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Kanter-1.

Jonathan Kanter, Antitrust Partner, Cadwalader, Wickersham & Taft LLP. (Photo: New America/flickr)

The Utterly Baseless Case for Recusal of Biden Antitrust Nominee, Jonathan Kanter

Calls for his recusal aim to undercut the Biden administration's antitrust enforcement and should be rejected by DOJ.

Ben Clements

In recent weeks, Big Tech's allies, including the Wall Street Journal editorial page, have insisted that President Biden's nominee for Associate Attorney General for Antitrust at the Department of Justice ("DOJ"), Jonathan Kanter, should be recused from overseeing the department's case against Google and its investigations of other tech titans. The weakness of the case for Kanter's recusal reveals just how determined these companies are to defend the status quo.

The fight to prevent modern day monopolies from consolidating control of the digital economy is one of the most urgent challenges facing the Biden administration today.

A review of government ethics regulations, the relevant facts, and recent DOJ precedent all point to the same conclusion: there is no reasonable basis for recusal.  Indeed, any attempt to disqualify Kanter's supervision of the Biden administration's anti-monopoly investigations and enforcement actions would undermine the purposes of the ethics regulations by thwarting the government's interest in reinvigorating the antitrust laws in the face of deepening corporate consolidation of power and control over the internet.

Ethics law

Government ethics law provides three possible grounds for 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.

Even if one or more of these grounds exist, recusal is not automatic.  Instead, with respect to a financial interest under section 208, the official may participate in the particular matter if they disclose the financial interest to their appointing official "and receive[] in advance a written determination made by such official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from" the official.  Similarly, with respect to a "covered relationship" or other circumstance that would lead a reasonable person to question the official's impartiality, the official may participate in the particular matter if their agency designee determines that the "government's interest in the employee's participation outweighs the concern that a reasonable person may question the integrity of the agency's programs and operations." In making this determination, the designee focuses on six factors set forth in the regulation: (1) the nature of the relationship involved; (2) the effect the resolution of the matter will have on the financial interest of the person involved in the matter; (3) the nature and importance of the employee's role in the matter, including the extent to which the employee is called upon to exercise discretion; (4) the sensitivity of the matter; (5) the difficulty of reassigning the matter; and (6) adjustments, if any, that are viable to reduce or eliminate the likelihood that a reasonable person will question the employee's impartiality.

The facts:

No one has suggested that Mr. Kanter (or a family member or general partner) has any current financial investment or interest that would be affected by the work of the Antitrust Division investigating or prosecuting Big Tech companies.  Based on the known facts, he has no financial conflict of interest that would trigger recusal.

Nor has Mr. Kanter represented or been employed by a party named in a specific matter (or a party's representative in the matter) before the Antitrust Division involving the major tech companies.  In particular, he does not represent and has not represented the United States or Google, the parties in United States v. Google.  case.  As such, he has no access to client confidential information from the party named in the matter and no prior fiduciary relationship with a named party that would potentially conflict with the government's interest in a fair and just investigation or enforcement action.

The only potential ground for Mr. Kanter's recusal would therefore need to be based on specific circumstances that would cause a reasonable person with knowledge of the facts to question his impartiality in the particular matter.

No such circumstances exist.

Mr. Kanter has in the past represented and advocated for private-sector clients who claimed that Google engaged in anticompetitive practices. Even under the most expansive interpretation of the applicable regulation, that past work does not constitute a "covered relationship," since it did not involve a business relationship with a party or representative of a party to a particular matter currently before the Antitrust Division.  Nor would it provide a basis to question Mr. Kanter's impartiality in advocating and supporting the government's interests.

To the contrary, Mr. Kanter's prior advocacy related to Google was aligned with the government's interest.  In that work, Mr. Kanter sought to hold Google accountable for unfair and anticompetitive practices—just as the government seeks to do in the case of United States v. Google.

In any case, even if a reasonable person could question Mr. Kanter's impartiality in United States v. Google, a DOJ waiver authorizing his participation in the matter would be warranted under the six relevant factors.

United States v. Google raises critically important issues related to multiple categories of anti-competitive conduct and to the proper interpretation and implementation of federal law, and it is important that the Division's senior official be able to participate in internal Department discussions and deliberations concerning these issues, including litigation strategy. As the senior official in the Division, Mr. Kanter will bring valuable perspective and judgment to this important case.

Further, given that Kanter's views on Google are well known and will likely be front and center in his confirmation process, if he is confirmed by the Senate that will be a clear signal that both the President and the Senate have determined that he is the appropriate person to oversee the most significant and high-profile cases of the Division, including United States v. Google – a determination that should not be displaced by a strained DOJ recusal determination.

Finally, Mr. Kanter has valuable expertise and experience related to antitrust issues and particularly issues involving large technology companies. He can bring this experience and expertise to bear both within the Department and in any communications with the public. The difficulty of the task of combating modern day monopolies and Mr. Kanter's qualifications to lead that effort are precisely the reasons he was selected by the President to serve as Associate Attorney General for Antitrust in the first place.

In recent years, DOJ has routinely authorized waivers for senior officials to participate in specific matters where their value to the government outweighed any concern regarding an appearance of a lack of impartiality, including in circumstances with a more direct case for a conflict of interest than exists for Mr. Kanter. For example, in three separate instances during 2016, DOJ authorized the head of the Civil Rights Division, Vanita Gupta, the Principal Associate Attorney General, Mathew Axelrod, and the Counselor to the Attorney General, Bryan Boynton, to participate in litigation matters in which their respective prior employers represented parties.  In each case, DOJ concluded that a waiver was appropriate because the official had not personally participated in the matter in the course of their prior employment and had no continuing financial interest in their prior employer, and the matter at issue was of significant interest to the government and required the official's expertise and experience.  In the case of Mr. Kanter, not only has he had no prior involvement with the United States v. Google matter, but—unlike each of the DOJ officials who received the 2016 waivers—he has no prior employment or other relationship with either a party to the matter or a party's representative.  And as with each of the 2016 matters, the United States v. Google matter is of critical importance to the government and demands the experience and expertise that Mr. Kanter will bring as head of the Antitrust Division.   

Conclusion:

The attempt to sideline Mr. Kanter from the most important work of the Antitrust Division represents a dangerous slippery slope for the appointment of committed and experienced advocates to senior administration positions. Would the head of the DOJ's Civil Rights Division need to recuse from a case against a state notorious for restricting the right to vote just because they have previously opposed that state's voter suppression efforts? Would the leader of the DOJ's Environment and Natural Resources Division need to recuse from cases involving ExxonMobil because they have in past careers fought against ExxonMobil's tendency to pollute?

The fight to prevent modern day monopolies from consolidating control of the digital economy is one of the most urgent challenges facing the Biden administration today. Modernizing the government's approach to antitrust enforcement is key to that effort and Mr. Kanter's leadership and expertise will be essential to its success. Calls for his recusal aim to undercut the Biden administration's antitrust enforcement and should be rejected by DOJ. To the extent necessary, DOJ should issue a waiver to ensure his participation in United States v. Google.


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Ben Clements

Ben Clements

Ben Clements is a former federal prosecutor and former chief legal counsel to the governor of Massachusetts. He is currently the Chair and Senior Legal Advisor of the non-profit advocacy group Free Speech For People and the founder of Clements Law.

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