The lanky, white-haired attorney general of Iowa, Miller was a familiar figure inside Washington, D.C.'s E. Barrett Prettyman courthouse during the course of the 78-day trial. Coordinating the efforts of the 19 states participating in the case, Miller held together a sometimes fractious coalition of independent politicians, each with their own agenda, helping guide the common courtroom strategy that would ultimately lead to a breakup order against Microsoft.
Now that verdict is being reviewed by the U.S. Court of Appeals, a venue where Microsoft once before successfully reversed an order against it issued by a lower court. Indeed, during two days of oral arguments by lawyers representing the government and the Redmond, Wash., giant late last month, the appellate court seemed to lean in Microsoft's favor, leading some legal observers to suggest the breakup order could be in trouble.
With that appellate court decision likely to come any day, Miller gave us his take on the case now that he's back home in Iowa.
The new conventional wisdom seems to be that Microsoft has been rendered less powerful, in part because of changes in the market, but also as a result of the antitrust lawsuit. Have you seen any specific evidence that the company has changed its business practices?
It might be that they have, though that's hard to know. I'd like to think that our lawsuit has had some effect in restraining Microsoft's antitrust tendencies. You'd think they would watch the law more carefully if they were being sued on antitrust grounds, but I guess that people in the industry who watch specifically what they do would be able to better judge.
Do you buy into the argument that Microsoft's less potent than it once was?
In terms of competing products, (changes in the industry) may make the PC less important, but only slightly less important. Microsoft's hold on the operating system market remains just as strong as it was before the antitrust lawsuit. And they still have a long-term monopoly on Windows for now and looking into the foreseeable future.
You've been involved in this case from the start. Win, lose or draw, how do you think economic historians are going to judge the lawsuit?
(Laughing) Who knows? I would approach that one with a great deal of bias. I would hope that they looked at this as a law enforcement matter. It was very important that we and the DOJ stood up and brought the case. The FTC had given (Microsoft) a pass, which I think was a terrible decision. And then Microsoft was able to work around the consent decree. We thought they were violating the law, and the question was whether a company as successful as this one would be able to do that. In terms of the economic history, that's yet to be decided.
The Appeals Court gave the government's lawyers a pretty rough time. Based on your experience as a legal watcher, do you think the appellate court is going to knock down parts or all of Jackson's ruling in the case?
As a general practice, I don't predict what the courts will do, and as a very specific practice, I don't predict what they will do in cases that I'm involved with.
OK, then help me understand the process. If, for the sake of argument, the case gets remanded to another District Court, will the states appeal that decision to the Supreme Court?
We would have to look at the whole opinion before deciding what to do on all the issues.
Would you need to also get the assent of the Justice Department before pressing ahead in the event of a reversal?
We wouldn't, but if we were doing it together, the position would be somewhat stronger.
But in the event of a reversal, were the DOJ to decide not to pursue the matter, what are the states prepared to do?
We certainly don't think that it will come to that, but if we have to, we would pursue that case alone, if need be. The history of the antitrust division is a very professional one and we've had good cooperation. I'm sure we'll figure out a way to be in agreement.
Speaking of the role of the states, can you address Judge Posner's criticism where, in so many words, he blamed the states for undermining the chance for a successful mediation effort last year?
The Justice Department and the states were still a significant distance from Microsoft...so it wasn't a matter of us stopping a settlement. I think you could take what he said to imply criticism of us. And yes, we took it that way. But in terms of frustrating a settlement, no, we didn't.
If the Appeals Court overturns some or part of the verdict, might that increase the odds of the sides again returning to the negotiating table to reach an out-of-court settlement?
I don't know. That would depend on how the decision comes out. It would be a natural point for negotiations."
When you first heard of Judge Jackson's extra-judicial comments, did you think, "Oh my, he just shot us in the head"?
I was a little surprised. But I think maybe too much is being made of his comments. The point made by (government attorney) John Roberts was very true: (Jackson) didn't have any bias against Microsoft in this case. He observed them in the case and came to these conclusions based on the trial. Had he said that in the courtroom or in his decision, it would have been OK.
If Microsoft gets broken up, how do you think that might affect usability?
We don't know, but if the market decides in a free and open way (in favor of Internet Explorer), that's the way it should be, and so be it...customers should have a choice.
Out of curiosity, what Internet browser do you use?