Google's Fight Against Antitrust Hits a Roadblock

[Celerity]

https://prospect.org/power/2023-09-26-googles-fight-against-antitrust-hits-roadblock/



For decades, Google has dominated the internet search business nearly unchallenged while deploying anti-competitive and arguably illegal practices to maintain its stronghold. So it was no surprise that when President Biden appointed antitrust enforcers to put an end to it, Google immediately began a campaign to do everything possible to protect its monopoly, starting with discrediting the enforcers. Leading the charge against Google was Jonathan Kanter, the assistant attorney general for the Department of Justice’s Antitrust Division. In response, Google attempted to disqualify him from investigating and suing the tech giant. But recently, those efforts were dismissed outright in U.S. District Court. Kanter’s confirmation as assistant attorney general for the Department of Justice’s Antitrust Division was a significant step forward for antitrust enforcement. Kanter spent most of his career in plaintiff-side private practice focused on encouraging antitrust enforcement. This doesn’t please Big Tech, which argues that Kanter should be recused from antitrust enforcement because his pre-government work focused on holding monopolies like Google accountable.

While it is clear why DOJ officials must recuse themselves from cases in which their former client is a defendant, it makes no sense to force an official to recuse himself based on work advocating for stringent enforcement of the law. If we want committed civil rights and environmental advocates to run the Justice Department’s divisions tasked with enforcing those areas of the law, shouldn’t we also want someone committed to antitrust enforcement to run the Antitrust Division? Would an attorney who represented one set of plaintiffs against pollution against Exxon be barred from regulating Exxon as head of the DOJ’s Environment and Natural Resources Division? As Harvard Law professor Laurence Tribe explained: “The only substantial effect of Kanter’s recusal now would be to deny the DOJ access to his insights and years of expertise in prosecuting this case. It’s not hard to see why a company might want that.” It goes without saying that if a former Google official were in Kanter’s position now, the company would have no objections about his or her impartiality.



Indeed, at the same time that Google was seeking to disqualify Kanter, the company had no problem taking advantage of the expertise of a slew of former government officials. In fact, Google has at least a dozen former high-ranking DOJ officials on retainer, spread out across multiple elite law firms. That’s in addition to at least five members of its in-house legal team who previously worked at the DOJ. (This includes individuals like Jack Mellyn, who joined Google in November 2022 and previously served as the DOJ’s attorney adviser for competition policy and advocacy, and Kevin Yingling, who has been with Google since 2009 and previously was a trial attorney at the DOJ.) In one notable example, Google hired John Carlin, the former right-hand man of Deputy Attorney General Lisa Monaco, who herself is a former lawyer for Apple. Carlin is now a partner at the mega-law firm Paul Weiss, which previously employed Kanter as he represented Google competitors. By hiring the firm, Google effectively paid it to switch sides.

So on the one hand, Google argues that the government cannot benefit from experienced antitrust litigators who have a sincere belief in antitrust litigation, but it also obviously believes it should be able to hire as many turncoat former DOJ officials, ready to fight on behalf of whoever is paying them, as it wants. If there is any ethical concern here, it is precisely this revolving-door behavior. In recent years, several former Big Tech lawyers have revolved in and out of the DOJ, only to return to representing their tech clients. Cushy corporate jobs worth far more than the stacks of cash and gold bricks recently found in the home of Sen. Bob Menendez (D-NJ) are widely available to top government officials willing to leverage their important government knowledge and relationships on behalf of corporate clients. Examples abound of current DOJ officials who have worked for Google and other Big Tech companies, in addition to the ones noted above. The current head of the DOJ’s Civil Division, Brian Boynton, previously served at the department in the Obama administration. In between his stints in government service, he returned to his old law firm, WilmerHale, where his clients included Google. That’s the very definition of the revolving door.

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