Kenneth Starr joins anti-Microsoft forces

Famously tight-lipped former special prosecutor Kenneth Starr has joined an anti-Redmond lobby group on the the day that the US Department of Justice defended Judge Jackson's indiscreet post-trial comments about Microsoft.

The legal briefing (PDF format) filed by the combined DoJ plus States prosecution team spends much of its 188 pages rebutting Microsoft's own rebuttal.

It's familiar stuff: claiming that Microsoft's defence quotes selectively from trial exhibits, although Boies has admitted that prosecution exhibits are also selective (albeit representative of the company's behaviour), he says. The filing also wants to cast out non-trial evidence Microsoft has dragged into recent filings.

The filing addresses public comments Jackson has made since the final ruling which - Microsoft says - show bias on the judge's part. But contrary to conventional legal punditry, Microsoft may have a hard time proving that the exasperated judge's remarks constitute grounds for recusal.

It cites the Supreme Court judgement that "opinions formed by the judge on the basis of facts introduced or events in the course of current proceedings... do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoratism or antagonism that would make fair judgement impossible."

The DoJ produces Jackson's comments that he was "full of admiration" for Microsoft, and found it "innovative and admirable" in many ways. In response to Microsoft's argument that the post-trial comments breach the Judges Code, the DoJ responds that the code shouldn't apply when a case is over, and at the appellate phase.

According to Reuters, anti-Microsoft lobby ProComp has enlisted Kenneth Starr to help write a brief in support of the DoJ prosecution. Originally the Whitewater prosecutor, Starr expanded his job remit to include the Monica Lewinsky scandal.

If credibility with the incoming Bush administration is what ProComp need, Starr might be the man. Dubya's choice for Attorney General John Ashcroft - the man likely to assume responsibility for the Government prosecution - leant support and office space to the Starr team. But if rectitude and discretion are required. Ken's an odd choice.

According to the Washington Post's Bob Woodward, Starr originally intended his notorious, explicit eponymous report on the Lewinsky scandal for private distribution to key members of Congress. But it was then distributed on the Internet, and was being read within a couple of hours by Chelsea Clinton at the White House, and is credited with turning public support behind the old scoundrel.

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