“Regardless of any decision she makes, it will be seen with an air of prejudice,” said Carl Szabo, vice president and general counsel at NetChoice, a trade association whose members include Amazon, Google and Facebook.
Should Khan bring a case against a Big Tech company alleging illegal conduct, Szabo said Big Tech firms would have precedent on their side in seeking a recusal.
Szabo pointed to a 1966 ruling in American Cyanamid Co. v. FTC, in which the court disqualified former FTC chair Paul Rand Dixon from the case due to previous service as chief counsel and staff director of a Senate subcommittee that conducted an investigation into some of the same parties and issues considered before the commission.
“The commissioners are expected to operate like judges,” Szabo said. “They are expected to apply the laws as written, not as they want it to be.”