Big Tech’s efforts to push Federal Trade Commission Chair Lina Khan and Assistant Attorney General Jonathan Kanter to recuse themselves from participating in lawsuits against the companies due to prior work have no legal basis and are naked efforts to weaken agency enforcement, writes Laurence Tribe.
Last month, a United States District Court dismissed Google’s efforts to disqualify Assistant Attorney General Jonathan Kanter from investigating and suing the tech giant due to his previous private-sector work counseling against Google’s anticompetitive practices. The judge rightly saw through Google’s utterly baseless arguments.
As I previously explained in ProMarket when Google initially asked Kanter to recuse himself in 2021:
Recusal is ultimately meant to prevent an abuse of power. At the DOJ, such an abuse most often happens when an official declines to enforce the law or settles a case too easily. The recent history of the Department offers up many examples of such abuses. In this case, Google is not worried that Kanter will not enforce the law. Rather, Google is worried Kanter will enforce the law. Fair and full enforcement of the law is not improper for one of the nation’s top prosecutors; it is the job description.
The court’s recent rejection in the Google case reaffirmed, once again, that strongly supporting antitrust enforcement does not create a conflict of interest or provide grounds for recusal.
And yet, Amazon has trotted out the same groundless objections at the Federal Trade Commission. It asserts that FTC Chair Lina Khan’s past criticisms of the company are reason for recusal. This obviously unsupportable argument reflects not a merely disputable legal position but a blatantly cynical strategy to obstruct government actions aimed at regulating tech giants—which is why a judge in another recent case dismissed a similar demand by Meta to recuse Khan.
Khan’s extensive work on antitrust and her principled dedication to enforcing antitrust laws are well-documented. Her prior research on tech giants’ market power, conducted before her FTC appointment, established her as an influential voice in the field. Just as Kanter’s advocacy for antitrust enforcement aligns with his role, Khan’s expertise makes her a fitting leader in antitrust actions.
Amazon’s calls for Khan’s recusal rely on a misinterpretation of precedent and a misunderstanding of the role of FTC commissioners. Khan has not represented parties in the FTC’s current cases against Amazon, and her past work as a scholar and advocate cannot be deemed evidence of bias. The public’s interest lies in upholding equal justice under the law, not in silencing experienced antitrust advocates.
In the recent case of Facebook’s challenge to the FTC’s antitrust suit, U.S. District Judge James Boasberg denied Facebook’s motion to dismiss the case, emphasizing the FTC’s allegations that Facebook engaged in anticompetitive practices. But it was Judge Boasberg’s analysis of Khan’s involvement that warrants a closer look.
Facebook’s argument centered on Khan’s past statements and positions as a public policy analyst, law professor, and congressional investigator, suggesting that these should have led to her recusal from the FTC’s vote on the amended complaint. Judge Boasberg, however, rightly concluded that Khan’s role resembled that of a prosecutor, not a judge, in this federal case.
He referred to the 1979 D.C. Circuit decision in Association of National Advertisers v. FTC, which acknowledged that agency administrators may properly hold opinions bearing on issues they oversee before participating in a proceeding. The court’s message was clear: individuals holding strong policy views before their appointments don’t thereby demonstrate a closed mind or even an appearance of bias.
Amazon’s request for Khan’s recusal rests on premises incompatible with the broader goals of antitrust enforcement. Antitrust law aims to foster competition, consumer choice, and fair markets, not stifle successful companies or innovation. Khan’s approach to antitrust enforcement aligns with these objectives and should be viewed as an asset, not an obstacle.
The recent decision in Jonathan Kanter’s case sends a clear message that calls for recusal based on past antitrust advocacy should not and will not succeed.
The genuine challenge in antitrust enforcement lies in the revolving door between government agencies and tech giants, where insiders can potentially influence regulatory actions. Our focus should be on addressing that issue to safeguard the integrity of antitrust enforcement. It should not be on eliminating those with expertise and experience from enforcement roles on the bizarre basis that their experience aligns with the mission Congress assigned to the agencies fortunate enough to attract these rare individuals to public service.
Khan’s appointment to lead the FTC represents a significant step toward effective antitrust enforcement. Calls for her recusal undermine this crucial mission. Let’s uphold antitrust principles for the benefit of all Americans.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
