Khan Probably Won't Recuse Self: Legislators and Experts

“What’s their basis? That she’s commented on their past? Having opinions is not a basis for disqualification,” said Sen. Richard Blumenthal, D-Conn. “If that were the case, there would be a lot of disqualification that would be totally frivolous. They’ve tried to bully the agency consistently and constantly, and I’m glad that we have a chair that won’t let them.”

Their filings are “preposterous,” said Sen. Brian Schatz, D-Hawaii. “Because the FTC chair has had opinions in the past? That’s obscene. They can’t bully the FTC.”

“If there were big, red flags, people would have brought it up during” the confirmation process, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. Cantwell said she has voted for other legal scholars who have made prior statements of opinion that didn’t disqualify them from agency matters. Ranking member Roger Wicker, R-Miss., declined comment last week.

“They can make that application, but what’s going to judge whether she’s recused or not will be the ethics of the FTC, not anything else,” said Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa. He noted he didn’t give Khan’s potential recusal significant thought during the confirmation process: “I voted for her because I want some tough action done against the lack of competition in our economy.”

Grounds for recusal are fairly narrow and specific, said Sen. John Kennedy, R-La., noting he hadn’t reviewed the specifics in the recent filings. “Do I like her skepticism about the behavior of social media in America? Yes, I do.” There wasn’t anything disqualifying “that I’m aware of” discussed during the confirmation process, said Sen. Jerry Moran, R-Kan.

It’s a “long shot” for either company to succeed, said ex-FTC General Counsel Alden Abbott, now a senior research fellow at George Mason University's Mercatus Center. It’s very difficult to get a recusal based on a commissioner’s opinions, rather than financial ties or past legal work, he said, noting opinions change. As a matter of “wise policy,” it might be good for Khan to recuse herself, he said, noting some officials remove themselves due to appearance. But legally, Khan is on solid ground, he said.

If she recuses, the remaining four commissioners -- two Democrats and two Republicans -- would vote on the matter. If the vote fails, the companies have the option of filing an administrative complaint or filing injunctive action in federal district court. Khan wasn’t present when the FTC filed its original complaint against Facebook, so the company would have to file based on an agency appeal (see 2106280057).

If there’s adjudication after an administrative complaint, grounds are “much stronger” for having Khan recused in that matter, said Abbott. As an adjudicator involving those companies, she should be recused, said George Washington University law professor Richard Pierce. As an enforcer or investigator, Khan shouldn’t be disqualified, he said: Nothing she has said or done disqualifies her from any investigatory or enforcement action. “The line that the courts draw is if you have prejudged any contested issue of fact, then you’re disqualified as a decision-maker in a case in which that issue of fact arises,” he said. But adjudication is a different matter, he said: In a criminal case, the prosecutor can voice opinions about the defendant, but the judge can’t.

Amazon cited a previous statement saying Khan’s “body of work and public statements demonstrate that she has prejudged the outcome of matters the FTC may examine during her term and, under established law, preclude her from participating in such matters.” Facebook didn’t comment. The FTC declined comment.