Google Leader's Refusal to Testify Hurts Their Antitrust Case

While the big Google antitrust news is that the FTC is about to launch a formal sweeping antitrust investigation of Google, which will play out over time almost entirely behind the scenes, the big public-facing news for Google antitrust is that Google's current CEO Larry Page and former CEO Eric Schmidt are refusing to publicly testify before the Senate Judiciary Antitrust Subcommittee per reports.

There are several reasons this refusal to publicly testify is exceptionally problematic for Google.

First, Google loudly proclaims that they have done nothing wrong, that everything they do benefits users and promotes innovation, that competition is one click away, and that they have free speech rights to edit their search results as they see fit.

  • If Mr. Page and Mr. Schmidt truly believe this, they should confidently make this case to the Senate Antitrust Subcommittee for the press and world to see and hear.
  • No one should be more capable of making that case than Larry Page, the current CEO and co-founder of the company.
    • As someone who personally has testified under oath six times before the Senate Antitrust Subcommittee, I can personally attest that that Subcommittee is imminently fair and focused only on the law, truth and justice.

Second, refusing to testify, and only offering Google's lead lawyer and not any line business executives involved in search to testify, when the subcommittee legitimately wants to hear from the line executives involved in the business, signals that the company has something to hide and is stonewalling.

  • Refusing to testify before Congress under oath when the subcommittee indicated it can subpoena the witnesses and compel them to testify, in effect sends the signal that the executives are effectively pleading their Fifth Amendment right to not incriminate themselves, which is indeed every citizen's Constitutional right.

Third, refusing to testify before Congress on a legitimate public policy inquiry also sends the public signal that Google's leaders apparently believe they personally are above the law, and are unaccountable to Congress and law enforcement.

  • Google's leaders must appreciate that Chairman Kohl and Ranking Committee Member Lee would never make an idle threat of issuing a subpoena to testify, if they were not supremely confident that a majority of the full Committee, if not all members of the Committee would back the call for a subpoena.
    • To not do so would send the public signal that the Committee is afraid or intimidated by Google's power, and would send the message to the FTC and DOJ that Google would not have to fully comply with their subpoenas.
  • What is amazing here is Google apparently imagines it can win this showdown and power play with the Senate Judiciary Antitrust Subcommittee, and by extension the Senate Judiciary Committee, the Senate and the law enforcement agencies they constitutionally oversee. Not wise.

Fourth, Google must know that when Microsoft was being investigated for antitrust violations in the 1990s, then Microsoft CEO Bill Gates testified before the Senate Judiciary subcommittee along side his main antitrust accuser, Netscape CEO Jim Barksdale.

  • On what basis, can Google argue that they warrant special political treatment in a similar law enforcement investigation?


Finally, Google has branded itself as the world's champion for openness and transparency, and also for high ethical standards with its famed "don't be evil" credo that Google co-founder Larry Page has said he wants Google to be known for.

  • How can Google justify demanding openness and transparency for the government and everyone else, (to the extent that Larry Page and Eric Schmidt decided to publicly index all of Julian Assange's Wikileaks stolen documents to make them universally accessible to the world), but Google's current and former CEO are unwilling to testify openly and transparently before the people's duly elected body on an important public policy matter?

In sum, this is a watershed decision for Google and a watershed leadership decision for CEO Larry Page, in its handling of Google's proliferating antitrust problems.

  • Google CEO Larry Page can set the tone going forward by publicly and confidently testifying that Google has done nothing wrong, has nothing to hide, and then strongly rebutting its critics in the open, transparent, and ethical way Google supposedly stands for, or Google CEO Larry Page can duck accountability, and not be a public example of Google's highest public values of openness, transparency, and ethics.
  • Leadership is defined by how one handles the toughest decisions.