October 1, 2001 A.D.
Chairman and Chief Software Architect
One Microsoft Way
Subject: MOTION FOR INTERVENTION,
USA v. Microsoft
Dear Mr. Gates:
It is my distinct honor to explain to you our intervention in the federal antitrust case against your company.
It is our position that the case against Microsoft has been brought in the wrong court, by certain Plaintiffs lacking standing to sue, and by U.S. Attorneys lacking authority to represent those Plaintiffs. Therefore, the case should be dismissed for lack of jurisdiction.
A considerable amount of research has now been assembled to prove that the federal government effectively “broadcasted” a territorial tribunal into the 48 States on June 25, 1948 A.D., under a false legal doctrine that the U.S. Constitution does not apply inside federal Territories. See 28 U.S.C. 132 and Downes v. Bidwell, 182 U.S. 244 (1901), Justice Harlan dissenting.
Territories are under American jurisdiction, but they are not States of the Union. They are governed by Congress, because Territories do not have their own State legislatures. They fall inside the blue field on the American flag; the white stars are the States of the Union.
The Downes Doctrine, as it is called, was defeated before the fact, because Congress had already extended all the guarantees of the U.S. Constitution into the District of Columbia in 1871, and then into all federal Territories in 1873. However, these two Acts of Congress have never been litigated, to our knowledge. The Downes case was decided in 1901.
Territorial tribunals are also called legislative courts, because they exist by virtue of the authority vested in Congress to create specialized courts under Article IV, Section 3, Clause 2 (the Territory Clause in the U.S. Constitution), as opposed to constitutional courts created by virtue of Article III.
The big breakthrough for us came recently, when we learned that a constitutional court, created under Article III, is a legal prerequisite whenever the “United States” (federal government) is the Plaintiff prosecuting a case.
In the language of Article III, these are “Controversies to which the United States shall be a Party”. Congress, as you may already know, cannot change the Constitution, nor can Congress re-define any of its terms. The judicial power of the “United States” must be exercised in these cases; it is mandatory.
Yours is one of those cases.
On the other hand, whenever the “United States” is a Defendant, another doctrine ‑‑ the doctrine of sovereign immunity ‑‑ necessitates that Congress give permission for the sovereign to be sued, and to dictate the conditions on which those suits can proceed. Obviously, this doctrine does not apply to you (not yet, at least). In our opinion, the government actions taken against Microsoft to date do constitute probable cause to institute a tort claim against the United States and its employees (as Defendants). See the Tort Claims Act for legislative guidelines.
In light of this latter doctrine, suits against the “United States” are now being assigned to legislative courts, where Article III guarantees are not available as a matter of right, but only at the discretion of those courts (read “privilege”). The United States Court of Federal Claims is an Article I court. See 28 U.S.C. 171.
Article III guarantees include, but are not limited to, courts that are competent, independent, and impartial. You were quite correct to attack Judge Jackson’s demonstrable bias, and we congratulate your fine legal team for prevailing with your challenge to that bias. We argue that there were also fundamental reasons why Judge Jackson acted as he did, reasons which go to the competency of courts to proceed in the first instance.
We believe that the case against Microsoft was initiated in a legislative court or, alternatively, in a court proceeding in legislative mode. In this latter mode, the judicial power of the “United States” is not necessarily in force; it is legislative power that is in force. Chief Justice John Marshall once wrote that legislative courts are incapable of receiving judicial power. See American Insurance v. 356 Bales of Cotton, 1 Pet. 511, 7 L.Ed. 242 (1828).
But, here’s the rub. Statutes granting original jurisdiction to the federal courts must be strictly construed. The Sherman Act specifies that an Article III constitutional court is the only court with original jurisdiction over federal antitrust cases. This law was first enacted in 1890 A.D., and the court with original jurisdiction is the district court of the United States, created under Article III.
Now consider just two of the major problems we have isolated in the Act of June 25, 1948. Evidently, Congress attempted to re-define the name of this court in such a way as to institutionalize the pretense that it had become a legislative court, synonymous with the United States District Court, where constitutional guarantees are not enforceable. See Balzac v. Porto Rico, 258 U.S. 298 (1922). Similarly, we believe that Congress attempted to proceed on the basis of the rebuttable presumption that the several States of the Union had become federal Territories.
Such attempts are unconstitutional, in part because the Ex post facto prohibition in the U.S. Constitution expressly bars Congress from retroactively re‑defining the term “district courts of the United States”, as that term was used in the Sherman Act as amended in 1911. Similarly, the Tenth Amendment and the Guarantee Clause prevent Congress from treating the several States as political subdivisions of the District of Columbia. There are other reasons why we believe this Act is unconstitutional, but we will not belabor them here.
Another way of proving that federal jurisdiction is lacking in the case against Microsoft, is to examine closely the Expediting Act, under which your case went up to the United States Court of Appeals. Compare 15 U.S.C. 29 (never enacted).
This Act also specifies that the Circuit Courts have jurisdiction over expedited appeals that originate in the district court of the United States, and not the United States District Courts. Once again, the Expediting Act pre-dates the Act of June 25, 1948, so it must be referring to the Article III constitutional court, and not to a legislative court and certainly not to any federal court proceeding in legislative mode, regardless of name.
Furthermore, you will note that the Expediting Act refers expressly to cases in which “the United States is the complainant” ‑‑ further evidence of judicial mode. We are quite confident when we say that the “United States” and the “United States of America” are not one and the same. Since the latter term is also found in the U.S. Constitution, it cannot be re-defined by Congress either. We believe we now have enough evidence to prove that the “United States of America” [sic] are routinely designated the complainants, in part to avoid convening constitutional courts and to avoid proceeding in judicial mode.
As we have demonstrated above, these efforts by employees in the U.S. Department of Justice are clearly contrary to law. The Guarantee Clause guarantees that the several States shall be governed by law, and not by arbitrary or capricious bureaucrats. As capable historians are fast confirming, the U.S. Department of Justice under President Clinton was rife with capricious bureaucrats; they saw in your case a means of making lots of fast bucks, because your company has been financially so successful.
Please allow us to make this important qualification: until further notice, we are not taking any position on the merits of any antitrust allegations that were brought against your company.
We hope these introductory comments serve to clarify an area of federal jurisprudence that is replete with ambiguous terminology and conflicting court decisions. Obviously, if a court never had jurisdiction, we are entirely justified in ignoring all of its decisions, no matter how correct or incorrect it may have been on the merits. Judge Jackson is also personally liable to you for damages.
For your information, we are enclosing a pleading recently filed at the Ninth Circuit, which elaborates on our challenge to the constitutionality of the Act of June 25, 1948. In particular, it carefully documents the all important distinction between constitutional and legislative courts. We trust that you will find this pleading to be rather illuminating.
Thank you, Mr. Gates, for your consideration.
/s/ Lonnie G. Schmidt
Lonnie G. Schmidt, President
and Private Attorney General
copies: Paul Andrew Mitchell
Supreme Law Firm
c/o Forwarding Agent
350 – 30th Street, Suite 444
President George W. Bush
The White House
1600 Pennsylvania Avenue
DISTRICT OF COLUMBIA, USA
Enclosure: NOTICE OF CHALLENGE TO THE CONSTITUTIONALITY
PROCEDURAL RELIEF, USA v. Makarian, Sept. 20, 2001 A.D.