Protocol | Policy

What can’t Jonathan Kanter do?

Biden's nominee to lead the DOJ's antitrust section may face calls to remove himself from issues as weighty as cracking down on Google and Apple.

Jonathan Kanter

DOJ antitrust nominee Jonathan Kanter's work as a corporate lawyer may require him to recuse himself from certain cases.

Photo: New America/Flickr

Jonathan Kanter, President Joe Biden's nominee to run the Justice Department's antitrust division, has been a favorite of progressives, competitors to Big Tech companies and even some Republicans due to his longtime criticism of companies like Google.

But his prior work as a corporate lawyer going after tech giants may require him to recuse himself from some of the DOJ's marquee investigations and cases, including those involving Google and Apple.

Requests for recusal have recently emerged as one of Big Tech's weapons as it fights rising antitrust scrutiny. Facebook and Amazon have already pushed for Federal Trade Commission chair Lina Khan to remove herself from matters involving their companies, citing her writing, her work with think tanks and her time as a congressional staffer.

Yet Kanter may have done even more to invite antitrust scrutiny on Big Tech — and the rules he faces at the DOJ may be tighter.

As a lawyer for Yelp, News Corp. and other companies that frequently criticize Big Tech, Kanter eagerly pushed government enforcers to file a range of competition lawsuits, especially against Google. He often argued that the company privileged its own properties over those of competitors like Yelp in search results and criticized Google's dominance in the online ad market. In a 2018 testimony before the Senate, he argued "that concentrated economic power could pose as great a threat to liberty as political power" and scolded courts and government enforcers who narrowed deliberately broad competition laws.

The Department of Justice's own lawsuit, filed last October, makes a slightly different case against Google, focusing on the company's alleged monopolization of online search. But the issue Yelp's describing — involving alleged search bias — did make it into a multistate complaint that was filed in December, and courts are now consolidating that case with the federal one.

Under federal regulations, government appointees who have worked on "a particular matter involving specific parties" under their official remit must recuse themselves for one year. On his first day in office, Biden also issued an ethics order requiring appointees to extend that cooling off period to two years. The rules already raised concerns among White House ethics officials about nominees like Kanter, according to an April report.

"If he was representing Yelp in the same or a substantially related complaint, then you wouldn't want it to appear that he was carrying water for any particular former client," said Virginia Canter, a former lawyer in the Clinton and Obama White Houses who is now chief ethics counsel of the transparency group Citizens for Responsibility and Ethics in Washington. "There should be no question about whether or not the public interest is being served."

In addition, last year, Kanter left as co-chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton & Garrison. The firm is now representing Apple in a lawsuit by Epic Games, among other matters. The two-year restriction in Biden's ethics order also extend to clients of recent former employers, and the Justice Department is indeed investigating Apple. As if that weren't complicated enough, Kanter himself has represented Apple complainants like Spotify.

Progressives who supported Kanter cheered his long-term antagonism of Big Tech and support of smaller competitors like Yelp. Yet Kanter's former firm has also represented Mastercard, Cigna and other big companies in competition matters. Nearly a decade ago, at a prior firm, Kanter even won an award for his work helping Microsoft navigate its acquisition of Skype.

His work for complainants against Big Tech doesn't automatically require recusal. Canter and others said the administration will probably weigh how closely his own advocacy mirrored the DOJ's cases, as well as other variables, like whether his former clients are witnesses, various bar rules, appearances of conflict and whether he's really switching sides or merely switching roles on the same side.

"You really have to look at all the particulars," Canter said. "You don't want to knock somebody out if you don't have to."

Biden's order also allows for waivers when "the literal application of the restriction is inconsistent with the purposes of the restriction." That, some say, could cover someone like Kanter transitioning from helping the government as a private lawyer to overseeing the government's work. Waivers also need to be in the public interest, including "exigent circumstances relating to ... the economy."

Recusals from matters involving Big Tech, however, would not be unprecedented: The head of the antitrust division under Trump, Makan Delrahim, eventually recused himself from the Google investigation. He'd lobbied for the company's acquisition of DoubleClick more than a decade earlier.

Asked whether recusals or a waiver were necessary, a White House official would say only that the administration is "confident moving forward with Kanter for the position given his track record and expertise." Google declined to say whether it planned to seek Kanter's recusal.

Some defenders of competition enforcement have said that Facebook and Amazon's calls for Khan's recusal at the FTC are really just efforts to escape legal scrutiny. Big Tech critics argue that rather than citing any actual conflict of interest, like switching from the plaintiff's side to the defense's in a case, these companies are more or less complaining about the very traits that make Khan qualified for the job.

Some have said the same about Kanter, particularly following a POLITICO story on potential administration concerns about nominees with histories like his. Jeff Hauser, a former Justice Department antitrust lawyer who tracks corporate officials in government, tweeted at the time that Kanter will help the Justice Department, as his private sector experience makes him a better choice for the job and is "very different from defending corporations accused of violating antitrust law."

Some Kanter defenders acknowledged tech companies could raise concerns as well, although certain issues may be moot. The U.S. case against Google has already launched, for instance, and the two-year ban could expire before a trial, which is scheduled for late 2023.

Even if Kanter does have to recuse himself, "DOJ can still do aggressive work against these companies," said Alex Harman, competition policy advocate at the liberal group Public Citizen, which has backed Kanter.

Unlike the FTC, an independent agency where partisan commissioners vote, the Justice Department is supposed to follow the president's vision of expanded competition enforcement, Harman noted. Even if Kanter didn't participate in litigation strategy or potential settlement negotiations, he could still point the division toward a harder line on concessions, more aggressive merger challenges, expanded theories of harm and more plaintiff-friendly trends in market definition. Whatever department lawyer would oversee the case in the meantime would likely be well aware of the new course that the division chief had set.

"It's a lot of nothing when somebody has to recuse at an agency," Harman said, although he added it might well be necessary. "He's there because of his experience and his viewpoint, and if he hadn't been working, he wouldn't have this experience."

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