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Friday, December 06, 2013, 06:39 am PT (09:39 am ET)

WSJ blasts Apple e-books antitrust judge in scathing editorial

A new opinion piece lambasts Judge Denise Cote, the federal judge in charge of the Justice Department's antitrust suit against Apple, for being "abusive" and "shredding the separation of constitutional powers" by appointing and granting broad authority to antitrust monitor Michael Bromwich.

Bromwich

Michael Bromwich | Source: ZUMA Press via mnn.com


The Wall Street Journal's harsh critique mirrors many of the grievances outlined by Apple in the iPhone maker's complaint to the court last week, taking issue with Bromwich's fees — which exceeded $100,000 in just his first two weeks — and accusing Cote of granting Bromwich "carte blanche to act as the inquisitor of all things Cupertino."

Judge Cote "essentially ruled before hearing the evidence" against Apple and her appointment of an external monitor at all, let alone Bromwich, whom the Journal calls "her friend," is viewed by the paper as a "flatly unconstitutional" violation of her mandate in the case.

The "judicial duty" under the Constitution's Article III vests judges with the power to resolve "cases and controversies." Prosecutors enforce laws, conduct investigations and uncover evidence. Judges aren't supposed to appoint their own agents to annex such activities reserved for the executive branch. Mr. Bromwich has rewritten his job description to investigate Apple all over again, not simply monitor if Apple is abiding by the terms of the court judgment while it appeals the case.


The Journal continues to rake Bromwich over the coals, painting him as a "political fixer" linked to the investigations of the BP Horizon deepwater oil spill and the Reagan administration's Iran-Contra affair. Bromwich's service as the Justice Department's inspector general is also called into question, with the revelation that Judge Cote herself penned an endorsement for Bromwich that helped get the prosecutor confirmed by the Senate despite concerns about conflicts of interest.

Judge Cote's "condominium with Mr. Bromwich is offensive to the rule of law and a disgrace to the judiciary," the paper asserts in a final, biting flourish.

Not ordinarily in such an incendiary mood, the Journal may be coming to the aid of its News Corp. stablemate and Apple's fellow antitrust defendant, publisher HarperCollins, which Fortune's Philip Elmer-Dewitt points out was originally averse to joining with Apple and only did so after a personal appeal from Apple's then-CEO Steve Jobs to News Corp. founder Rupert Murdoch.