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Ex-White House lawyers join MS cause
WASHINGTON (AP) - Microsoft Corp. is adding to its roster of powerful allies in its
antitrust trial, with former White House counsels and two former U.S. attorneys general
set to argue that the software giant didn't violate any federal laws.
These lawyers aligning themselves with Microsoft in a legal filing this week also include
the general counsel for AT&T Corp. when it agreed in the 1980s to a breakup as part of
another Justice Department lawsuit.
An industry trade group, the Washington-based Association for Competitive Technology,
confirmed it has been invited to file a ''friend of the court'' brief on behalf of
Microsoft.
The association will argue that federal antitrust laws should protect consumers -- not
Microsoft's rivals -- and that the company's aggressive behavior, ''far from being illegal
is essential to the continued health and growth'' of the industry, said Jonathan Zuck, the
group's president.
''There is really no bright line between tough and vigorous and fair competition in the
interest of consumers and tough but unfair competition,'' Lloyd Cutler, a former counsel
to Presidents Clinton and Carter who was hired by the industry group, told The Associated
Press. ''Microsoft's actions fell on the lawful rather than the unlawful side of the
line.''
A Justice Department official declined to comment on the trade association's arguments.
The government did not identify whom it invited to write its brief. Experts have
speculated on former federal judge Robert Bork, University of Iowa professor Herbert
Hovenkamp or Washington antitrust lawyer Richard G. Taranto.
Along with Cutler, others supporting Microsoft now include Boyden Gray, counsel to
President Bush until 1993; Griffin Bell, attorney general under Carter and a former
federal appeals court judge; Howard Trienens, the former AT&T lawyer; and Nicholas
Katzenbach, attorney general under President Johnson.
In an unusual twist, Katzenbach had worked side-by-side with lawyer David Boies for IBM on
a similar antitrust lawsuit by the government during the 1970s. Boies now is the lead
trial attorney for Justice against Microsoft.
''It's a mix of Democrats and Republicans, a politically diverse group,'' said William
Kovacic, an antitrust expert at George Washington University. ''Part of the message it
sends is, even Democrats don't have to like this case, that there are lots of thoughtful
people who don't find this case attractive.''
The latest round of legal filings, expected Tuesday, will argue about which antitrust laws
Microsoft violated, if any, during the Internet software ''browser wars'' of the last
decade.
The trial judge has already found that Microsoft, whose Windows software runs most of the
world's personal computers, abused its monopoly power during its battle with the former
Netscape Communications Corp.
''It's going to be very difficult to convince this judge, based on what he's already said,
that Microsoft didn't violate the law,'' said Marc Schildkraut, who investigated the
company in the 1990s while at the Federal Trade Commission.
Courtroom arguments are set for Feb. 22, though secret settlement talks continue in
Chicago. At a high-tech conference in Europe, Microsoft Chairman Bill Gates declined to
comment on the antitrust case but said, ''There's a good mediation process going on.''
Any decision about Microsoft's future -- such as prospects for a court-ordered breakup --
aren't expected in Washington at least until summer. But Trienens' role draws renewed
attention to those questions, since he opposed AT&T's breakup through its trial but
finally agreed to it in a consent decree. Microsoft also has said it strongly opposes any
breakup.
U.S. District Judge Thomas Penfield Jackson, the trial judge, asked Harvard law professor
Lawrence Lessig to file a third brief this week on behalf of the court.
Microsoft had successfully challenged the judge's appointment of Lessig in December 1997
as a ''special master'' to look into important technical issues in a related case. The
company accused him of bias and cited an old e-mail message in which Lessig told Netscape
he had ''sold my soul'' by installing Microsoft's Web browser software.
Zuck, who has been an ardent defender of Microsoft throughout the trial, said the company
agreed to allow his organization to file its brief about a month ago.
Although Microsoft is the largest member of the trade association, Zuck said he raised the
money for lawyers -- estimated to cost hundreds of thousands of dollars -- from private
contributions from other high-tech companies. He declined to specify how much was spent.
Copyright 2000 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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