It was never a secret that Attorney General Merrick Garland was among the key Biden administration figures opposing Jonathan Kanter’s nomination as assistant attorney general for antitrust. Ultimately, however, Garland did not get his way; the appointment went to Kanter rather than to one of the many Big Tech–allied BigLaw partners whom Garland favored. In view of Kanter’s career as a plaintiff’s lawyer, his nomination was rightly celebrated as a decisive victory by antitrust reformers and BigLaw opponents alike. But it was just one battle in a broader war for renewed anti-monopoly enforcement and a DOJ eager to build back better in every policy area.
That much is clear from the revelation that Susan Davies, a former Kirkland & Ellis partner who represented Facebook and was Garland’s onetime top choice to lead the Antitrust Division, has been heading the Office of Legal Policy (OLP) since September 3 and will be until Biden’s nominee to head that office has been confirmed by the Senate. Until just a few days ago, that fact was entirely hidden from public view, which begs some questions: How is this secrecy even possible? Was Davies secretly working at DOJ in some other capacity before September 3? And are other officials whose presence has been kept from the public secretly calling the shots within the DOJ?
We’d been hearing rumors since early spring that Davies had been placed somewhere in the Justice Department. Getting any sort of official confirmation, however, turned out to be a remarkable ordeal. We found no evidence of Davies’s employment on the DOJ website and directories. In April, we sent a Freedom of Information Act request asking for rosters of every Justice Department division and office’s leadership. In the ensuing weeks and months, we received documents from many of those offices, but nothing from the OLP (or the other divisions for which the Office of Information Policy handles requests). In June and in August, we sent additional requests for any records reflecting any agreement to recuse from policy matters on which Davies is conflicted and for her personnel forms, respectively. No word came on either of those straightforward requests.
That the FOIA is dysfunctional is no secret. This extended failure to furnish records in response to a simple request is hardly evidence of a conspiracy to withhold the information (although whether that’s really comforting from a transparency perspective is debatable). The roadblocks we encountered when we tried the DOJ’s press office, on the other hand, are less easily attributed to administrative dysfunction.
On July 26, we sent a simple query to the Office of Public Affairs: “Does Susan Davies work at the DOJ? If so, where?” Two days later, someone responded and asked, “Can you give me a little more info on what you’re looking for?” Our request had seemed straightforward to us, but we hopped on the phone to explain that we were working on a piece for The American Prospect and were looking to learn if Davies was in the building. After that phone call, radio silence. We followed up three more times over the course of two weeks, but never got an answer.
read more:
https://prospect.org/justice/whos-really-running-justice/
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