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Why Joe Biden might kill the DOJ's case against Google

Google has the resources to pressure a new administration to change course — and Trump has given Biden an excuse to do just that.

Why Joe Biden might kill the DOJ's case against Google

If Biden wins in November, the DOJ could have an uphill battle convincing the administration to follow through on the federal antitrust suit.

Photo: Gage Skidmore/Flickr

There's an old adage in the political world: Don't pick battles with people who buy ink by the barrel. Imagine what it'd take to apply that saying to the United States Department of Justice: Don't pick fights with people who file prosecutions by the millions? There's no legal entity in the world with more resources, sophistication, talent and power than the Justice Department. And yet, in its coming antitrust battle with Google, DOJ may meet its match.

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Google is valued at a little over $1 trillion. The federal antitrust suit alleges that Google's control of search is monopolistic and cannot continue. That's an existential threat to Google's future, meaning there's literally no amount of money Google shouldn't spend to win in court and to make its case in public. That doesn't just mean tens or even hundreds of millions of dollars budgeted for the legal fight. It could mean billions or even tens of billions of dollars.

At the same time, the Justice Department has suffered a major talent drain since the Trump administration began dismantling the checks and balances that usually separate the political needs of the White House from the daily to-do list of the attorney general. If the current polls hold, Joe Biden is likely to win in November and present a new attorney general for Senate confirmation in January. While dropping a federal lawsuit just because of regime change isn't normal, in this case, team Biden could easily say "Trump and Barr pushed this through for political purposes, just like they did with everything else. Prosecuting Google may absolutely be the right thing to do, but we'll determine that on the merits and the facts, not on the politics. Stand by."

At the very least, that means that the current antitrust team at DOJ working on the case will have to convince their new bosses that this single prosecution, against a foe essentially just as rich and well-resourced as they are, is worth the political cost. What happens if Google starts running negative advertising against Biden across the country? What if they go after House and Senate Democrats? How many points do they have to take off of an incumbent's approval rating before the White House is flooded with calls from anxious politicians who want the advertising onslaught to stop, regardless of what it means for antitrust policy?

It's clear that the Justice Department has been concerned about monopolistic behavior by Google, Facebook, Amazon and Apple for a long time. And it's clear that DOJ has studied the case against each tech giant carefully. But whether the choice to target Google is based on the highest odds of success, the greatest good for innovation and competition, or if it represents the political agenda of an extremely paranoid president and attorney general is unclear at best. And if Google flexes its muscles enough, it may be able to convince the incoming administration to first figure out exactly why Trump and Barr chose Google before pursuing litigation that will consume the agency for years to come.

Maybe upon further examination, it's clear that Google is the right antitrust target and the case proceeds as planned. Or maybe it's clear instead that having Google as a mortal enemy isn't worth the cost, especially when you can pin the blame on the previous administration. Or maybe Biden's supporters like Elizabeth Warren on the far left who favor antitrust prosecutions, new privacy regulations, peeling back the protections of Section 230 and more prefer taking on Facebook instead (especially after Mark Zuckerberg's long courting of Jared Kushner).

The case against Google may be winnable. It may be the right thing to do. But coming at the very end of a term from the most controversial administration ever means that Team Biden has the excuse to set the case aside, if they so choose. And it means that this fight not only is far from over, it may never even get started.

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