Double Bill
It is a remarkably unremarked coincidence that Washington is now hosting two Trials of the Century at once: Bill Clinton’s impeachment trial and Bill Gates’ impeachment trial, also known as the Microsoft antitrust trial. As far as I can determine, I am one of only a handful of people to have attended both. (The only other double-Biller I know for sure is a court artist who sketches in the courthouse and the Capitol.)
(Requisite conflict of interest disclosure. I’m a Microsoft employee and Slate is owned by Microsoft. I’m also a U.S. citizen who voted twice for Clinton. In my world, Bill G. giveth, and Bill C. taketh away.)
First, the superficialities. There is more security in the Senate. There are also more reporters (200 at impeachment vs. 20 at Microsoft) and more spectators (500 vs. 20). The wheels of justice grind slowly at both: Bankers would be embarrassed by the hours these courtrooms keep. The impeachment trial starts at 1 p.m. and rarely lasts past 6 p.m., with generous breaks sprinkled in. The Microsoft trial starts at 10 a.m. and runs till 5 p.m., with a 20 minute break every hour or so, 90 minutes for lunch, and Fridays off. Ebb tide arrives at both around 3 p.m., when Microsoft Judge Thomas Penfield Jackson and senators (and spectators and reporters) visibly fight sleep (and frequently lose). Fabulous lawyering displays itself in both chambers. The White House defense, especially Chuck Ruff and Cheryl Mills, has dazzled senators. There are lawyers who take time off work just to see Microsoft prosecutor David Boies eviscerating witnesses. In both cases, the judge is also the jury: The Microsoft case will be decided by Jackson; the impeachment trial will be decided by senators, who also rule on trial procedure.
Both trials revolve around their Bills. They are absent in body, intermittently present in humiliating videotapes. (Both Maximum Leaders remain mysteriously popular. The lying, lecherous Clinton is credited with keeping America prosperous. The bullying, rocking Gates is credited with keeping computers compatible. Both the White House and Microsoft tacitly offer this popularity as a legal defense.)
Both trials are updating fusty, musty 19th century law for the 21st century. President Andrew Johnson has been dragged out of the garbage and cleaned up for the impeachment trial. A law designed to stop John D. Rockefeller has been dusted off and applied to a company whose product is data. (In the courtroom yesterday, I actually saw a spectator reading Titan, the new bio of Rockefeller.)
The strangest and strongest similarity between the trials is their shared obsession with linguistic trickery. Clinton’s lies during his deposition and grand jury testimony infuriate his critics, who portray him as uniquely mendacious.
But the Microsoft trial suggests he is not unique at all. Yesterday, for example, prosecutor David Boies tied Microsoft Senior Vice President Jim Allchin in knots over whether computers he used to test software were “virgin machines.” After a few minutes of the Boies treatment, Allchin was contradicting himself and backtracking, eventually bottoming out with, “It’s all relative to what you think a ‘virgin machine’ is.” The president himself could not have said it better. (This moment reveals one striking difference between the Microsoft case and Flytrap: No one and nothing in the Lewinsky scandal could ever be described as a “virgin machine.”)
Clintonian slipperiness pervades Microsoft’s testimony. Prosecutors are constantly unearthing examples of Microsoft threats to competitors: Microsoft execs are quoted saying that the company will “knife the baby” or “cut off Netscape’s air supply” or “pollute” Java. Microsoft’s defenses are 1) to deny anything that can’t be confirmed and 2) to weasel when confronted with hard e-mail evidence. (I keep expecting a Microsoftie to say something like: When I wrote that Microsoft should “kill” Netscape, what I clearly meant was that Microsoft should work closely with Netscape to develop better software for our customers.)
There are two competing interpretations of this Microshiftiness. The first is that Microsoft’s trickery shows that it is, like Clinton, deeply dishonest. Microsoft lies, as the president lies, because it has much to hide. The second, more generous, interpretation is that perhaps all defendants–not just Clinton but also Microsoft and others–become evasive and hairsplitting when examined by prosecutors who loathe them. (I suspect both interpretations have some truth.)
Both trials present a remarkable mismatch between substance and setting. The Clinton trial has all the trappings of grand drama, yet has no real drama at all. The Senate trial unfolds in a huge imperial room and is guided by pomp and custom. Reporters and spectators sit far away, distanced from the Olympians of the chamber. The impeachment trial overflows with superb rhetoric and exhortation. Yet for all its spectacle, the impeachment trial is miserably short on conflict. Everyone fundamentally agrees on the facts. What drama there is exists at the margins: Will there be a “finding of fact”? How many Republicans will vote to acquit? Et cetera.
The Microsoft trial has none of the trappings of drama yet is full of it. The courtroom is intimate and modern and not at all awesome. Reporters and spectators sit virtually on top of the lawyers, and all chat in the halls during breaks. There is virtually no rhetoric. The trial consists of hand-to-hand combat between lawyers and witnesses, long battles over picayune yet essential technical details. (Reporters who cover the impeachment need nothing but a sharp eye. Reporters who cover the Microsoft trial must understand software, marketing, and antitrust law.)
The hard labor of Flytrap was done in private by the Office of the Independent Counsel and his grand jury and submitted in beige-bound volumes to the Senate. The hard labor of the Microsoft trial is being done in full public view. This means tedious days of cross-examination: On Tuesday, we labored through hours of arcane questions about how, exactly, Windows 98 might or might not be separated from Internet Explorer. There is no doubt: Minute by minute the Microsoft trial is duller than the grandiose impeachment show.
(Not every minute is drama-less, of course. On Tuesday, for example, Boies appeared to catch Microsoft submitting a fraudulent videotape into evidence. I say “appeared” because Microsoft later offered a vindicating explanation. It’s not yet clear if the explanation is true. The impeachment trial, where all the evidence was essentially agreed to in advance, has no such “Holy shit!” moments.)
But the dreary slog of witnesses at the Microsoft trial adds up to something far more serious than the impeachment trial can muster. At the heart of the Clinton trial is a weak, priapic president who did something extremely stupid, probably illegal, and possibly impeachable. Only one side in the impeachment trial really believes this affects the health of the nation. At the heart of the Microsoft trial, by contrast, is a genuine intellectual war: a great and crucial fight about the nature of software and monopoly and profits and competition. Both sides believe the case matters. Every Microsoft cross-examination, even at its dreariest, is a clash between two worldviews.
There is a final and critical difference between the two trials. Both are enveloped by a fog of inevitability. All popular wisdom agrees that the Senate will acquit Clinton. Almost all popular wisdom agrees that Jackson will rule against Microsoft. The Clinton trial will truly end when the Senate acquits him. History and the American people have already rendered their verdict: moral defeat and political victory for Clinton.
The Microsoft trial still crackles every day because there is no such ending in sight. Jackson’s ruling is a prelude. Anyone who tells you he knows how the appeals court and the Supreme Court will rule on the Microsoft appeal is a liar or a fool. We don’t know what will happen to one Bill, which is why his trial is a compelling spectacle. We do know what will happen to the other Bill, which is why his trial is only a compelling spectacle.
For more on the Microsoft trial, check out Slate’s “Dispatches.”
