Last week the Biden administration appointed career civil servant Richard Powers as Acting Assistant Attorney General for the Department of Justice Antitrust Division (ATR). With the question of who will become Assistant Attorney General still up in the air and their confirmation likely several months away, the direction of the ATR’s enforcement is left in the hands of three top officials.
One, reasonably enough, is a non-political career official, the aforementioned veteran criminal enforcer Powers. Acting Assistant Attorney General Powers has worked in the Justice Department since 2009, becoming Deputy Assistant Attorney General for Criminal Enforcement at the division in 2018. Powers is an interesting case—he was a career prosecutor who did serious work on Antitrust and financial matters within DOJ’s Antitrust and then Criminal Division before returning to the Antitrust Division. Nonetheless, it’s noteworthy that Powers’ appointment to head DOJ Antitrust’s Criminal work under Trump represented “the first time that the Antitrust Division has not selected one of its current career prosecutors to serve as the head of its criminal enforcement program.” And it also raises eyebrows that Powers selection followed “a nearly yearlong process to fill the Antitrust Division’s most senior criminal enforcement position.”
But it is the other top 2 officials in the Division who represent even more worrisome indications about how a Justice Department helmed by Attorney General nominee Merrick Garland might approach issues of corporate greed. Powers’ current colleagues at the top of the Antitrust Division include one definite Republican and another figure trusted to join the inner sanctum by Trump’s controversial Antitrust Assistant Attorney General after less than two years of public service. As such, the makeup of the Division’s front office is an ongoing threat to President Biden’s specific promise to “take a really hard look at” corporate tech monopolies and commitment to anti-monopoly more generally.
Powers’ chief of staff is James Attridge, an attorney who also worked in criminal enforcement but previously worked at BigLaw firm Skadden Arps from 2012 to 2016. Attridge may technically be a career employee, but he joined the Division after Trump’s election in January 2017 and was chosen a “Counsel to the Assistant Attorney General, Antitrust Division” before the end of 2018. Attridge then spent the next 26 months within the front office of Trump’s corrupt and ineffectual Antitrust chief, Makan Delrahim.
If Delrahim trusts someone—especially after a whistleblower came forward to document his corruption—that’s a good sign Biden and his team should not.
Arguably even more discouraging is a key holdover from the Trump Administration—ATR’s top economist, Babette Boliek.
Former ATR Assistant Attorney General Makan Delrahim hired Federalist Society member Boliek as Deputy Assistant Attorney General for Economics as his last act before stepping down. Boliek previously worked at George Mason’s Antonin Scalia law school, a hothouse for conservative antitrust thought. The law school’s Global Antitrust Institute arranges conferences funded by Big Tech firms like Google, Amazon, and Qualcomm aimed at teaching regulators that “the best way to foster competition is to maintain a hands-off approach to antitrust law.” Boliek’s most recent government position was top economist at Ajit Pai’s notoriously corporate friendly FCC from 2018 to 2019.
Politico previously reported that Boliek is expected to hold the post until a Biden AAG chooses her replacement—potentially not until June 2021. With Boliek, Attridge, and a non-ideological Acting AAG at the helm of the ATR during the Biden administration’s crucial first months, the division may allow questionable mega-mergers to proceed with no in-depth investigation.
Meanwhile, Big Tech and other industries continue to make billion dollar deals with seemingly little pushback from the antitrust enforcement agencies—take for instance, Salesforce’s announced $27.7 billion acquisition of Slack, which, according to a February 11th report by the Capitol Forum, may not even be facing a second request for information from the ATR. The merger could result in the degradation of third party integration with Slack in order to promote its customer relationship management suite over those owned by competitors.The possibility that the Salesforce-Slack merger may proceed without the DOJ taking any action to even formally assess possible anti-competitive effects doesn’t bode well for Powers’ inability or willingness to counterweight the conservative thought Boliek promotes.
We appreciate FTC Acting Chair Rebecca Saughter’s move to suspend the FTC’s and DOJ’s early termination program (thereby stopping mergers that might slip by during the transition period from gaining early clearance in the merger review process). However, the acquisition of Slack is proof questionable mergers are proceeding. And of course there need to be significant non-merger civil investigations into our vastly too consolidated economy—populists across the ideological spectrum agree that the American economy cannot wait any longer for appropriate antitrust scrutiny.
However, we have no reason to believe that Judge Merrick Garland is a populist. Indeed, his personal and professional ties to sleazy Democratic fixer and union-busting Amazon Board member Jamie Gorelick suggest he is not. That’s why the Revolving Door Project will be continuing to urge scrutiny of Garland and his team, including his controversial Acting head of the Civil Division, Brian Boynton.
The Justice Department’s approach to corporate power matters on issues from tax enforcement to civil rights and from the environment to corporate white collar criminal accountability. But Antitrust remains perhaps the cleanest test of whether Garland will live up to Biden’s clear commitments.
All three officials running the Antitrust Division as of today are people picked for their jobs by Makan Delrahim. Two of them (Attridge and Boliek) lack records of the sort we expect Democrats to value that justify their retention in leadership positions. As we acknowledge, Powers’ case is trickier, since it is concerning that he was handpicked by Delrahim, but he had assembled a serious enforcement record predating his ascent.
Regardless, the Antitrust Division needs acting Democratic leadership to point antitrust enforcement in the direction President Biden promised—taking on monopolies and economic concentration. And the US Senate is, as of this moment, a disaster, with needed actions piling up. Until there is a system in place to move the backlog expeditiously, we worry about the scheduling of confirmation hearings and votes. Heck, the US Senate rushed through Trump’s impeachment trial with no witnesses in order to spend a week at home celebrating Valentine’s Day (we’re not really exaggerating much)—this backlog is going to get worse before it gets better.
That means there is a very real possibility that the Antitrust Division is not run by populist Democrats until fall. (Or ever, as we have warned, if Biden undercuts his commitments and chooses a Big Tech favorite.) Congressional Democrats like Senator Amy Klobuchar and Representative David Cicilline as well as the entire antitrust movement ought to pressure Biden and Garland to install immediately capable, energetic figures who can enforce the antitrust laws vigorously until Senate confirmed leadership is installed. We have a crisis of consolidation in this country, and waiting on timely Senate confirmation of a figure not yet nominated before beginning to take that crisis head on is indefensible.