DOJ's Klein takes pro-Microsoft heat on Capitol Hill

WASHINGTON- The federal government's antitrust chief came under fire from Republican lawmakers today on Capitol Hill while defending his case against Microsoft.

U.S. Assistant Attorney General Joel Klein was appearing with Federal Trade Commission Chairman Robert Pitofsky at a routine U.S. House Judiciary Committee antitrust oversight hearing. Rep. Henry Hyde, R-Ill., the committee chairman, kicked off the hearing by saying he didn't schedule it "in response to any recent event. The fact is that this hearing has been scheduled for this date since January."

But that didn't stop Hyde's Republican colleagues from using the forum to lob criticism at Klein for prosecuting the software giant. Since U.S. District Judge Thomas Penfield Jackson ruled against Microsoft on April 3, several lawmakers have publicly questioned the sagacity of the case. Rep. J.C. Watts, R-Okla., the fourth-ranking Republican House member, sent a pointed letter to U.S. Attorney General Janet Reno last week, arguing that the Justice Department should concentrate on prosecuting federal campaign-finance and gun-law violations. Although Congress has no role in the court case, it can tighten the Justice Department's already frayed purse strings and rewrite federal antitrust law.

At today's hearing, Rep. George Gekas, R-Pa., pressed Klein about his motivation for bringing the case. Gekas said he had received few, if any, consumer complaints about Microsoft.

"Was it the competition that felt it could not compete?" Gekas asked Klein. "Or was it one-on-one? Did the Justice Department take a look at Microsoft and say, 'There's a target'?"

Klein answered Gekas and other GOP lawmakers by repeatedly pointing to the "78-day trial" that preceded Jackson's sweeping verdict and resulted in hundreds of pages of incriminating testimony. Klein read passages from Jackson's 207-page "findings of fact" that excoriated Microsoft for crushing software innovation and harming consumer choice.

"I want to assure you personally that, to me, every case is a question of the facts and the law," Klein said to Gekas. "We don't single out any company." Klein acknowledged, however, that a complaint from Netscape Communications was a "trigger factor" in the Justice Department investigation leading to the current case.

Rep. Joe Scarborough, R-Fla., angrily told Klein that "a majority of consumers in America disagree with you. This argument that innovation has been crushed just doesn't square up." Scarborough cited media reports that call Klein a "front man for disgruntled rivals" and allege that Microsoft rivals such as Apple and Sun Microsystems received regular briefings on the progress of settlement talks in the case. Klein denied that such leaks came from the Justice Department.

Klein also fielded questions about a perceived lack of harmony between the Justice Department and its partners in the case, the group of 19 state attorneys general and the District of Columbia's corporation counsel. Klein praised the states and said the government camp is working to submit a single "remedy" proposal to Jackson by April 28. Rep. Barney Frank, D-Mass., told Klein that he "worried about the role of the states" in prosecuting a case with national economic effects.

"Some of my best friends have been attorneys general," Frank said. "But attorneys general are not elected primarily on their economic expertise. The national perspective ought to be the important one. I am skeptical that the attorneys general should have a major role ... when we get into the remedies."

Not everyone at the hearing wanted to bash the government. Microsoft's folksy new TV advertising campaign drew fire from Rep. John Conyers, D-Mich., the committee's ranking minority member. Conyers said the commercials, which feature Microsoft Chairman Bill Gates, "disturbed" him and that they were "not a pretty sight."

"What so disturbs me this morning is how some in the majority party are using this case as a fund-raising cash cow, how some are attempting to futilely intimidate the Department's law-enforcement efforts, how big money is now being used to create an advertising campaign in the middle of the judicial proceeding," Conyers said.

Hyde broke with his Republican colleagues on the committee, reminding Klein and Pitofsky that their task was simply to enforce the antitrust laws - and by implication, not respond to pressure from anyone, including lawmakers.

"If the law is imperfect or the law is irrelevant, it is our job to change the law," Hyde said.

After his appearance, Klein told reporters that he thought the committee's questions were "fair and reasonable." He refused to comment on the specifics of the government's upcoming remedy proposal.

"We're working through the process," Klein said. "Other people may try to speculate, may try to spin, may try to lead us, but we're going to do our work."

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