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Op-Ed | The American Prospect | October 20, 2021

Who’s Really Running Justice?

Anti-MonopolyDepartment of JusticeEthics in Government
Who’s Really Running Justice?

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It was never a secret that Attorney General Merrick Garland was among the key Biden administration figures opposing Jonathan Kanter’s nomination as assistant attorney general for antitrust. Ultimately, however, Garland did not get his way; the appointment went to Kanter rather than to one of the many Big Tech–allied BigLaw partners whom Garland favored. In view of Kanter’s career as a plaintiff’s lawyer, his nomination was rightly celebrated as a decisive victory by antitrust reformers and BigLaw opponents alike. But it was just one battle in a broader war for renewed anti-monopoly enforcement and a DOJ eager to build back better in every policy area.

That much is clear from the revelation that Susan Davies, a former Kirkland & Ellis partner who represented Facebook and was Garland’s onetime top choice to lead the Antitrust Division, has been heading the Office of Legal Policy (OLP) since September 3 and will be until Biden’s nominee to head that office has been confirmed by the Senate. Until just a few days ago, that fact was entirely hidden from public view, which begs some questions: How is this secrecy even possible? Was Davies secretly working at DOJ in some other capacity before September 3? And are other officials whose presence has been kept from the public secretly calling the shots within the DOJ?

We’d been hearing rumors since early spring that Davies had been placed somewhere in the Justice Department. Getting any sort of official confirmation, however, turned out to be a remarkable ordeal. We found no evidence of Davies’s employment on the DOJ website and directories. In April, we sent a Freedom of Information Act request asking for rosters of every Justice Department division and office’s leadership. In the ensuing weeks and months, we received documents from many of those offices, but nothing from the OLP (or the other divisions for which the Office of Information Policy handles requests). In June and in August, we sent additional requests for any records reflecting any agreement to recuse from policy matters on which Davies is conflicted and for her personnel forms, respectively. No word came on either of those straightforward requests.

That the FOIA is dysfunctional is no secret. This extended failure to furnish records in response to a simple request is hardly evidence of a conspiracy to withhold the information (although whether that’s really comforting from a transparency perspective is debatable). The roadblocks we encountered when we tried the DOJ’s press office, on the other hand, are less easily attributed to administrative dysfunction.

On July 26, we sent a simple query to the Office of Public Affairs: “Does Susan Davies work at the DOJ? If so, where?” Two days later, someone responded and asked, “Can you give me a little more info on what you’re looking for?” Our request had seemed straightforward to us, but we hopped on the phone to explain that we were working on a piece for The American Prospect and were looking to learn if Davies was in the building. After that phone call, radio silence. We followed up three more times over the course of two weeks, but never got an answer.

In early September, we decided to start over and send in a new inquiry. That one went without acknowledgment. On October 4, we sent a third request. Over a week later, after some back-and-forth and several follow-ups, we got an answer: “Susan Davies is Senior Official and Deputy Assistant Attorney General in the Office of Legal Policy.”

That information appears to have been put up on OLP’s website on October 7, three days after our inquiry and one day after the initial response to it. Coincidence? We think not. There, we also learned that Davies is not only working at OLP but leading the office while Biden’s nominee for the role awaits confirmation. And she has been since September 3.

We still have questions. Did Davies start in the office September 3? Or was she working there beforehand with a less permanent title, as we’d heard rumored? Has she held other positions within the DOJ after she left Kirkland & Ellis in February? We’ve posed these questions to the DOJ but have not yet gotten a response. We sincerely hope that it won’t take another three months to get an answer.

That DOJ leadership was even able to hide an appointee’s presence in the first place is alarming. That that appointee’s background defending Big Tech and other corporate clients was enough to disqualify her, seemingly, from another role only makes it more so. In the absence of strong ethics policies that bar officials with severe conflicts of interest from service, public scrutiny is among the only remaining safeguards against such conflicts. The lack of transparency at the DOJ is robbing the public of even that.

Soon, such concealment may no longer be possible. In September, the House passed a measure—the PLUM Act—that would require agencies to publish the names of all political appointees in a single database on a monthly basis, rather than once every four years, as is current practice. The bill is currently awaiting approval by the Senate. Until that happens, however, there’s nothing stopping Garland from secretly placing his allies in important positions throughout the department.

And make no mistake: Susan Davies has an important position. The Office of Legal Policy sits at the center of practically all Justice Department, not to mention a sizable share of government-wide, policy. It advises all departmental components throughout the stages of regulatory development and finalization and “serves as a liaison to OMB [the Office of Management and Budget] and other agencies on regulatory matters.” OLP also coordinates the department’s efforts to advance the administration’s agenda and advises the attorney general on policy matters. In addition, it often plays a major role in selecting judicial nominees. Given its critical responsibilities and power over so many policy areas, we would hope to see someone with a record that guarantees absolute, conflict-free independence in the position.

Susan Davies? After leaving the Obama administration in 2011, she went to work for the right-leaning law firm Kirkland & Ellis (which counts among its alumni both William Barr and Brett Kavanaugh). There, as a prominent Democrat, she served, as one of our associates wrote, as “cover for the firm’s clients that are more hesitant to be associated with a firm so closely tied to the GOP” and to help the firm be a mouthpiece for “attacks on government regulation [that] sound more compelling to a Democratic administration when they come from a fellow Democrat.”

As for conflicts of interest, we know very little about whom she represented personally—because, of course, her financial disclosure has not been shared with us. However, browse the firm’s list of clients—which include the private equity firm Blackstone, oil and gas giant BP, and pharmaceutical company Abbvie—and it’s clear that there’s cause for concern. We know for sure that Davies defended Facebook in a 2012 case alleging that it had violated federal antitrust and California law. At OLP—whether leading it, or just working as a senior voice known to be close personally to the attorney general—she will be a key voice shaping departmental policy and regulation impacting all of these companies and more.

And let’s not forget that she will also be helping to shape the nature of Biden’s impact on the federal judiciary. This role, too, will be of utmost interest to her former (and, let’s face it, likely future) corporate clients, no matter who they are. Unfortunately, her track record in this regard is abysmal. Davies played a similar role in the Obama administration, at that time from the White House, and is partially responsible for the fact that 74 percent of Obama’s judicial picks came out of corporate law firms while fewer than 4 percent came from public-interest organizations. That does not inspire confidence.

If Garland’s idea of restoring public trust in the Justice Department consists of hiding conflicted officials from view, we are in trouble. We know Garland will not bar corporate attorneys from his department, but it does not seem too much to ask that the DOJ disclose to the public in a timely manner who is, well, running the DOJ.

Anti-MonopolyDepartment of JusticeEthics in Government

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