On November 18, the Federal Trade Commission (FTC) lost its landmark case against Meta over its acquisition of Instagram. The opinion was issued by Judge James Boasberg. The FTC spokesperson commented to the press decrying the loss as is usual agency practice. But the whole statement was far from usual. FTC spokesperson Joe Simonson told the press: “We are deeply disappointed in this decision. The deck was always stacked against us with Judge Boasberg, who is currently facing articles of impeachment. We are reviewing all our options.” This attack on Judge Boasberg aligns the FTC’s leadership with the partisan attacks on Judge Boasberg emanating from the Trump administration and its supporters.
I will not focus on the substance of the Meta case—Tim Wu has treated that subject well in the New York Times and on The Sling’s podcast. Instead, I would like to focus on how the FTC has chosen to describe Judge Boasberg and the destructive impacts that choice could have on the FTC.
To my knowledge, the FTC has never issued a statement like this impugning a federal judge’s neutrality. Doing so when there is no evidence of such a bias would always be reprehensible. But to make such a claim against Judge Boasberg is particularly counter-productive.
The FTC does not even attempt to suggest why Judge Boasberg would be biased against the agency in its statement. That is likely because the FTC’s leadership believes no such thing and is merely joining the right-wing criticism of Judge Boasberg for ruling against the administration. Because there is no substance to these allegations, I will concentrate on why attacking Judge Boasberg is counter-productive.
Judge Boasberg has served as a judge on the District Court for the District of Columbia, known as DDC for short, since 2011 and has served as Chief Judge of the district since 2023. He is one of the most highly respected district judges in the United States. Moreover, as chief judge, he is responsible for the administering DDC’s operations. He also represents his colleagues on DDC at the Judicial Conference, the policymaking body of the federal courts. In the past five years alone, he has been the assigned judge in four FTC antitrust cases according to Westlaw.
But more important than anything about Judge Boasberg specifically, DDC is the most important district court to the FTC. As the FTC’s home district court, the agency litigates in DDC more often than any other district. This year, the FTC has six cases in DDC. In the last five years, the agency has had 37 cases before the court. The other judges on this court are almost certainly paying attention to the insults the FTC chose to bestow on their colleague and chief judge.
This childish statement by the FTC therefore jeopardizes not only the agency’s credibility in front of a prominent district judge but also its credibility with the most important district court to the agency.
But it is not FTC leadership that will pay the price for this choice. The career attorneys who must litigate these cases will have their hard work put on the line because Chair Ferguson wanted to score political points with President Trump.
The FTC has a deep store of credibility with the bench. FTC attorneys are careful, professional, and deliberate in how they litigate cases. But credibility is easy to burn and hard to earn. And with each unprofessional, craven political stunt Chair Ferguson pulls with the FTC—from investigating Elon Musk’s political opponents to threatening Google over allegedly “partisan” email filtering to this attack on Judge Boasberg—Chair Ferguson burns the FTC’s credibility. Regardless of one’s views of Judge Boasberg’s Meta ruling, antimonopoly advocates should denounce this statement by the FTC.
Bryce Tuttle is a student at Stanford Law School. He previously worked in the office of FTC Commissioner Bedoya and in the Bureau of Competition.