Department of Justice, Assistant Attorney General, Antitrust Division

Department/Agency: Department of Justice

Position:

Assistant Attorney General, Antitrust Division

Executive Schedule: Executive Level IV - Presidential Appointment with Senate Confirmation

Major Responsibilities:

Oversees enforcement of the antitrust laws
Takes action against business practices in restraint of trade, such as price-fixing conspiracies and predatory acts to preserve monopolies
Approves or rejects corporate mergers and acquisitions, based upon analysis of their impact on competition
Coordinates antitrust policies and actions with the Federal Trade Commission and State Attorneys General

Key Competencies and Preferred Qualifications:

Antitrust litigation experience
Grasp of the law and economics
Understanding of global changes in markets

Insight:

Antitrust enforcement is by its nature highly controversial, and that was no different in the Bush administration. Assistant Attorney General Thomas O. Barnett said his division targeted criminal cartels and put crooked business executives in prison for longer than ever. But critics contend the Antitrust Division was asleep at the antitrust switch during the Bush years, largely declining to enforce the civil laws that regulate mergers and acquisitions. "They don't even seem to think that monopolies are bad," Albert A. Foer, president of the American Antitrust Institute, told the New York Times in 2006. "Big is efficient and efficient is good. This is a story about how ideology has taken over the law enforcement process."

With the economy in a nosedive, the Obama administration will have to calibrate its antitrust approach to protect consumers while leaving businesses room to return to profitability. The deep downturn has triggered calls for tougher regulation, but not shook the belief that competition and growth go hand in hand. Barnett articulated such a view in a June 2008 speech: “Economic growth — or increases in the economic well-being of our citizens — is the ultimate purpose served by competition laws and policy. This is another way of saying that competition laws promote consumer welfare. This recognition means that it is crucial for us to understand the forces that promote economic growth and the ways in which competition law can help — or hinder — that growth.”

The antitrust chief relies on a large, expert staff of lawyers and economists to keep watch on businesses and the economy. Only a tiny fraction of the cases reviewed wind up in court, but that is hardly the sole measure of the Antitrust Division’s effectiveness. Industry knows that the antitrust enforcers are out there watching, and that is calculated to keep the executives honest.

Barnett took pride in pushing his staff to speed up investigations and resolve civil suits quickly, so businesses are not left hanging while the antitrust enforcers make up their mind. “We have focused a lot of time and attention on the management of investigations …. I think it is important for all involved to reach an answer quickly, and then to move forward,” he once told The Antitrust Source.

President George W. Bush’s first appointee, Charles A. James, drew criticism for letting Microsoft off the hook in a case launched during the Clinton administration. The settlement dropped the Justice Department's insistence that the company be broken up, even though an appeals court had found that Microsoft violated the Sherman Antitrust Act for bundling its operating system with its Web browser. Several state attorneys general, industry executives and consumer groups objected to the settlement, but a federal judge approved it. ''This decision is bad news for consumers, bad news for competition and ultimately will be bad news for our economy,'' Massachusetts Attorney General Tom Reilly said.

Key Relationships – Within the Department or Agency:

Attorney General
Deputy Assistant Attorneys General for economic, international, criminal, regulatory and civil cases
Foreign Commerce Section
Legal Policy Section

Key Relationships – Within the Government:

Bureau of Competition, Federal Trade Commission
Office of Multilateral Trade Affairs, Department of State
Office of Criminal Enforcement, Department of Homeland Security
U.S. Trade Representative
Deputy Under Secretary of Defense for Industrial Affairs and Installations

Key Relationships – Outside the Government:

State Attorneys General
Domestic and international corporations
International antitrust regulators
Organization for Economic Cooperation and Development
Groups representing the interests of U.S. consumers

Nomination Referred to:

Senate Committee on Judiciary

Current Position Profile:
1. Christine Anne Varney (Confirmed April 20, 2009). Former Partner, Hogan & Hartson LLP. Former Director, Board of Directors, Ryder System, Inc. A registered lobbyist for the Online Privacy Alliance 2001-2006.

Recent Position Profiles:

2. Thomas O. Barnett, J.D. (2006- 2009). Served as acting assisting attorney general in 2005 prior to his Senate confirmation. Former deputy assistant attorney general for civil enforcement. Former partner and vice chair of the Antitrust and Consumer Protection Practice Group of Covington & Burling.

3. R. Hewitt Pate, J.D. (2003-2005). Former deputy assistant attorney general for transportation and energy regulation. Partner on antitrust team for law firm of Hunton & Williams. Clerked for Supreme Court Justices Anthony Kennedy and Lewis F. Powell, Jr.

4. Charles A. James, J.D. (2001-2002). Former deputy assistant attorney general. Former chair of Jones, Day, Reavis & Pogue's Antitrust and Trade Regulation Practice. Former assistant to the director of the Federal Trade Commission and director of the FTC’s Bureau of Competition.