The Washington Post reports that the Justice Department “is expected to file an antitrust lawsuit against Google as soon as this month.” The Post claims that Attorney General Barr has “overruled dozens of federal attorneys who initially signaled the U.S. government was not ready to bring such a landmark case.”
Such a suit would be the product of a “competition inquiry” that, in the Post’s words, “focuses on Google’s sprawling search and advertising empire and the extent to which it harms rivals and consumers.” That “extent” is considerable, I believe. Indeed, as we noted at the time, a bipartisan group of state attorney generals, nearly 50 of them, launched an antitrust probe of Google last year.
It’s clear, however, that some DOJ attorneys oppose the pace at which Barr is proceeding. According to the Post:
This summer, more than 30 attorneys communicated their thoughts in an informal poll about the probe, and the vast majority said at the time they were not ready to file a case yet against Google, according to a third person familiar with the matter. The person said they believed only two people at the time were on board with the idea.
It seems odd that such a poll was conducted. When I was a government attorney, we didn’t take polls about when to sue. But then, we weren’t a pipeline to the mainstream media, either.
It’s too bad the informal poll didn’t include a question about party affiliation and presidential preference. I suspect that the vast majority of those polled are Democrats and/or Never Trumpers.
The Post hopes to create the impression that Barr wants to bring a suit against Google prematurely for partisan political purposes. I can’t speak to the question of Barr’s motive.
However, based on my experience working for Barr (I was part of a large, multi-firm group of lawyers that Barr oversaw during the telecom litigation of the mid-1990s), I can say that he’s an aggressive, hard-charging litigator. He pushes lawyers hard and likes to see litigation move forward.
It’s easy for me to imagine that, absent any partisan political motive (he had none in the telecom litigation), Barr would press DOJ lawyers to move faster than they feel comfortable doing. Working for Barr is a rewarding experience, but not always a comfortable one.
Naturally, I can’t say whether, in this case, the reported reservations of DOJ antitrust lawyers are well founded. I’m just saying that we shouldn’t assume they are and that, whether they are or aren’t, we shouldn’t assume that Barr’s motive in pushing ahead is political.