May 13, 2022
To Associate Attorney General Vanita Gupta
We write to you as a coalition of organizations committed to holding anti-competitive behavior accountable. As a decorated antitrust lawyer committed to the public interest, Jonathan S. Kanter has the background needed to be a strong Assistant Attorney General for the Department of Justice Antitrust Division (DOJ).1 We are thus alarmed that Mr. Kanter was barred from participating in DOJ scrutiny of Google while the DOJ determines whether to ask for his recusal at the behest of the embattled company.2 Accordingly, we urge the DOJ to provide Mr. Kanter with a waiver to allow him to participate in DOJ scrutiny of Google’s anti-competitive behavior.3
A review of federal ethics guidelines dispels the argument that Mr. Kanter’s work in private practice to rein in monopoly power stops him from being impartial in scrutiny of the company. Mr. Kanter does not possess any financial conflicts of interests as articulated in 18 USC § 2084 that would preclude him from participating in impartial scrutiny of the company. Furthermore, Mr. Kanter has not represented either relevant party in United States v. Google. Moreover, as Harvard Constitutional law professor Laurence Tribe has argued, Mr. Kanter has not violated the DOJ’s ethical guidelines as he has not “switched sides” from defending Google to enforcing the law against the company.5 As such, there is no identifiable prior fiduciary relationship that would call to question his ability to advocate on the DOJ’s behalf.
On the contrary, Mr. Kanter’s efforts in private practice to hold Google’s anti-competitive behavior accountable is a mark in his favor, not an ethical predicament. Working to hold corporate impropriety accountable in the private sector certainly does not make one unfit to oversee similar efforts in public office. Indeed, Mr. Kanter’s recusal is particularly concerning because of the precedent it could set in other policy areas. For example, would an environmental lawyer who filed suit against Chevron in private practice be expected to recuse themselves from scrutiny of the company if they were tapped to lead the DOJ Environment and Natural Resources Division?
Mr. Kanter’s recusal is especially concerning given that Biden Administration attorneys who do have or have had financial ties to Google have not had to recuse themselves from scrutiny of the company.6 Deputy Attorney General Lisa A. Monaco, for example, was a founding principal for consultancy firm WestExec Advisors, which provided advisory services to Google.7 If Google was acting in good faith, the company would demand the recusal of Ms. Monaco and other Biden Administration officials with ties to Google to recuse themselves from scrutiny of the company.8
But the fact of the matter is that Google is not actually concerned about potential conflicts of interest. To put it plainly, Google’s demand that Mr. Kanter recuse himself from scrutiny of the company is an effort by a corporate giant to bully regulators into submission.9 Unfortunately, if the DOJ does not grant Mr. Kanter a waiver to continue to participate in scrutiny of the company, it will not only be bending to these petulant and dangerous tactics, but giving other powerful corporate actors incentive to engage in similar behavior.
In 2016 alone, the DOJ granted three public interest waivers to permit officials to participate in cases where there were potential conflicts of interest owing to their employment history.10 In the case of Mr. Kanter, there is no potential conflict of interest stemming from his past employment history, and failing to grant him a waiver effectively sanctions Google’s behavior as legitimate.
A bipartisan majority in the Senate placed their trust in Mr. Kanter’s ability to hold corporate monopolists accountable by confirming him in a 68-29 vote.11 Mr. Kanter being forced to recuse himself from scrutiny of one of the powerful monopolists on Earth would have alarming implications for future efforts to hold corporate impropriety accountable. We urge the DOJ to swiftly reverse course and allow him to lead United States v. Google and related efforts.
American Economic Liberties Project
American Family Voices
Appalshop Community Media Initiative
Center for Digital Democracy
Demand Progress Education Fund
Fight for the Future
Future of Music Coalition
Institute for Local Self-Reliance
Jobs With Justice
Main Street Alliance
National Employment Law Project
People’s Parity Project
Progressive Change Campaign Committee
Progressive Democrats of America
Revolving Door Project
Social Security Works
The Freedom BLOC
The Greenlining Institute
The Other 98%