Speaking Out Of School

Judge Thomas Penfield Jackson spoke freely to reporters during the Microsoft antitrust trial, and paid a big price

When legal pundits contend that judges should refuse to talk to reporters, they frequently cite U.S. District Judge Thomas Penfield Jackson as Exhibit A.

In June 2001, Jackson — a 1982 Reagan appointee to the federal bench in Washington, D.C. — was disqualified from the government’s antitrust suit against Microsoft Corp. for secretly discussing the case with reporters during the trial.

A closer look at the record, however, suggests that it was the content of Jackson’s remarks that got him in trouble, not the mere fact that he spoke to the press.

While the case was pending, Jackson granted lengthy interviews to The New York Times, The Wall Street Journal, The New Yorker and even The Dartmouth Online. (Jackson is a 1958 graduate.) Jackson “embargoed” his comments by agreement with reporters, delaying publication until after he had ruled. But when his colorful quotes did appear — while the case was on appeal — they had an explosive impact.

On his decision to split Microsoft in two, Jackson told two New York Times reporters:

“A man had a trained mule who could do all kinds of wonderful tricks. One day somebody asked him: ‘How do you do it? How do you train the mule to do all these amazing things?’

‘Well,’ he answered, ‘I’ll show you.’ He took a 2-x-4 and whopped him upside the head. The mule was reeling and fell to his knees, and the trainer said, ‘You just have to get his attention.’ . . . I hope I’ve got Microsoft’s attention.”

On Microsoft founder Bill Gates, he told Ken Auletta of The New Yorker:

“He’s a smart-mouthed young kid who has extraordinary ability and needs a little discipline. I’ve often said to colleagues that Gates would be better off if he had finished Harvard.”

Jackson even compared Gates to Napoleon, telling Auletta:

“If I were able to propose a remedy of my devising, I’d require Gates to write a book report [on Napoleon Bonaparte], because I think he has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses.”

He candidly revealed his impression of the credibility of Microsoft’s witnesses, telling The Wall Street Journal:

“Falsus in uno, falsus in omnibus. [Untrue in one thing, untrue in everything.] I don’t subscribe to that as absolutely true. But it does lead one to suspicion. It’s a universal human experience. If someone lies to you once, how much else can you credit as the truth?”

And, in a strikingly blunt assessment of his own court of appeals, Jackson told Auletta:

“What I want to do is confront the Court of Appeals with an established factual record which is a fait accompli. And part of the inspiration for doing that is that I take mild offense at their reversal of my preliminary injunction in the consent-decree case, where they went ahead and made up about 90 percent of the facts on their own.”

Not surprisingly, the appeals court did not take kindly to such remarks. In a blistering opinion, the court said Jackson’s comments “convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write.”

The seven-judge panel unanimously disqualified Jackson, who was replaced by U.S. District Cout Judge Colleen Kollar-Kotelly.

Jackson’s disqualification is widely viewed as a cautionary tale for judges who consider speaking to the news media. But, as the appeals court acknowledged, the problem lay in the content of his statements, not the fact that he met with reporters.

In its opinion, the appeals court expressly conceded that Jackson could have spoken about the case in general terms even while it was pending, but found that he had gone too far and “disclosed his views on the factual and legal matters at the heart of the case.”

Stubborn to the end, Jackson stood by his comments. In fact, even when he recused himself from a separate case involving Microsoft in March 2001 — acknowledging an “appearance of personal bias” — he couldn’t resist one last shot at the company.

In his recusal order, he described the software maker as “a company with an institutional disdain for both the truth and the rules of law that lesser entities must respect.”