Can the Bush administration abandon the federal government's antitrust prosecution of Microsoft or other cases filed by the Clinton administration?
Yes. An administration is free to review and then reverse field on legal proceedings initiated by its predecessor. There is no express procedure for doing so, and because of the vast government docket, a new administration is unlikely to conduct a comprehensive review of all their cases. An administration is most likely to take action when a new decision point is reached in a case--when a new set of briefs are due or when the case is moving to an appeals court, for example. There is also no prohibition against an administration changing its own mind about a suit. The Clinton administration reversed the Bush administration in Taxman vs. Piscataway. In the case, a white teacher was laid off explicitly to meet a school system's affirmative action goals. The first Bush administration sided with the teacher and was her co-plaintiff. Then when the Clinton administration came in, the government changed position and wrote a brief in support of the school board. As the case was heading to the Supreme Court, Clinton's solicitor general, Walter Dellinger, decided the school board's actions were not legally defensible and convinced the administration to reverse itself and side with the teacher. (Heads spinning, the two sides settled before the high court heard the argument.)
The Reagan administration did a double reversal when it abandoned its own and previous administrations' views on whether racially discriminatory private schools were entitled to tax exemptions. In the Bob Jones University vs. United States case, the administration initially filed briefs against the university. Then, before the case was argued at the Supreme Court, the administration made a stunning reversal in favor of the university. The court found against Bob Jones eight to one.
The Wall Street Journal reports that at least two businesses are hoping the second Bush administration will abandon positions taken by the Clinton administration. The tobacco industry hopes that Bush will not continue to prosecute a racketeering suit initiated by Clinton, and American Airlines is hoping it can settle a pending antitrust case.
Explainer thanks Walter Dellinger of O'Melveny & Myers and the Duke University School of Law and reader Jimmy Roberts-Miller for suggesting the question.