Another major concern for the department is the likely expense of a court battle with the two companies, each of which has a market value exceeding $1 trillion. That issue became more fraught this week when Sen. Joe Manchin (D-W.Va.) torpedoed Democrats’ Build Back Better package, which would have given DOJ a $500 million boost for antitrust enforcement.
Senate Democrats vow to hold a vote on the $1.7 trillion bill anyway in January. The department could also get extra cash in other upcoming legislative packages, such as a Senate-passed bill to aid U.S. competition with China.
For now, however, DOJ is weighing what antitrust cases can move forward with its current funding, though the people emphasized that decisions will be based on the legal merits.
Arlen Morales, a Justice Department spokesperson, declined to comment. Google and Apple didn’t immediately respond to a request for comment.
Google and Apple probes: The department has been investigating Google’s advertising technology business and Apple’s lucrative App Store since 2019, probes that continued even after DOJ sued Google in October 2020 over its online search business.
During the past year, the department’s team has drafted an antitrust complaint focused on Google’s dominance of the technology used to buy and sell the online display ads that fund many websites. The complaint is similar to one that attorneys general in Texas and other states filed last year, though the Justice Department’s version has some differences.
Separately, antitrust prosecutors have been examining Apple and its tight control over the ecosystem for iPhone and iPad apps. DOJ attorneys virtually attended the May trial between Apple and Fortnite-maker Epic Games to glean any additional witnesses or evidence they might want for their probe. They also have scrutinized a September ruling from U.S. District Judge Yvonne Gonzalez Rogers, who found that Apple wasn’t violating federal antitrust law but declared its limits on developers’ communications with customers a violation of California state law.
Who will decide, and when: Top DOJ decisions could make their final decisions on suing Google or Apple in the spring of 2022, the two people told POLITICO.
Who will make that call also remains up in the air. DOJ ethics officials haven’t yet determined whether Assistant Attorney General for Antitrust Jonathan Kanter must recuse himself from those cases because of his previous work for critics of the two companies, they said.
Either case would be expensive. Texas alone will require $43 million to pursue its piece of the multistate antitrust suit against Google, state Attorney General Ken Paxton has told legislators.
Speaking of money: Congress’ fiscal 2022 funding bill for the Justice Department proposed giving antitrust prosecutors an extra $16 million.
That money would help ease some of the DOJ’s budget crunch. But it could also get swallowed up by cases already in litigation, including the Google search suit and lawsuits aiming to block a major sugar merger and a proposed union between Penguin Random House and Simon & Schuster.