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Barr’s Interest in Google Antitrust Case Keeps It Moving Swiftly

WASHINGTON — For months, lawyers at the Justice Department have been marshaling their forces for a possible antitrust lawsuit against Google, spurred on by the personal interest of Attorney General William P. Barr.

The day-to-day digging of a federal antitrust investigation rarely rises to the level of the attorney general or the deputy attorney general.

But under Mr. Barr, the agency has made top priority of looking into the country’s biggest tech companies. He receives regular updates on the Google case from an aide, according to several people close to the investigations, while an official in the office of his deputy, Jeffrey Rosen, oversees the investigations into tech companies.

In the latest sign that the Justice Department is moving swiftly, staff members appear to have begun drafting a case memo to test its legal argument, three other people connected to the case said. The agency has assigned a growing number of employees to the inquiry, and it has brought in an economic expert who could testify at a trial. The details of the internal maneuvers were gathered from interviews with more than 20 people, most of whom would speak only anonymously because the deliberations were private.

The attention from top officials shows the high stakes for the Justice Department and Mr. Barr, and may draw fire from critics who say it shows how the agency has become politicized. President Trump has repeatedly chastised the big tech companies, arguing in part that they silence conservative views. On Wednesday, a lawyer for the department, testifying as a whistle-blower, told the House Judiciary Committee that the agency had pursued antitrust investigations either because of Mr. Barr’s personal animus against an industry or the president’s political whims.

Mr. Barr, who has repeatedly said publicly that the tech industry’s power required examination, is expected to decide in the coming months whether to file a lawsuit accusing Google of abusing its power in the market for advertising technology and search products. A successful suit against the company could win plaudits from Mr. Trump. It could also reshape Google’s business, transform a large chunk of the economy and perhaps even end the era of unfettered growth in Silicon Valley.

But a loss in court could embarrass the Justice Department — which suffered an antitrust defeat in 2018 when it challenged AT&T’s purchase of Time Warner — and lead to accusations that the case was based on politics, not the law. It could also reinforce the tech industry’s power.

Deciding not to pursue the case may prove problematic, too: The Federal Trade Commission faced a flood of criticism in 2012 when it decided not to sue Google.

“I think the prevailing winds right now are winds that would result in more criticism if they decided not to bring a case than if they brought a weak case and lost,” said Charles James, who led the Justice Department’s antitrust division in the early 2000s.

Brianna Herlihy, a department spokeswoman, declined to comment on the tech investigations. In a separate statement, she said the agency “strongly disagrees” with the claims of politicization made at Wednesday’s hearing.

Julie Tarallo McAlister, a Google spokeswoman, said the company continued to cooperate with the Justice Department, “and we don’t have any updates or comments on speculation.”

The Google investigation began last year, shortly after the Justice Department and the Federal Trade Commission divided up responsibility for investigating antitrust complaints about the major tech firms. In addition to concerns about Google’s control over the software that delivers online ads to consumers, the agency has been examining allegations that the company abused its dominance over search, several of the people close to the investigation said.

The department’s investigators have fanned out over the media, tech and advertising industries, gathering evidence from companies that compete with Google. Antitrust inquiries often take years, but this one has moved unusually fast under Mr. Barr.

The agency recently hired 10 to 15 tech fellows to work on the investigation, one of the people close to the case said. The part of the antitrust office that is overseeing the inquiry, Technology and Financial Services, has been told that it will not be taking on any new matters, a sign that it has narrowed its focus to Google, one person said.

ImageAttorney General William P. Barr is expected to decide this summer whether the evidence gathered by the agency is enough to warrant a lawsuit against Google.
Credit…Erin Scott/Reuters

Officials have spent recent months trying to recruit a litigator from a law firm to join the team for the case, a practice that is not unusual for major antitrust cases. David Boies, for example, was the star of the government’s 1990s lawsuit against Microsoft. The current search was reported earlier by Bloomberg News.

The Justice Department has also hired an economic expert to work on the investigation, a standard but critical step, two people familiar with the matter said.

Hired economists play a central role in the courtroom during an antitrust case, making sense of complicated data and economic principles for a judge or jury. It was not immediately clear which expert or experts had been hired.

A case against Google would almost certainly stretch on for years, and a trial is far from guaranteed: Companies frequently settle with federal prosecutors, and Justice Department staff could recommend against going to court. After the Justice Department began pursuing Microsoft in the early 1990s, for example, a final settlement was reached years later, in 2002.

The Federal Trade Commission closed its yearslong investigation into Google in 2012 without filing any charges despite hiring a prominent litigator to work on the case. But since then, European officials have brought several antitrust cases against the company, and aspects of its business have attracted the attention of other regulators around the world.

Mr. Barr signaled early on that he would be one of them. At his confirmation hearing last year, he said that “a lot of people wonder how such huge behemoths that now exist in Silicon Valley have taken shape under the nose of the antitrust enforcers.”

Google is also under investigation by a bipartisan group of state attorneys general, who could join a Justice Department lawsuit or file their own.

Few U.S. attorneys general have paid much attention to antitrust law, a division of the Justice Department that is rarely in the spotlight. But Mr. Barr, a former lawyer for Verizon and a former board member of Time Warner, two companies that regularly navigate antitrust law, is steeped in the subject.

In August, Mr. Barr pulled Lauren Willard, a lawyer from the antitrust division, to sit within his office to act as his liaison to the cases. In October, the department hired a veteran antitrust lawyer, Ryan Shores, to head technology antitrust cases including Google and to report to Mr. Rosen, Mr. Barr’s deputy.

Mr. Shores is working closely with Ms. Willard, who is giving regular updates to Mr. Barr.

In a sign of how widely he interprets the agency’s reach, Mr. Barr said last weekend that antitrust laws could be used against companies that allegedly restricted the spread of conservative views. Mr. Trump and conservatives have become increasingly critical of tech companies, including YouTube, which is owned by Google, arguing that the companies silence conservative voices.

“One way this can be addressed,” Mr. Barr said in an interview with Fox News, “is through the antitrust laws and challenging companies that engage in monopolistic practices.”

Katie Benner contributed reporting.