


With a split Congress , President Joe Biden has tried to enact liberal policies using executive power. Notably, the president has encouraged the Justice Department’s Antitrust Division, led by Assistant Attorney General Jonathan Kanter, to use its sweeping authority to put the government’s thumb on the scale and push forward with ethically and legally dubious antitrust lawsuits.
In Washington, Kanter has quickly become a divisive figure. Despite his past as a longtime corporate lawyer working to advance the fortunes of multibillion-dollar companies, Kanter’s appointment to lead the Department of Justice’s Antitrust Division won praise from liberals in Washington. Republican lawmakers, on the other hand, criticized Kanter’s previous work litigating on behalf of major pharmaceutical firms such as Pfizer and Cigna and tech companies such as Microsoft. They also lamented his comments slamming his former clients’ rivals, arguing that Kanter’s previous work presented a clear conflict of interest for our country’s top antitrust official.
US BLIND SPOT COULD LEAD TO CHINA'S VICTORY IN TAIWAN WARAs it turns out, Kanter’s critics were right.
Kanter has used his position of power to further the interests of his former clients, launching major antitrust investigations into companies such as UnitedHealth, a Cigna competitor, and Google, a rival to Microsoft. If launching serious investigations into the rivals of former clients sounds like a major ethical issue, you’re right. However, Kanter has ignored repeated calls to recuse himself from cases that present a clear conflict of interest, despite the fact that congressional Democrats forced his predecessor, Assistant Attorney General Makan Delrahim, who was appointed by then-President Donald Trump, to remove himself from lawsuits involving his former clients.
To make matters worse, against the advice of legal experts , Kanter has ignored long-standing norms and insisted on pursuing lawsuits that, if successful, would raise costs for consumers struggling against inflation.
Despite assuring members of Congress that he sees no need to depart from the well-accepted antitrust "consumer welfare standard," Kanter has backtracked from those statements since taking his spot at the top of the Justice Department’s Antitrust Division.
Developed by conservative legal scholars over 40 years ago, the consumer welfare standard is the bedrock of antitrust law, and it is meant to protect the public from high costs. Kanter, in his recent cases, has demonstrated a blatant disregard for how his cases could hurt consumers. He has gone so far as to criticize the government for making decisions that would cut costs for the public and has pushed the Department of Justice to file lawsuits against U.S. companies that provide good, low-cost services and products to consumers.
His failed challenge to a merger between UnitedHealth and Change Healthcare, for example, would have blocked millions from receiving more affordable, accessible healthcare. Ultimately, the judge overseeing the case ruled that Kanter’s case lacked evidence, and many of UnitedHealth’s top rivals even testified in court that the merger would not limit competition or stifle innovation. His ongoing lawsuit challenging Google, a case that one legal expert has called an " inexplicable error of judgment ," poses a threat to the online economy. It could force popular websites to shutter or adopt a subscription model, which would raise prices for consumers.
Today, it is clear that Kanter is far more interested in fighting for his former clients than he is for advocating the needs of the people. His legal track record demonstrates a clear goal to settle old scores, even if the cases he chooses to pursue could result in serious harm to consumers. Something needs to change at the Justice Department, and it needs to happen before Kanter can do real harm.
Kanter should not — and cannot — continue to weaponize the DOJ’s powers, and he needs to be held accountable for filing cases that would increase costs for consumers. At the very least, he should recuse himself from cases that present a clear conflict of interest, and if he can’t take steps to rein in his own rogue department, President Joe Biden should start looking for another antitrust enforcer.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINERMatt Mackowiak is the president of Potomac Strategy Group, a Republican consultant, a former Bush administration official, a Bush-Cheney reelection campaign veteran, and a former press secretary to two U.S. senators.