcing antitrust laws. However, this generation’s most notorious monopolies—Amazon, Facebook, and Google—are making it vividly clear that they will try anything to retain their power. That apparently includes lobbing poorly reasoned, transparently bad faith calls for their newly anointed foes to recuse themselves from relevant cases.
It’s a classic example of throwing goop at a wall in the hopes that something might stick. What many see as the new antitrust enforcers’ greatest assets—a clear track record thinking deeply about and advocating for antitrust enforcement—tech companies are trying to label as unfair bias and, in Kanter’s case, a “conflict of interest.” Their arguments fail to stand on either the legal merits or on principle.
Let’s start with Kanter. There is no question that Justice Department officials must recuse themselves from cases to which a former client is a party. Kanter, however, represented neither party in the DOJ’s case against Google. On grounds both technical and legal, he is free to participate.
What about on principle? You don’t need to look far to find examples of officials whose conflicts of interest do not violate the letter of (weak) ethics law but, nonetheless, undermine public trust in government. At the Revolving Door Project, we frequently demand conflicted officials do more than the law requires to avoid even the appearance of a conflict. This is necessary when officials’ commitments to the public interest are credibly in doubt—think, for example, of Big Law partners, corporate lobbyists (both registered and shadow), and consultants who have demonstrated their willingness to undermine virtually any legal safeguard, provided that the pay is high enough.
In contrast to such figures, Kanter’s commitment to enforcing antitrust laws more forcefully is not in doubt. His actions—the clients he’s taken on, the cases he’s brought, and, recently, his decision to leave his law firm when asked to drop some of his clients working against Apple and Amazon (who were clients of firm partners Karen Dunn and Bill Isaacson)—demonstrate an enduring commitment to that goal. That is no less true because he made a lot of money while doing it. Unlike the sort of shady characters enumerated above, Kanter will not be switching sides as he assumes his new role in government. Advocacy for stringent enforcement of antitrust law in the private sector complements public sector enforcement, just as experienced civil rights and environmental lawyers are natural picks to enforce civil rights and environmental laws.
That tech companies are reaching for these thin straws becomes even more apparent when looking at Facebook and Amazon’s “case” for FTC Chair Lina Khan’s recusal. Their argument—that Khan’s decade of work reporting on, theorizing, and investigating modern-day monopolies creates a legally impermissible bias—depends on a mix of (likely willful) misapplications of precedent, misunderstandings of the role of commissioner, and astounding leaps of legal reasoning. They can and should be dismissed. The case for Khan’s recusal on principle is similarly nonexistent. There is no credible fear that she will privilege the pursuit of profit for her former employers (all nonprofits, academic institutions, and government entities) over the public interest.
It should surprise no one that tech companies are acting in bad faith. For years, they have recruited antitrust regulators to revolve back and forth between the C-suites of Google, Facebook, and Amazon and the offices of the FTC and DOJ Antitrust Division. The constant side-switching of such hired guns is a much more credible threat to the American public’s interest in “due process.” That they’re spending more time “attempting to bully their regulators” than advocating for any of numerous proposals to strengthen ethics law, as Senators Elizabeth Warren, Cory Booker, and Ron Wyden and Representative Pramila Jayapal observed in a recent letter to Facebook and Amazon, should inspire further skepticism.
Giving in to these demands would not only pose a direct threat to Biden’s antitrust enforcement agenda, it would also set a precedent that could undermine public-minded enforcement of all kinds. Banning those with expertise on the level of a Khan or Kanter would mean narrowing the pool of potential regulators to those so unqualified as to lack opinions about some of the most pressing issues of our time, or those whose experience derives from corporate defense work. To understand why this would be so dire, one need only look at the last several decades of antitrust (non)enforcement.
Acceding to these calls for recusal would also be hypocritical. Multiple senior officials at the Justice Department have real and troubling conflicts of interest stemming from their work trying to undermine public-minded enforcement on corporate America’s behalf. Yet their ability to work on matters involving their former clients is largely unencumbered. Deputy Attorney General Lisa Monaco, for example, has already been involved in numerous matters affecting the financial interests of her former clients, including Apple. Former WilmerHale partner and current Acting Head of the Civil Division Brian Boynton was recently involved in government cases against Oracle and the pharmaceutical company Incyte Corporation, even though WilmerHale had previously represented both companies. Biden’s nominee to lead the Justice Department’s National Security Division, Matt Olsen, will not be restricted from working on matters related to the cybersecurity firm he co-founded, even though it has been awarded multiple federal contracts. The list goes on and on.
Each of these examples demonstrates an overwhelming disinterest in going beyond the letter of the law to manage troubling conflicts of interest. To do so in Kanter and Khan’s cases—where it is wholly uncalled for—would be the latest indication of a tilt toward corporate interests.
On the campaign trail, President Biden promised to go after corporate tech monopolies. While appointing people like Khan and Kanter to prominent antitrust positions is a positive step, it will remain a promise unfulfilled if they lack the authority they need to do their jobs. That’s exactly what the Big Tech giants are hoping Biden will do.