Questions Jim Jordan Should Ask Lina Khan

By Robert H. Bork Jr.

July 12, 2023

As the FTC chairwoman makes her first-ever appearance before a GOP-controlled House Judiciary Committee, she has much to answer for.

Those who comforted their trembling dogs during last week’s Fourth of July celebrations should prepare for another round of fireworks to detonate on Thursday, when Federal Trade Commission chairwoman Lina Khan appears for the first time before a House Judiciary Committee controlled by Chairman Jim Jordan and the Republicans.

The marquee controversy for this hearing is the FTC’s investigation of Twitter under CEO Elon Musk. But this opportunity will be wasted if members of the committee fail to ask Khan questions about the FTC’s dysfunction — both procedural and ethical.

In the most recent Office of Personnel Management survey of government agencies, FTC employees gave Chairwoman Khan and her team low marks for “standards of honesty and integrity,” plunging the rating of the organization from first place to last among agencies. FTC employees also dropped their agency from first to last when asked if they have a “high level of respect” for its senior leaders.

Members of the committee should ask: Chairwoman Khan, how do you explain this precipitous drop in your own staffers’ respect for their agency leadership’s “integrity” during your tenure?

Khan has tried to explain this away as the friction that one would expect when a new spirit of activism is injected into a previously sleepy agency. Members of the committee should not let her get away with that answer, but should instead drill down into the facts underlying this catastrophic plunge in FTC morale.

Former Republican FTC commissioner Christine Wilson has said that with the loss of morale, “we have seen an exodus of experienced lawyers and economists.” “The FTC may take a generation to recover from this loss of institutional knowledge,” she added.

Why, Chairwoman Khan, have we seen an exodus of so many of the agency’s most talented and experienced people? Is former commissioner Wilson correct that we’ve lost a generation of expertise?

The committee should next turn to the ethical issues of recusal. In recent testimony before the Energy and Commerce Subcommittee, Khan was asked: “Are there any instances where you’ve not followed” the advice of an ethics officer? Khan answered “no.”

It has since been made public that the FTC’s ethics adviser recommended that Khan recuse herself as a judge in the case of Meta/Facebook based on her long history of derogatory statements about the company, “to avoid an appearance of partiality.” To cite just one example of her bias, as legal director of the Open Markets Institute, Khan signed a letter to the FTC expressing the opinion that any transactions sought by the company should be blocked.

Chairwoman Khan, the law requires recusal in which “the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter.” Why did you reject the advice of your ethics officer and fail to recuse yourself from the Meta case?

Moreover, why did you claim you’d never failed to follow the ethics officer’s advice in your testimony before the Energy and Commerce Subcommittee?

The case for Khan’s recusal in the FTC’s current and upcoming suits against Amazon involves even more prejudicial statements. Khan, after all, became the darling of the progressive antitrust set when she wrote a note in a law journal portraying the retailer as a monopolistic monster. Bloomberg reports that in June 2021, Khan even took it upon herself to draft lines of questioning for her FTC investigators in the Amazon case.

She should also be asked about illicit lobbying of her and other commissioners by special interests.

Disclosures by Commissioner Alvaro Bedoya reveal a pressure campaign from a consultant and former chief of staff to Senator Elizabeth Warren, Dan Geldon. Geldon tried to intimidate Commissioner Bedoya about his recognition of the FTC’s limited ability to modify the terms of a consent decree imposed on Meta by a court’s order.

Geldon apparently did not realize that Bedoya would be a stickler and follow the rules by duly revealing this pressure campaign to the public.

“Very very disappointing,” Geldon texted Bedoya. “I suspect it was obvious to you how the other side would weaponize it.” Geldon then texted Bedoya’s staff with a threat that if Bedoya had any discussions with Facebook, “it will come out and will be a scandal.” Bedoya’s office later confirmed that no such discussions had taken place, but Bedoya had to be taken aback at the threat.

Chairwoman Khan, based on Dan Geldon’s hostile communications with Commissioner Bedoya, it appears that progressive groups and consultants have commissioners’ personal contacts and are accustomed to using those for sensitive messaging. Have you or the other commissioners experienced such ex parte lobbying? If so, will you follow the law as Commissioner Bedoya did and release similar communications from interested parties that have tried to influence you and the FTC?

If House Republicans drill deep with such questioning of Lina Khan, they will provide more than a fireworks show.

Originally published at the National Review.