When the Trump administration filed a lawsuit against Google in October, it was joined by Republican attorneys general in 11 states. When Texas launched an antitrust suit against Google in December, it was joined by 10 other states — again, all of them led by Republicans.
But in December, when Colorado also filed a suit against Google that was highly similar to the Justice Department case, it was joined by 37 other states with a mix of Democratic and Republican attorneys general.
At the center of this divide was Democratic antitrust attorney Jonathan Sallet, one of two leading picks to become assistant attorney general for the antitrust division inside Joe Biden’s Department of Justice. Sallet, a former senior official in that division during the Obama administration, is today a senior counsel for the coalition of attorneys general going after Google in the Colorado case.
“Sallet was a key player in persuading most states to stay out of the Trump administration’s case,” Politico reported earlier this month. People familiar with those discussions confirmed the assertion to The Intercept and added that Sallet also persuaded states to stay off the Texas case, led by the state’s controversial attorney general, Ken Paxton.
“There was a reluctance to [sign on to the Texas complaint] that was political, notwithstanding the fact that the quality of the complaint was high,” said one source familiar with the decision-making who was not authorized to speak publicly. “Sallet was very much in the camp of people who considered Texas anathema.”
It’s not that Democrats objected to taking on Google’s monopoly power. The anti-monopoly movement tends to have supporters in both Democratic and Republican camps. But in general, Republican states have been far more willing to back Democratic antitrust suits than vice versa, a partisan imbalance threatening the fragile anti-monopoly coalition.
The Colorado case helmed by Sallet focuses on Google’s monopoly over internet search and the anti-competitive practices it allegedly uses to maintain and exploit its dominance. The federal case, filed under President Donald Trump but now being handled by the Biden administration, went after Google’s search monopoly as well, with the Colorado suit rehashing many of the Justice Department’s allegations. In March, Texas filed an amended complaint with four additional states, finally adding a Democratic-led state — Nevada — after months of beseeching. That case accuses Google of colluding with Facebook to unfairly siphon ad money away from publishers and is generally considered the strongest of the three.
Sallet’s stance could also hobble his confirmation. The strength of the burgeoning antitrust movement is its transpartisan politics — an unusual coalition where ultra-conservative Sen. Ted Cruz, R-Texas, can lavish praise on Lina Khan, an associate professor of law at Columbia University and an outspoken progressive who has long been critical of Big Tech. Cruz was supportive of Khan as Biden’s pick to head the Federal Trade Commission as she testified during her confirmation hearing. Sen. Josh Hawley, R-Mo., said he was “very impressed” with Khan and had no objections to her, though neither have announced official support.
The other leading candidate for head of the Biden Justice Department’s antitrust division, Jonathan Kanter, is also an outspoken progressive. His career, spent challenging Big Tech, and his willingness to work with Republicans paradoxically makes his potential path to confirmation much breezier than Sallet’s. Kanter would start with the antitrust wing of the Democratic party in his corner, while the rest are unlikely to buck Biden on a critical nominee. He would add to that tally Republican skeptics of Big Tech like Cruz and Hawley.
Sallet, by contrast, has pushed back on the transpartisan alliance. He’d have work to do to win over skeptics like Sens. Elizabeth Warren, D-Mass., or Bernie Sanders, I-Vt., who are known to prefer Kanter. Votes from the GOP antitrust wing senators such as Cruz or Hawley would likely be off the table. And without either of those factions, he would need to rely on business-friendly Republicans like Sen. Mitt Romney, R-Utah. It’s a plausible path to confirmation, but it’s narrow.
That’s before the debate over Sallet’s possible conflicts of interest is brought into the mix. After his time at the Federal Communications Commission and Department of Justice, Sallet became a partner at the law firm Steptoe & Johnson in 2017. Steptoe represents Apple and Facebook, and the White House has declined to say whether he did work for either of those accounts. Democratic senators are unlikely to accede to a confirmation vote without an answer to that question.
If Sallet has done work for Apple or Facebook, it would have broad implications for his role at the Department of Justice. Immediately, a link to Apple would implicate his approach to the Colorado antitrust case, in which he argued against attaching an app store objection to the complaint. Big Tech critics have long said that Google and Apple’s complete dominance of the only two real app stores is a blatant antitrust violation, but people familiar with the drafting of the Colorado complaint say Sallet insisted on excising it from the suit.
Instead, attorneys general around the country are taking up the issue separately, evidence that there was no lack of will for taking the issue on.
Correction: April 28, 2021
This article previously stated that Ted Cruz voted in favor of Liz Khan’s nomination to head the Federal Trade Commission. Cruz made supportive comments about Khan’s nomination, but the confirmation has not come up for a vote yet. The text has been corrected.