Over the past few weeks, the Wall Street Journal's editorial board has turned decidedly negative on President Biden's FTC chairwoman Lina Khan, despite the fact that upping the antitrust pressure on Big Tech has become one of those rare areas of bipartisan agreement.
The unfortunate drawback to bipartisan support for breaking up companies like Facebook (or at least restraining their immense market power) is that there's a group of Democratic and Republican lawmakers who are committed to doing Mark Zuckerberg's and Andy Jassy's bidding.
And now, as Congress grapples over passing their first big anti-tech antitrust package (and the White House plans with a sweeping executive order to limit the power of big business including tech by "promoting competition"), Facebook is following in Amazon's footsteps by attempting to force Khan to recuse herself from the antitrust case recently brought against the company by the FTC.
In its recusal petition, Facebook argued that Khan "had already decided the material facts relevant to Facebook's liability in the Commission's pending antitrust lawsuit and already reached legal conclusions that Facebook was liable under the antitrust laws."
It then goes on to cite repeated criticisms of Facebook and other tech companies in Khan's professional history, including her work on the Congressional investigation into large tech companies’ power, her academic writing and her role at the Open Markets Institute, an organization backed by groups that advocate for breaking up Big Tech.
Given that Khan literally wrote the playbook for attacking big tech on antitrust grounds, forcing her to officially remove herself from the case would likely hobble the government's (already limited) ability to sue, and win, against a tech giant with nearly unlimited financial resources.
Most importantly, Facebook is asking that Khan not be permitted to participate in deciding whether and how the FTC's case against Facebook should proceed. Since the two current Republican commissioners voted to oppose the FTC lawsuit against Facebook in December, Khan's recusal would leave two Democrats to vote for a new lawsuit. A tie vote means that the matter would not go forward. In other words, forcing Khan to leave the suit would be an automatic win for Facebook, allowing it to avoid anti-tech scrutiny for another generation.
The FTC initially sued Facebook in December alleging that it violated antitrust law in buying Whatsapp. Facebook of course has routinely received help from Hillary Clinton ally and Democratic super-lawyer Marc Elias in its acquisitions, including its buyout of Instagram, which the FTC itself approved.
Facebook released a statement accusing Khan of making "biased" statements.
"Chair Khan has consistently made well-documented statements about Facebook and antitrust matters that would lead any reasonable observer to conclude that she has prejudged the Facebook antitrust case brought by the FTC," said a Facebook spokesperson in a statement.
"To protect the fairness and impartiality of these proceedings, we have requested that Chair Khan recuse herself from involvement with the FTC’s antitrust case against Facebook."
Readers can find the full recusal petition below:
The FTC has so far declined to comment on Facebook’s petition. But Khan has said during her Senate confirmation hearing that she holds "none of the financial conflicts or personal ties that are the basis of recusal under federal ethics laws."