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'A Terrible Idea': Biden Warned Against Picking Big Tech Lawyers to Lead DOJ Antitrust Division

"Bringing in anybody from Big Tech to a leadership role in antitrust is a political, policy, and managerial disaster."

This file photo taken on October 1, 2019 shows the logos of mobile apps Facebook and Google displayed on a tablet. (Photo: Denis Charlet/AFP via Getty Images)

With President-elect Joe Biden reportedly leaning toward nominating a former Google and Amazon attorney to head the Justice Department's antitrust division, a coalition of dozens of progressive advocacy groups representing millions of Americans is pressuring the incoming president to immediately change course and embrace the growing push to dramatically reduce the power of monopolistic corporations.

"As you prepare to take office, we urge you to avoid appointing to key antitrust enforcement positions individuals who have served as lawyers, lobbyists, or consultants for Amazon, Apple, Facebook, and Google," reads a letter (pdf) dated January 18 and signed by Public Citizen, the American Economic Liberties Project, Accountable Tech, and 37 other organizations.

"The incoming Biden admin should prioritize appointees with strong antitrust history for the DOJ's antitrust division. The reported consideration of corporate attorneys Renata Hesse and Juan Arteaga represent just the opposite."
—MoveOn

"Instead, we encourage you to appoint experienced litigators or public servants who have recognized the dangers of, rather than helped to exacerbate, these corporations' market power," the letter continues. "American democracy is in crisis, and it is in some ways a result of social media corporations who have killed local newspapers, and structured their business models to engage, radicalize, and addict users so they can monopolize ad markets."

The groups' 11th-hour pressure campaign comes in the wake of reporting last week by The American Prospect and The Intercept indicating that Renata Hesse, who served in the Justice Department during the Obama administration, is currently Biden's top choice to take charge of the DOJ's antitrust division, news that was met with outrage by progressive critics of corporate consolidation.

Hesse has moved back and forth between government positions and corporate law firms for decades, and her nomination to the Justice Department's antitrust top post could raise cause conflict of interest issues given her time successfully defending Google against antitrust action by the state of Texas in 2010.

"Among other things, Hesse would presumably have to recuse herself from the active monopolization case against Google, the biggest anti-monopolization case in 20 years," The American Prospect's David Dayen noted.

According to The Prospect and The Intercept, "Juan Arteaga, another Obama Justice Department veteran who defended JPMorgan Chase and several other financial firms in fraud cases and represented AT&T in its merger with Time Warner, was also being considered but was more likely to be appointed deputy assistant attorney general in the antitrust division."

While the progressive groups' Monday letter does not name either Hesse or Arteaga, the organizations make clear that they oppose potential nominees with "ties to dominant corporations in the industries they will be tasked with overseeing—particularly in regard to the technology sector."

Zephyr Teachout, an associate professor of law at Fordham University and a prominent critic of tech monopolies, echoed that message in an interview with The Prospect.

"Bringing in anybody from Big Tech to a leadership role in antitrust is a political, policy, and managerial disaster," Teachout said. "We know how the revolving door works. The ideology of big companies shapes the ideology of government... Nobody out there thinks Obama's administration was strong on antitrust. There's no need to go back to a weak, ineffective regime."

In a blog post over the weekend Elias Alsbergas and Andrea Beaty of the Revolving Door Project—one of the signatories of the progressive letter—warned Biden against picking Hesse or Arteaga to lead the DOJ's antitrust division, arguing such a move would run afoul of the "popular mood" in favor of curbing the immense power of tech monopolies.

"The vast majority of Americans believe that the monopoly power of tech companies is a major problem for the economy and a corrupting political influence," Alsbergas and Beaty wrote. "Embracing the trust-busting zeitgeist by appointing strong, uncaptured antitrust enforcement officials would make good on Biden’s promises, and have significant popular support."

Read the progressive groups' full letter:

Dear President-elect Joseph R. Biden, Jr.,

The below undersigned organizations represent millions of Americans concerned about the concentrated power of dominant technology corporations. We are hopeful that your administration will continue and expand the bipartisan effort to hold these companies accountable for violations of our antitrust laws and look forward to working together to address the broad range of harms posed by Big Tech.

As you prepare to take office, we urge you to avoid appointing to key antitrust enforcement positions individuals who have served as lawyers, lobbyists, or consultants for Amazon, Apple, Facebook, and Google. Instead, we encourage you to appoint experienced litigators or public servants who have recognized the dangers of, rather than helped to exacerbate, these corporations' market power.

American democracy is in crisis, and it is in some ways a result of social media corporations who have killed local newspapers, and structured their business models to engage, radicalize, and addict users so they can monopolize ad markets. Currently, the antitrust defense bar has a view of antitrust law that encourages these kinds of dangerous business models.

Indeed, the antitrust defense bar currently reflects a view that is more in step with President Reagan's approach to antitrust enforcement, rather than the progressive approach to antitrust enforcement that your campaign embraced. Such an approach at the antitrust agencies will subvert President-elect Biden's agenda of restoring power to workers, communities, and small businesses. The public also believes that dominant technology corporations like Facebook and Google already have too much power and influence in Washington. These corporations have massively increased lobbying and campaign spending in recent years, and Facebook and Amazon each spend more on lobbying than any other company in the country. Recent polling conducted by Pew Research Center showed that nearly half of Americans want to see Big Tech brought under more regulatory control, and a poll by Demand Progress found majority support for the antitrust suit against Google.

As you know, momentum to address the broad range of dangerous social and economic challenges posed by monopolization in digital markets is growing by the day—particularly in the aftermath of the attack on the U.S. Capitol, which was fostered by Facebook and YouTube’s intentional amplification of sensationalist, conspiratorial content. The House Antitrust Subcommittee recently completed a historic investigation into the monopoly power of Apple, Amazon, Facebook, and Google and found bipartisan support for legislative and regulatory recommendations to rein in their power. The Department of Justice recently joined with state Attorneys General to file a historic antitrust suit against Google, and bipartisan groups of state AGs have filed two additional suits against Google. In addition, the Federal Trade Commission and numerous states filed antitrust suits against Facebook, and the FTC is reportedly investigating Amazon and Apple. Recent polling shows that substantial majorities of Americans agree that your administration should not appoint individuals who have worked on behalf of dominant technology platforms while these investigations and court cases are pending.

With your historic election, and the groundbreaking mandate Americans have entrusted you with, you face the challenge of not only rebuilding the country, but also rebuilding trust in government. We believe that appointing antitrust enforcers with no ties to dominant corporations in the industries they will be tasked with overseeing—particularly in regard to the technology sector—will help re-establish public trust in government at a critically important moment in our country’s history. We look forward to working with your administration to ensure powerful technology corporations are held accountable for wrongdoing in the months of years ahead.

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