Trump administration faces antitrust enforcement dilemma

WASHINGTON — Donald Trump will inherit a Biden administration legacy of aggressive antitrust enforcement through the Justice Department and Federal Trade Commission — an approach that legal experts said Trump himself sowed in his first term and has split his party over the last four years.

The Biden administration has major antitrust litigation against tech giants like Google and Apple, credit card company Visa, as well as concert venue company LiveNation and real estate company Realpage. At the same time, the Biden administration’s approach has repeatedly riled some in Trump’s camp, particularly FTC Chair Lina Khan.

Rebecca Allensworth, an antitrust law professor at Vanderbilt University, said that Trump has not been a “traditional” Republican around antitrust and competition issues, particularly in his criticism of large tech companies.

“It’s not as if there’s this clean story where Trump is pro-business. Trump is a typical Republican, where he’s going to be very laissez faire, and Biden comes in with Bidenomics, vindicating more kind of populist goals. And then when we go to Trump, we’re going to go back to the laissez faire,” Allensworth said.

Those conflicts could play out in the first few months of the administration as acting officials make decisions around existing antitrust lawsuits and the White House pushes to confirm officials at the Justice Department and FTC.

Republican rebukes of Khan include a report from the House Judiciary Committee last week accusing her of targeting Elon Musk for his political views after the acquisition of X, the social media platform formerly known as Twitter. The Judiciary staff report alleged Khan pushed through a consent decree and abused the FTC investigative authority to harass the company after the acquisition.

House Oversight and Accountability Chairman James Comer, R-Ky., also issued a staff report last week that accused Khan of abusing her authority to help the Biden administration, buoying campaign talking points and appearing at political events.

“It’s now clear that Chair Khan will stop at nothing to accomplish the radical left’s desired ends,” Comer wrote in a press release accompanying the report.

Musk, a close ally of Trump, posted last week on X that Khan “will be fired soon.”

At the same time, numerous Republicans have praised antitrust moves made by the Biden administration, such as its suits against Google and live events giant LiveNation.

Trump’s own Vice President-Elect J.D. Vance praised Khan’s stance on big tech companies in an interview with CNBC in September.

“I share her view that we should be concerned about big tech companies and some of the mergers that lead to the censorship of American citizens,” Vance said.

Before accepting the vice-presidential nomination, Vance praised Khan’s work, calling her “one of the few people in the Biden administration that I think is doing a pretty good job,” at a February antitrust conference.

In a May interview, Sen. Josh Hawley, R-Mo., praised “a nice continuity” between antitrust enforcement against tech giants in the first Trump administration and the Biden administration.

“I feel like they’ve been pretty, pretty strong on antitrust in terms of enforcement. I think there’s a lot more that could be done. That’s something that I think has been a bright spot, and I certainly hope the next administration will continue,” Hawley said.

The support of senators like Hawley will be key to getting Trump’s preferred nominees in place at both the DOJ and FTC, according to George Washington University Law School professor William Kovacic, who served on the FTC from 2006 to 2011 and was chair from 2008 to 2009.

Kovacic said that flipping the Senate is an “enormous advantage” for Trump to get his preferred nominees in place. As of Friday, Republicans will have at least 53 seats in the chamber next year.

Kovacic said changing FTC policy could still take months, even if Trump names another head commissioner on the first day of his administration. Until the Senate confirms a commissioner to replace Khan — whose term ended in September — Republican members would not have a majority.

Breakups and mergers

Trump himself has expressed reluctance to break up Google. At an event in October, Trump said forcing Google to sell part of its business could “destroy the company.”

But Kovacic said it’s unlikely that a new Trump administration would back off entirely.

“In certain areas, I think we can predict, generally, a continuity of policy, without regard to whether Khan stays or goes” — particularly in the tech sector, he said.

Kovacic pointed out that Trump’s antitrust enforcers filed one of the cases against Google and Meta and started the investigation into what eventually became the case against Apple in the first term.

“I cannot readily imagine them pulling the plug on those cases, because you have this coalition that wants that kind of scrutiny to continue,” Kovacic said.

Kovacic said a throughline for both the Biden administration approach to antitrust and conservative criticism of big tech companies is that a traditional antitrust approach that emphasizes prices is not enough.

Biden administration cases have discussed concerns around competition for small businesses and protection for local communities, while conservatives have criticized tech companies for allegedly censoring conservative voices online — both things have little to do with prices.

However, he pointed out that Republican commissioners on the FTC have objected to several of the agency’s moves and rulemakings and could reverse them in the second Trump administration, including its rule banning noncompete agreements.

Kovacic also said that the Biden administration’s more aggressive approach on mergers — suing to stop them rather than accepting settlements to lessen the antitrust problems created by a deal — could fall by the wayside for both the FTC and DOJ.

“The two agencies have created an environment in which deal making is more difficult, and it’s easy to imagine that the agencies will do several things to make deal making a bit easier,” Kovacic said.