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Government Rides Harshly Over the Bills

Tough tactics by hotshot lawyers leave whatever they trample in ruins.

October 22, 1998|JAMES P. PINKERTON | James P. Pinkerton is a lecturer at the Graduate School of Political Management at George Washington University. E-mail:

Bill has a big problem. The government's hotshot lawyer, recruited from private practice just to pursue the case against him, all but accused him of perjury as he compared Bill's long-ago words to close associates with his words in a recently videotaped deposition. But not only did Bill suffer attacks in open court proceedings; he also was vilified in background leaks from government lawyers who portrayed him as a ruthless predator in need of maximum legal punishment.

And proving once again that paranoia is sometimes justified, Bill's defense attorneys discovered that his opponents really were in a vast conspiracy against him, that a government lawyer had gone so far as to meet secretly a half dozen times with an influential fat cat who was a sworn EOB--Enemy Of Bill.

The top-of-the-fold headline in Tuesday's Washington Post summed up Bill's predicament: "U.S. Targets Gates." Oh, did you think I meant Bill Clinton? This column is about the Justice Department's antitrust case against Microsoft Chairman Bill Gates, spearheaded by ace litigator-on-loan David Boies. Backed by an army of government lawyers, Boies and Joel Klein, the assistant attorney general for antitrust enforcement, have combed through thousands of Gates' in-house e-mails. And Klein raised some ethical eyebrows when it was revealed this week that he met at least six times with Gates' bitter rival, Netscape Communications Corp. President James Barksdale, to plot anti-Microsoft strategy.

It's easy to see why this Justice Department is suing Microsoft. For all of their Third Way-ishness, the Clintonians are Democrats, and Democrats are anti-business and pro-bureaucrat, although recently civil servants have been eclipsed by civil litigators. As long as there's a division at Justice dedicated to antitrust, there will be dedicated antitrusters, no matter what the consequences to the economy.

And those consequences can be dire. From 1969 to 1982, the Justice Department paralyzed IBM, the Microsoft of the day, with an antitrust suit in which government lawyers collected 760 million documents. As Paul Carroll wrote in his 1993 book "Big Blues: The Unmaking of IBM," during that legal siege, "IBM's top executives were afraid to put anything down [in writing] for fear that the government would subpoena the document. Lawyers, who were developing a stranglehold on the business, decided what could be said at meetings." The Reagan administration, which understood that regulation is no way to ensure competition, finally kiboshed the case, but not before a generation of lawyers on both sides of the claim established their careers. One of them was the same David Boies, then representing IBM.

Once in power, the Clinton administration launched an investigation into Microsoft, the highest flying American corporation. Klein's predecessor at Justice, Anne Bingaman, practically begged for an opportunity to bust the software maker; as she put it, "We have become a kind of Microsoft complaints center. And we take them very seriously." And for his part, Klein, who surely lost whatever naivete he once might have had during his two-year stint in the Clinton White House, must realize that this trial, which puts him in the news every day, can't be bad for his own career.

The more interesting question is why Republicans would allow Democrats to clobber a company whose alleged "crime" is giving its Internet browser away. Microsoft is despised by its rivals, but that's capitalism. Republicans should know that government efforts to "level the playing field" invariably degenerate into political fixing that enriches Washington and impoverishes America.

Perhaps the real reason GOPers have kept quiet is that Justice is using the same tough tactics on Gates that Ken Starr has been using on Clinton. Yet while Republicans were enjoying the Monica show, they were caught with their own pants down as Clinton outfoxed them on his big-spending budget and possibly even the November election.

It's possible that the GOP will yet get Clinton. But in the meantime, they have lost sight of what they say they came to Washington to do: reduce the size and scope of the federal government. In the next century, the precise date that Clinton leaves office in disgrace will matter little. But it will matter a lot if legal entrepreneurs are allowed to build public sector empires on the ruins of productive enterprise.

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