At least the ethical standards interpreted by the Biden team would force Kanter to withdraw from the antitrust proceedings that the DOJ had filed against Google in October. The Trump administration took a more lenient approach, hiring senior DOJ antitrust officials from law firms to represent Google complainants.
Biden is already under pressure from the left not to hire attorneys who have worked for large companies in Silicon Valley – another restriction that is putting the White House in trouble finding an assistant attorney general for antitrust law.
Jeff Hauser of the Revolving Door Project, a division of the nonprofit center for economic and political research that investigates the background of executive officials, said it was “ridiculous” to impose a blanket restriction on candidates representing those who complained against Google.
“Google is similar in some ways Roe v. calf for a candidate for the Supreme Court, ”said Hauser, referring to the landmark decision that enables access to abortion. “It is implausible that you lack an opinion on this subject.”
Antitrust law relies on private parties and plaintiffs to enforce the law, said Hauser, who earlier served in the DOJ’s antitrust division. The Google case includes “a massive monopoly, the effects of which are macroeconomic. What companies have no interest in one way or another with Google? “
The ethical issues have already turned off Terrell McSweeny, a former Biden aide and former Federal Trade Commission member who is considered a technical centrist and has already been considered a favorite for the DOJ role. She then withdrew from the consideration White House ethics advisors said working for companies that complained about Google would require them to stand down antitrust proceedings against the search giant, said three people familiar with the situation.
The McSweeny, Covington & Burling law firm also frequently represents Facebook. This would have hindered their participation in the antitrust surveillance of the social network by the DOJ, as the Biden officers are not allowed to work on their previous employers for two years according to ethical rules.
Kanter, who represents several complainants involved in the EU, would ask himself similar questions Google Antitrust Probe and companies that have raised antitrust concerns about Apple with the Justice Department.
Kanter, who opened his own law firm in September, previously worked for a law firm that represents Mastercard, Uber and Amazon on antitrust issues. He likely also had to pull out of DOJ cases that these companies were involved in.
The other lead candidate for the DOJ’s antitrust chief, former Obama administration attorney Jonathan Sallet, would face fewer ethical obstacles – despite working for the state of Colorado and a multi-tier coalition of attorneys general in a parallel antitrust case filed against Google in December has been. This is because ethics officials view states as sovereign entities rather than parties demanding action from the Department of Justice, according to those familiar with the situation. They all discussed internal administrative considerations on condition of anonymity.
Sallet is not without his critics, despite having received praise from the Nebraska Republican Attorney General Doug Peterson for following the state case on Google Search. Others in the general offices of Republican and Democratic attorneys remain upset by internal bruises last summer over whether states should join the Justice Department antitrust case if it was filed before election day, two coalition officials said. Sallet was a key player in convincing most states to stay away the case of the Trump administration. He was also the lead author of the States’ Complaint, a role in which he was the arbitrator that the allegations made the cut and where it did not.
After POLITICO reported that Sallet was being considered for a top antitrust agency, Kanter’s supporters continued to stand up for him as a potentially “transforming” figure for antitrust law. The progressive non-profit organization American Prospect called the choice between Sallet and Kanter one between “good and great”.
Early in the process, the White House also considered Richard Parker, a partner at Gibson Dunn & Crutcher, and Stanford Doug Melamed of the Law School for the top DOJ role, said three people with knowledge of the discussions. Parker ran the FTC’s competition bureau during the Bill Clinton administration and it was rumored that he would be considered headed the agency if Hillary Clinton wins the 2016 election. Melamed before worked in the antitrust department of the DOJ, where he was involved in the longstanding antitrust lawsuit against Microsoft. He later served as Intel General Counsel before joining the academy.
However, Parker represents Amazon as well as companies that have complained about Google. His law firm has also long represented Apple on antitrust issues, which is likely to make the conflicts insurmountable.
Kanter would need several waivers to accept the job.
Justice Department Ethics Rules urge officials to avoid the appearance of a loss of impartiality, although senior DOJ officials may waive the need to reject an individual if their participation outweighs concerns that the integrity of the department would be compromised.
Likewise the Ethics pledge of the Biden administration requires an individual not to participate in matters involving their former employer or previous clients for two years. This restriction can also be waived if this is in the “public interest”.
Both are not impossible. In the early 2000s Parker received a waiver of representing the FTC in its case against Intel, although his former law firm, O’Melveny & Myers, represented chip maker Advanced Micro Devices, the lead complainant in the case. (Incidentally, one of the key O’Melveny & Myers attorneys representing AMD was Sallet.)
However, it remains unclear whether the White House is ready to take the mat for Kanter if candidates with fewer conflicts remain an option.
In one White House Chief of Staff Ron Klain declined Thursday to comment on Sallet’s potential candidacy for the role of assistant attorney general.
“We’re going to go through the process,” said Klain. “We have to address some of the ‘size’ in our country and make sure we have a system that works for the middle class and consumers.”