Fox guarding hen house

Today's NY Times tells us how a top anti-trust lawyer at the firm that defended Microsoft in it's anti-trust trial was appointed Assistant Attorney General and, in that role, has tried to defeat claims by Google and others that Microsoft is violating the provisions of its consent decree.

WASHINGTON, June 9 — Nearly a decade after the government began its landmark effort to break up Microsoft, the Bush administration has sharply changed course by repeatedly defending the company both in the United States and abroad against accusations of anticompetitive conduct, including the recent rejection of a complaint by Google.

The retrenchment reflects a substantially different view of antitrust policy, as well as a recognition of major changes in the marketplace. The battlefront among technology companies has shifted from computer desktop software, a category that Microsoft dominates, to Internet search and Web-based software programs that allow users to bypass products made by Microsoft, the world’s largest software maker.

In the most striking recent example of the policy shift, the top antitrust official at the Justice Department last month urged state prosecutors to reject a confidential antitrust complaint filed by Google that is tied to a consent decree that monitors Microsoft’s behavior. Google has accused Microsoft of designing its latest operating system, Vista, to discourage the use of Google’s desktop search program, lawyers involved in the case said.

The official, Thomas O. Barnett, an assistant attorney general, had until 2004 been a top antitrust partner at the law firm that has represented Microsoft in several antitrust disputes. At the firm, Justice Department officials said, he never worked on Microsoft matters. Still, for more than a year after arriving at the department, he removed himself from the case because of conflict of interest issues. Ethics lawyers ultimately cleared his involvement.

Mr. Barnett’s memo dismissing Google’s claims, sent to state attorneys general around the nation, alarmed many of them, they and other lawyers from five states said. Some state officials said they believed that Google’s complaint had merit. They also said that they could not recall receiving a request by any head of the Justice Department’s antitrust division to drop any inquiry.

Mr. Barnett’s memo appears to have backfired, state officials said. Prosecutors from several states said they intended to pursue the Google accusations with or without the federal government. In response, federal prosecutors are now discussing with the states whether the Justice Department will join them in pursuing the Google complaint.

Frankly, I don't know why this even made the news at all, much less the front page. After all, Bush is always appointing the fox to guard the hen house. Perhaps what is newsworthy is that this time it backfired.