What Khan Didn’t Answer This Morning

July 13, 2023

Republicans in this morning’s House Judiciary Committee hearing raised the right questions but did not manage to penetrate Federal Trade Commission Chair Lina Khan’s smooth and lawyerly shell.

Chair Khan successfully deflected on her ethics, on her losing streak in court, and her innovation-killing policies.

Rep. Harriet Hageman poked at the disparity between Khan’s commitment to ethics, Khan’s defiance of the recusal recommendation of an ethics official, and her denials of any recusal issues in prior hearings. 

What Rep. Hageman got in return was the same, almost featureless style of denials and evasions on display before the committee on the day before from FBI Director Christopher Wray. The results of this hearing remind me (trigger warning: boomer reference alert) of the famous Joey Bishop/Imogene Coca skit.

The lowest moment in the hearing came when one Democratic congressman accused the Republicans of having an animus against Khan on racial grounds. The fact that Chair Khan is executing the most radical agenda in government, policies not anchored in law, precedent, or even economic logic, seemed to Democrats to be beside the point. 

Nevertheless, some lasting points were scored by Republicans.

Chairman Jim Jordan focused on the FTC’s request to Twitter that it provide the names of any journalists it had communicated with. Imagine if a Republican administration had asked that of any other social media company. But in this case, it was just a polite request for information. Got that?

Rep. Darrell Issa told Chair Khan “you’re a bully” with a “half-a-billion dollars” to spend. He sought any reason why Illumina, which has a market cap that’s 10 percent of Pfizer’s, should be prevented from reacquiring Grail to develop a cancer test – denied by FTC on competitive grounds – for a technology and market that doesn’t yet exist.

Issa said: “If cancer patients die because you blocked the merger … where is the consumer benefit?”

Rep. Ben Cline asked why so many long-time, senior FTC officials and staffers are fleeing the agency, including 71 senior attorneys from 2021-2022. Just normal churn, as it turns out, for an agency that is a joy to work at. Committee Republicans missed the opportunity to drill down on why the FTC in OPM’s annual, federal employee survey found the agency went from among the best to the worst. Or why FTC’s employees now give Khan low marks for “integrity.”

Rep. Kevin Kiley was perhaps the most effective in questioning Khan. He noted her 0-4 losses in antitrust trials, most recently losing before a Biden-appointed judge. The average win rate for the FTC in merger trials is 3-1. 

“Are you losing on purpose?” Kiley asked.

Kiley pointed to Khan’s remarks at a conference in 2022 that if “there’s a law violation” and agencies “think that current law might make it difficult to reach, there’s a huge benefit to still trying. Khan added that any courtroom losses would signal to Congress that lawmakers need to update antitrust law.

“I’m certainly not somebody who thinks that success is marked by a 100 percent court record,” Khan had said.

Or even a zero percent court record on merger trials. 

Overall, Republicans are going to need to sharpen their skills the next time they have an opportunity to pin down the slippery chair of the Federal Trade Commission.