By Sacrificing the Rule of Law for Political Gain …

0 Comments | Insight on the News, Dec 27, 1999 | by Paul Craig Roberts

Now we know what the Microsoft antitrust case is all about: It is President Clinton's payoff to the lawyers who have bankrolled his seven-year reign of corruption. As soon as Justice Department patsy Judge Thomas Penfield Jackson ruled that Microsoft was a monopoly, the race to the courthouse was on.

Three notorious sharks of the class-action racket -- Terry Gross, Daniel Mogin and Francis Scarpulla -- have filed a class-action lawsuit on behalf,

they claim, of "millions of Californians." In fact, the three greeddriven lawyers have filed the lawsuit on their own behalf. You can bet your last dollar that they have not talked to "millions of Californians" or been given their permission to sue on their behalf.

The Microsoft case has nothing to do with a monopoly or bringing a wrongdoer to justice. But it is a perfect illustration of the breakdown of the protective functions of law, making it possible for a corrupt government and its campaign contributors to plunder the shareholders of America's most successful high-tech company.

The Microsoft case did not begin with consumer or customer complaints. It began when Microsoft's vanquished competitors sidled up to Clinton and some Republican senators. Money talks -- and it did.

Assistant Attorney General Joel Klein saw the career opportunity of his lifetime and launched an antitrust investigation of Microsoft. He wasn't sure of the precise infraction, but he had a "novel theory" that Microsoft had committed one.

Everyone in the Clinton administration knows there is no honest way to make money. You have to steal it. It was obvious to Klein that Microsoft had so much money it must have done a lot of stealing.

It used to be that offenses clearly were spelled out in statutes, but that was before prosecutors gained broad interpretative latitude to tailor offenses to fit the target. Invent a better mousetrap and, after the world shows up on your doorstep, Klein will come along with a lawsuit.

For most economists, monopoly is a nebulous concept. The very best economists don't believe monopolies exist, except temporarily at a point in time. Economists once believed there were natural monopolies, but these turned out to be creations of government regulations. Today there even are alternatives to the local telephone power companies.

Jackson is no economist and has no competence to determine whether Microsoft is a monopoly. The judge says the company is a monopolist, but he is unable to identify the victims.

Who are they? The only victims anyone can think of are consumers, who don't want their computers to come with operating systems that contain an Internet browser that permits them to connect to the network. Do you know any such people? If you do, should this handful be able to deny the rest of us e-mail, e-commerce, e-research, e-news?

The biggest hole in Jackson's ruling comes from the fact that America Online, or AOL, extended its exclusivity agreement with Microsoft to the year 2001 after it purchased Netscape in 1998. Netscape is one of the original whiners who helped to sic the Clinton administration on Microsoft. Netscape has a competing browser, but not an operating system with varied applications.

Allegedly, AOL was pressured into the original exclusivity agreement with Microsoft through the latter's wielding of its monopoly power. This charge bites the dust when AOL voluntarily chooses to have its products bundled with Microsoft's Windows even after it acquires a company with a competing browser.

The Microsoft case is a political one. It is about paying off supporters. It has gone forward only because prosecutors have gained the power to define infractions that are not on statute books and to fashion charges to fit the target.

The Microsoft case is a bill of attainder. The U.S. Constitution prohibits the retroactive application of law to preselected targets, much less the retroactive application of a "novel theory" that is not on the law books. The Microsoft case shows one thing clearly: Klein, Jackson and the Justice Department no longer recognize a rule of law. But they do know how to plunder to reward the cronies of their political masters.

Paul Craig Roberts is a syndicated columnist who writes frequently on legal and constitutional issues.