The Bush administration is expected to reluctantly pick up its predecessor’s antitrust crusade and press for a break-up of Microsoft Corp. this month during the company’s appeal of its landmark conviction.
Lawyers close to the case said they expect little change in policy from the Bush Justice Department when hearings on the Microsoft break-up begin Feb. 26 in the U.S. Circuit Court of Appeals, despite the pro-business leanings of the new administration and critical comments about the case President Bush made on the campaign trial.
Officials close to the case said the new administration is likely to wait until May or June after the Appeals court rules before deciding on whether to enter into settlement talks with the software giant.
With a critical phase of the Microsoft case looming, Bush and Attorney General John Ashcroft are expected to name veteran trust buster Charles James this week to head the Justice Department’s antitrust division, administration officials said last night.
James, who served in the Federal Trade Commission and the Justice Department’s antitrust division during the Reagan and Bush administrations and helped craft the government’s corporate merger guidelines, will be the first African American to head the division.
Microsoft is appealing federal judge Thomas Penfield Jackson’s order that the company be broken into two separate companies, after he found the software giant illegally squelched competition in the high tech industry.
The company is widely believed to have rejected settlement offers from the Clinton administration last year because of a perception that it could get a better deal from Bush.
But lawyers close to the case said James, 46, a lawyer with the Cleveland-based firm Jones, Day, Reavis & Pogue, will likely take a wait-and-see approach to the Microsoft case in his first days in office. With legal briefs against the Microsoft appeal already filed by lawyers from the Clinton administration, James will let two lawyers from the Solicitor General’s office argue the case in appeals, sources said.
“I suspect that the Bush team likes the Microsoft case much less than the Clinton Justice Department. But there will be a high political cost of moving to end the case right now,” said William Kovacic, an antitrust scholar with the George Washington University Law School.
“If you move right away you are going to be accused of being an agent for powerful corporate interests. Also the 19 states that have joined in the government’s lawsuit have vowed to continue pursuing the case,” Kovacic said. “So you can’t get rid of the case. Therefore I think you’ll see there will be no intervention or change in direction for the short term as it heads through the appeals process. But they’ll re-evaluate after that especially if the court of appeals diminishes the government’s victory,” he added.
Also, Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), who will chair James’ confirmation hearings, is a bitter foe of Microsoft and an ardent supporter of the antitrust case.
Ashcroft, in his confirmation hearings last month, took no position on the case, saying he’d rely on “expertise within the department in deciding strategy for the case.”
But the conservative former Missouri senator harshly questioned Microsoft CEO Bill Gates during a March 1998 hearing on accusations against the company.