Manuel Balce Ceneta/AP Photo
The Antitrust Division of the Department of Justice expects to be busy, as economic conditions resulting from the pandemic are likely to trigger a merger frenzy.
In 2014, Joe Lieberman, who had recently wrapped his fourth and final term as U.S. senator from Connecticut, sat down for a conversation with Bill Kristol. Lieberman remarked that the highlight of his political career was getting the call to become Al Gore’s running mate in 2000, and he explained how that deal got done. He explained how Warren Christopher, the former secretary of state who was Gore’s chair of the vice-presidential selection committee, put him on the short list, and told him about the invasive vetting process. “It’s like a medical procedure without an anesthesia,” Christopher told Lieberman.
Jamie Gorelick, the close confidant of Attorney General Merrick Garland, led the vetting team. And her staff was asking for a lot of information. So Lieberman turned to a trusted ally for assistance. “I actually had a friend named Jonathan Sallet who was in between jobs, a lawyer,” he said. “I realized they were asking for an enormous amount of personal information, financial. I needed somebody really to organize this. So we quietly hired him for not very much and he did a great job at pulling everything together.”
Now, Sallet, who helped his friend two decades ago, is in line for a position that could see him cross paths with both Gorelick and Lieberman again. The Prospect noted on January 28 that Sallet was a dark-horse candidate to become the next assistant attorney general for antitrust, a closely watched position in the Biden administration. Last week, Politico reported that Sallet, who served in the Antitrust Division during Barack Obama’s presidency, was being vetted for that top job.
Sallet came out of what was a fairly disappointing antitrust team under Obama with more of a reformist posture. He has had some notable successes against telecom and health insurance companies, and is actively involved in an antitrust case against Google, one of the first major government anti-monopolization cases in two decades. But some fear that Sallet is too associated to an old mindset on competition policy, and a cast of characters that time, and the state of the world in market concentration, has left behind. One of those figures who could weigh him down is Joe Lieberman, who has not exactly endeared himself to Democrats for the past 20 years.
Lieberman is now a lobbyist who has worked for companies like the Chinese telecommunications company ZTE. But the law and lobbying firm he works for, Kasowitz Benson Torres, also represents Google, which is currently facing a lawsuit brought by the same Justice Department Antitrust Division that Sallet would be running. As recently as 2016, Kasowitz Benson Torres touted its work for Google in a patent case.
Meanwhile, Gorelick, whom Sallet worked with in vetting Lieberman, was hired by Google to specifically beat an antitrust case, which was successful. Gorelick also sits on the board of Amazon.
It’s unclear how much contact Lieberman and Sallet currently have. Lieberman’s executive assistant, Vernell Glover, told the Prospect that the former senator was traveling and unable to comment.
The anti-monopoly reform world is of mixed opinion about Sallet. His history in Obama’s Justice Department has given some pause. At DOJ, he worked with Renata Hesse; critics of Big Tech were alarmed to find out that she was in contention for the Antitrust Division job in January, due to her prior work for both Google and Amazon and Big Pharma. After forceful pushback, Hesse is no longer in contention. In 2018, Sallet collaborated with on a Yale Law Review article, “Unlocking Antitrust Enforcement,” with Fiona Scott Morton, the Yale law professor who revealed last year that she had consulted for Apple and Amazon. Sallet doesn’t appear to have ever worked for a tech platform, though he did work briefly at Steptoe & Johnson, which has represented Apple and lobbied for Facebook in the past.
On the other hand, some see Sallet as having shifted his views since the Obama years to a more aggressive posture on economic concentration and Big Tech in particular. As counsel at the Federal Communications Commission, Sallet helped push through net neutrality legislation. People who worked on that rule gave Sallet credit for understanding its technicalities and maximizing its potential. The experience gave Sallet a lot of champions among net neutrality advocates and on Capitol Hill; Rep. Don Beyer (D-VA) recently called him “a tremendous talent” and “an excellent public servant.”
Later, as part of a think tank, Sallet wrote a short paper entitled “Louis Brandeis: A Man for This Season,” arguing for decisive, Brandeisian action against monopoly power. Sallet also gets credit for helping to block two major health insurance mergers and the proposed Comcast/Time Warner Cable deal at the end of the Obama administration.
The anti-monopoly reform world is of mixed opinion about Sallet. His history in Obama’s Justice Department has given some pause.
For the last two years, Sallet has been advising the attorney general of Colorado, Phil Weiser, on a 38-state antitrust case against Google that was filed last December. The case focuses on Google’s dominant position in internet search and search advertising, including specialized search for things like local restaurants and shops, where the states argue that Google made it harder to find local aggregators from their site. (A recent study showed that two-thirds of all Google searches ended without a click, as the site presented the information on the search page.)
But some critics see the Colorado case as a less forceful, derivative version of an existing action against Google, driven by the attorney general of Texas, Ken Paxton, and ten other states. Jonathan Kanter, a lawyer who helped design that more far-reaching case against Google, is the other main contender to run the Antitrust Division, after Biden aide and former Federal Trade Commission member Terrell McSweeny took herself out of the running.
Between Sallet and Kanter, you can see a direct comparison between the key advisers on two antitrust actions that would not be dissimilar to the actions they would take in office. (Outside of Big Tech, Kanter did represent health insurers as legal counsel, though tech cases have been seen as the yardstick to measure candidates for the Antitrust Division.)
The Texas case, more associated with Kanter, zeroes in on the auctions for online advertising markets, finding that Google joined a cartel with Facebook to fix prices and invade privacy. Google received reams of user data from WhatsApp, Facebook received special treatment for selling its ads, and in exchange both parties agreed to divide the market for online advertising rather than compete with one another. Price-fixing cases are much easier to win under existing antitrust doctrine.
By contrast, the Colorado suit, which Sallet authored, breaks little new ground, though it’s useful in the depiction of Google blocking competitors in search markets on the cusp of being established, like those for internet-enabled automobiles or smart speakers.
Complicating Sallet’s return is the recent revelation of internal documents in a potential Google monopolization case nearly a decade ago at the Federal Trade Commission. At that time, commission staff looked at the same smartphone contract at issue in the Justice Department’s current case against Google, and saw the basis for a lawsuit. But the economists on staff rejected the argument, and the political leadership voted it down.
Sallet was at DOJ at the time, and the Antitrust Division declined to take up the Google case after the FTC punted. More generally, the failure to prosecute Google was a product of an Obama-era leadership class on antitrust that Sallet and his close associates are squarely in the middle of. Critics say the mindset of these officials, epitomized by the consumer welfare standard, is too narrow to get at Big Tech’s multifarious harms. And Sallet reflects that era of thinking. Some anti-monopoly reformers think it would be best to give someone else a turn.
Whoever becomes the Antitrust Division chief will be busy, as excess cash at large corporations, significant distress from the pandemic at companies with smaller market share, and an expected economic boom are all likely to trigger a merger frenzy. In the past four months, merger filings to the FTC have doubled. A $25 billion railroad merger was announced last week, and Microsoft is looking to expand its push into social media with the potential purchase of Discord.
Most reformers agree that the choice between Sallet and Kanter is one between good and great. But they think the times call for someone great.
UPDATE: A previous version of this story stated that Sallet worked with Fiona Scott Morton at the Justice Department. The two did not serve in the Department at the same time. Scott Morton and Sallet did collaborate on a Yale Law Review article in 2018. The Prospect regrets the error.
