Biden picks a third trustbuster for his administration, putting Big Tech on notice

It took seven months, but progressives got exactly what they asked for: Wu & Khan & Kanter.

President Joe Biden said Tuesday that he had selected Jonathan Kanter to serve as the Justice Department’s assistant attorney general for antitrust, the final piece of the trifecta that progressives have championed to reinvigorate antitrust enforcement after the alleged failures of the Obama years.

In March, Biden installed Tim Wu at the White House, a move that raised cautious optimism among anti-monopoly advocates that Biden, long-viewed as a centrist from corporate-friendly Delaware, might take the issue of corporate power more seriously than his Democratic predecessor. The March nomination of Lina Khan to the Federal Trade Commission heartened them more.

Now Khan’s elevation to FTC chair and the nomination of Kanter to helm DOJ’s antitrust enforcement is electrifying Democrats who have come to view former president Barack Obama’s administration as too beholden to Wall Street, corporate giants like Google and the lawyers, lobbyists and policy wonks who work for them.

It's the fulfillment of a campaign that had even been emblazoned on a coffee mug as a progressive calling card: Wu & Khan & Kanter.

Sarah Miller, executive director of the anti-monopoly group American Economic Liberties Project, said Kanter’s nomination shows Biden intends to make up for the Obama administration’s lapses on antitrust with tough enforcers.

“Jonathan Kanter has the experience, values, and intellectual foresight to ensure that antitrust enforcement under the Biden administration delivers for working people, small businesses, and communities,” Miller said.

The pick signals that Biden — who steered clear of taking a position on antitrust during his campaign — is adopting the views close to those of Sens. Elizabeth Warren (D-Mass.) and Amy Klobuchar (D-Minn.), who based their 2020 presidential runs on the need for greater antitrust enforcement.

Warren’s proteges have taken pivotal spots throughout the administration; the addition of Kanter, who maxed out a donation to her campaign and has provided her advice on antitrust issues, notches yet another from her orbit.

Anti-Google crusader

Progressives backed Kanter to helm the DOJ’s antitrust division because of his work over the past decade representing companies, including Microsoft, that lodged antitrust complaints about Google. His advocacy on the issue helped spur four recent antitrust cases against the search giant over its power in online search and advertising.

Warren and Klobuchar heralded the pick.

“He’s been a leader in the fight to check consolidated corporate power and strengthen competition in our markets,” Warren said.

Rep. Pramila Jayapal (D-Wash.), the vice chair of the House Judiciary antitrust subcommittee and leading progressive in the lower chamber, said she welcomes Kanter's efforts to “rein in Big Tech's anti-competitive practices, put an end to monopolistic practices, and promote fairness.”

If the Senate confirms him, Kanter would head the DOJ division that filed an antitrust suit against Google in October, the first such federal complaint against a major tech power since the Clinton administration attempted to break up Microsoft in the 1990s. But he may not have an untroubled path: White House ethics officials had raised red flags about hiring antitrust officials with a history of representing critics of the tech giants, as POLITICO has reported.

A White House official declined to comment directly on the recusal issue Tuesday, saying only “we are confident moving forward with Kanter for the position given his track record and expertise.”

Google declined to comment on Kanter’s selection for the post. The search giant is in an especially acrimonious rivalry with Microsoft, which — despite being one of the world's wealthiest companies — has staked out ground in D.C. as a critic of the dominant online platforms.

From Big Law to Big Tech critic

Kanter began his career as a staff attorney at the Federal Trade Commission before moving to private practice. A protege of Rick Rule, a Republican who served as President Ronald Reagan’s DOJ antitrust chief, Kanter represented Microsoft when it settled the Justice Department’s probe in the early 2000s and then through the company’s travails with European antitrust authorities.

He also represented companies including U.S. Airways in its merger with American Airlines, and health insurer Cigna in its failed deal with Anthem.

But he is best known for his work on tech, representing Microsoft and later clients including Yelp, News Corp. and Mapbox in antitrust fights against Google. More recently, he has also represented companies that raised antitrust complaints about Apple and Amazon.

Last year, Kanter left the law firm Paul Weiss to start his own antitrust advocacy firm, the Kanter Law Group.

His early criticism of the tech giants on antitrust grounds and support for more aggressive enforcement made him a favorite of progressives and anti-monopoly advocates, who have urged the Biden administration to eschew Obama-era antitrust enforcers when making his own picks.

The post requires Senate confirmation. Once the White House officially sends it to the Senate, the Judiciary Committee will schedule a confirmation hearing — likely sometime in September or October given Congress’s upcoming August recess.

The Team

The two earlier picks in the trio have already made their presence felt in Washington. Wu, now an adviser on Biden’s National Economic Council, authored the recent executive order on competition, which takes aim at a broad swath of industries including agriculture, airlines, broadband and banking.

Khan has already begun shaking up the FTC, holding the agency's first open meeting in decades and immediately repealing Obama-era policies that progressives believe hampered enforcement.

And they appear to be embracing the idea of being a collective force. At a party in Washington last week to celebrate the publication of Facebook expose “An Ugly Truth” by a pair of New York Times reporters, Wu was spotted carrying the mug with the now-realized motto: Wu & Khan & Kanter.