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Blog Post | June 14, 2022

DOJ Leaders With Actual Conflicts (Unlike Jonathan Kanter) Refuse to Recuse

Anti-MonopolyDepartment of JusticeEthics in GovernmentTech
DOJ Leaders With Actual Conflicts (Unlike  Jonathan Kanter) Refuse to Recuse

The Department of Justice’s recent decision to bar Assistant Attorney General for Antitrust, Jonathan Kanter, from working on investigations into tech giant Google while the Department weighs whether to force his recusal outright reflects an undeniable double standard in light of the widespread conflicts of interest at the DOJ. Kanter’s mistreatment further demonstrates the Justice Department’s overwhelming commitment to protecting the interests of big business.

Kanter’s critics within the DOJ charge that his previous work in the private sector presents a conflict of interest when it comes to cases involving Google. In doing so, they and their allies in Silicon Valley not only mischaracterize the nature of Mr. Kanter’s work, but are also establishing an “ethical” precedent that many current DOJ officials do not come close to meeting.

Ben Clements, chair of the legal advocacy group Free Speech for People, writes that several factors can justify a recusal:

First, the financial conflict of interest statute, 18 USC § 208, prohibits an official from participating in any particular matter that affects their financial interests (excluding certain remote or inconsequential interests) or the interests of their spouse, minor child, or general partner.

Second, under the government ethics regulation, recusal may be required when an official has, or has had within the past year, a “covered relationship,” such as lawyer-client or employee-employer, with a person or entity named as a party in a specific matter (or the party’s representative in that matter) that would lead a reasonable person (with knowledge of the relevant facts) to question the official’s impartiality in the matter.  (President Biden’s ethics executive order contains a similar restriction and extends the look back period to two years).

Third, recusal may be warranted when other circumstances exist (apart from a financial conflict of interest or a covered relationship) that would lead a reasonable person to question the official’s impartiality in a specific matter.

Kanter has no financial ties to, nor has he ever entered into a covered relationship with, companies currently named in matters before the Antitrust Division. He has, however, represented companies seeking to hold Big Tech, particularly Google, accountable for anti-competitive practices. Kanter’s past work has always been in support of vigorous government enforcement of the law and the broader public interest. Despite this, his critics have baselessly deemed it not only a conflict of interest, but one severe enough to meet the vague and arbitrary third criteria for recusal without possibility of a waiver.  

Indeed, as acutely noted by Laurence Tribe, University Professor Emeritus at Harvard University and a leading legal scholar:

“As it stands, Kanter has not represented any of the named parties in this litigation. But beyond this, a reasonable person would never think that Kanter’s previous work supporting antitrust enforcement conflicts with the goals of the Department, unlike the client work contemplated by the ethics guidelines. A reasonable person knows instead that the guidelines are meant to prevent conflicts like a former Apple or Google attorney handling or overseeing a case against their former client.”

If the DOJ accepts Google’s logic in good faith, the federal government’s ability to hold corporate impropriety accountable will be hindered in issues outside the tech sector as well. In a letter to Google’s CEO, Senator Elizabeth Warren and Representative Pramila Jayapal spell out how Google’s weaponization of federal ethics rules could prove an impediment to justice: 

“Google’s logic would neuter federal enforcement activity; for example, a civil-rights litigator at the Department of Justice would be required to recuse herself from cases against states notorious for voter suppression efforts if the litigator had previously opposed those same suppression tactics. This interpretation turns federal ethics laws—designed to prevent government officials from working against the government interest for private gain—upside down.”

Ultimately, Kanter’s recusal has nothing to do with ethics and everything to do with the profit margins of Silicon Valley titans. It is the result of tech companies, in the words of the Revolving Door Project’s Jeff Hauser and Eleanor Eagan, “throwing goop at a wall and hoping that something might stick.” The difference between the DOJ’s treatment of Kanter and their handling of other officials’ blatant conflicts of interest makes this clear. 

Take the case of Deputy Attorney General Lisa Monaco. In her current role, Monaco oversees aspects of the entire Justice Department and is involved in a variety of cases. As a former consultant at the Biden-favorite advisory group WestExec and partner at the law firm O’Melveny & Myers, she recently represented corporations like Boeing, Humana, Lyft, and ExxonMobil. This is already creating severe conflicts of interest that are not generating close to the amount of pushback that Kanter’s appointment has. For example, Monaco was not required to recuse herself from efforts to boost police funding and regulate cryptocurrency, even though she and O’Melveny & Myers recently represented both defense contractors and cryptocurrency trade groups. 

The double standards extend far beyond Monaco. The heads of numerous DOJ divisions have conflicts of interest well beyond anything Kanter has been accused of. Acting Civil Division head Brian Boynton represented defense contractors, Big Tech companies, and pharmaceutical manufacturers as a partner at BigLaw firm WilmerHale. He is currently overseeing a number of False Claims Act cases against industries he once represented, including the pharmaceutical company and WilmerHale client Incyte Corp. 

Matt Olsen is a former Uber executive and WestExec advisor now tasked with leading the DOJ’s National Security Division. Olsen’s ethics agreement reveals a charitable side to the DOJ not apparent in their treatment of Kanter. Olsen is not only allowed to keep his common stock in Uber, but also his carried interest in investment firm Enlightenment Capital. This decision was made in spite of Olsen’s own acknowledgment that his work may impact these assets.

The DOJ has also given a pass to BigLaw alums like Todd Kim, Brian Netter, Kenneth Polite, and Elizabeth Prelogar. Kim was a partner at fossil fuel champion Reed Smith before taking over the Environment and Natural Resources Division. Netter, now in charge of representing the government in challenges to federal regulation with the Federal Programs Division, sued the EPA and IRS while at Mayer Brown. Criminal Division head Polite specialized in white-collar criminal defense and represented companies like JPMorgan Chase, Morgan Stanley, Transocean Deepwater, and M&T Bank while working with the law firm Morgan Lewis. Solicitor General Prelogar earned $2 million through corporate defense work in 2020 alone.

Clearly the DOJ’s leadership does not have a problem with egregious conflicts of interest. What they do have a problem with is Mr. Kanter challenging Big Tech monopolies. 
The implications of this attack on our legal system are serious. We are living through a moment in which many regular people have lost faith in the ability of our institutions to serve them. If the Biden Administration and DOJ do not reverse course on Kanter’s recusal, they will not only be breaking a campaign promise to take on monopolies, but will also be further demonstrating to the public that Washington is more concerned with appeasing corporations than helping the American people.

Image: “U.S. Department of Justice headquarters, August 12, 2006,” by Coolcaesar is licensed under CC BY-SA 3.0

Anti-MonopolyDepartment of JusticeEthics in GovernmentTech

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