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“Google should focus on complying with antitrust law rather than attempting to rig the system with these unseemly tactics,” the lawmakers wrote.
Following Kanter’s confirmation in the Senate in November, Google requested the DOJ review whether he should be recused from cases and investigations involving its business. Google cited Kanter’s prior work for its rivals like Yelp in antitrust matters involving its business, and pointed to previous statements about Google’s alleged dominance to argue he’d already made up his mind on its liability.
Kanter has not committed to recusing himself from matters involving Google but told lawmakers ahead of his confirmation that he would consult DOJ ethics officials about whether he should do so. A recusal would bar Kanter from involvement in the department’s ongoing antitrust lawsuit against Google and likely any future investigations, though responsibility would fall to his deputies.
Warren and Jayapal said Google’s argument “distorts federal ethics requirements, improperly claiming that because Mr. Kanter has worked to enforce antitrust law against Google in the past, he cannot do so on behalf of the federal government now.”
They wrote that under federal ethics law and regulations, recusal is required when a person has a financial interest involving certain parties, worked for an employer or client in the past two years that is a party in a particular matter or would be deemed potentially impartial by a reasonable person with the relevant facts.
The Democrats said that since Kanter has not represented Google or the U.S., the two parties that would be named in any federal lawsuit against Google, that should not be a basis for his recusal.
“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,” they wrote. “This interpretation turns federal ethics laws—designed to prevent government officials from working against the government interest for private gain—upside down.”
Warren and Jayapal also pointed out Kanter’s broad support among his peers and members of the Senate. Before his confirmation, nine of his predecessors from both parties wrote the Senate in support of his nomination. And he gained the backing of 20 Republican senators for his confirmation.
Google is not the only tech company to seek an antitrust official’s recusal. Amazon and Facebook similarly called for Federal Trade Commission Chair Lina Khan to recuse herself from cases involving their businesses based on her past statements. Warren, Jayapal and other Democrats also urged both of those companies to back off their campaigns.
A Google spokesperson pointed to an earlier statement it provided when it first asked for Kanter’s recusal, saying, “Mr. Kanter’s past statements and work representing competitors who have advocated for the cases brought by the Department raise serious concerns about his ability to be impartial.”
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