Joel Klein thinks it's war-dance time

As the government rests, its top trustbuster declares victory in our time. Clairvoyant or corny?

WASHINGTON -- DOJ trustbuster Joel Klein strode to the mike across the street from the courthouse Tuesday, wearing the kind of pie-eating grin that let everyone know how he thought his side was doing.

As the press assembled at "Monica Beach" took their dutiful notes, the assistant attorney general wanted to let all the taxpayers (and potential voters in this great land) know that this one was in the bag.

"Microsoft has engaged in a widespread pattern and practice of anti-competitive behavior to crush any threat to its monopoly," Klein said, laying it on extra thick with an obvious eye toward the evening news.

Almost 13 weeks after his lawyers began their prosecution, Klein talked about the "extraordinary mountain of evidence" the government had accumulated to prove its antitrust charges against Microsoft.

The software maker was guilty of a pattern of evasive, exclusionary and collusive behavior -- all in a bid to protect its Windows monopoly, Klein said.

The hyperbole was in full flow this day, as Klein indicated his team had put together such a convincing case that nothing Microsoft's defense team would offer up was going to change the outcome.

Spin session
But the spin session was just starting. Tom Miller, the attorney general of Iowa, who has coordinated the states' case, waxed on about a "pattern of predation" established during the trial.

Then, pleased with his own eloquence, he went one better -- describing a "culture of predation" that prevailed at Microsoft.

New York's Steve Houck, the lead state prosecutor during the trial, made sure nobody went home disappointed by the absence of a fitting sports cliche and said that Microsoft had conducted itself just like "many of our professional athletes today" with its win-at-any-cost attitude.

Far from over
Of course, there are still a dozen witnesses to be heard from -- a fact impolitely overlooked by this baggage train of bloviation.

I don't often find myself agreeing with Bill Neukom, who has rarely contributed anything worth noting during his infrequent public commentaries on the trial.

But in this case, Microsoft's legal counsel was spot-on when he cautioned the resident members of the Fourth Estate not to close the books just yet.

This one is far from over.

And Neukom will have a chance to prove just that to Judge Thomas Penfield Jackson when Microsoft opens its defense Wednesday with the testimony of Richard Schmalensee, the Dean of the Sloan School of Management at MIT (and apparently one of 27 of people who still believe Microsoft is not a monopoly -- with the other 26 reporting having had contact with extra terrestrials.)

Despite Tuesday's premature declaration of victory-cum-pep rally, the trustbusters still won't publicly raise the issue of remedies.

One knowledgeable source on the government side told me that David Boies and his crew don't want to unnecessarily alienate the judge. Jackson has an ornery independent streak, and the last thing you want to do is assume anything with him.

Meanwhile, the government is still mulling over what penalties to ask for. "We're talking about everything from one extreme to the other," said my source. "Nothing's been decided yet."


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