So when Lay's attorney, Earl J. Silbert, complained Sunday afternoon about "inflammatory statements" made by "prosecutorial" members of Congress who had reached "conclusions" before even hearing from the star witness, he really must have been delighted that a few overeager politicians had given his client at least the opportunity to whine about fairness before bailing out on a process that never was designed to be fair in the first place.
So the notion that Lay and Silbert honestly were expecting an ope-minded, helpful group of senators to greet them with softball questions Monday morning is simply absurd in the circumstances. And Silbert's letter Sunday smacks of feigned "Casablanca"-style surprise; it took them until the eve of the hearing to determine that they're "shocked. Shocked!" that some members of Congress are down on Enron these days in general and Lay in particular? Guess what? So is the rest of the country. And perhaps the entire world, or those parts of it which are paying attention.
Indeed, given the current atmosphere these days surrounding Enron and its former executives, what is surprising is not that Lay didn't testify. What's surprising is that it took him so long to realize that it was a terrible idea to begin with. What in the world were Lay and his attorneys thinking before Sunday? That he would charm the pants off the congressional committee and the heat would be turned off? Or that billions of dollars suddenly would be found and all the plaintiffs suddenly would be sated? Or there would be huge political or public relations benefit to his testimony? Perhaps Lay even believed for a while that he could and would fall on his legal sword; that he would and should take responsibility for all the terrible things that occurred within his organization?
Whatever the case, whatever fantastic or noble purposes Lay may initially have had, the lawyers clearly and finally won out. They were able in the end to convince him that the legal risks of his testimony far outweighed any conceivable benefit to testifying. They probably reminded him that Congress couldn't indict him or impose a huge money judgment against him but that prosecutors and civil attorneys could, especially if he were to say something incriminating on the record in front of the whole world. And they probably convinced him that nothing short of a miracle anyway could have rehabilitated his torn image or that of Enron.
Like the episode a few weeks ago involving Arthur Andersen accountant David Duncan, who invoked his fifth amendment right against self-incrimination and refused to testify before another congressional committee, the Lay episode shows the limitations and constraints Congress operates under when it seeks to undertake an investigation in the shadow of a larger and far more serious criminal investigation. Lay's move affirms what Duncan did and the message is clear: these people are more concerned about potential criminal charges and civil liability than they are about making friends with Congress and the American people.
I cannot say that I blame them. And I can say that if I were Lay's attorney I, too, would have been pressuring him to avoid any Congressional testimony. That's true for voluntary visits like the one planned for Monday and also if Lay is subpoenaed to testify in the future. It's certainly not a popular position to take. But it is a legally prudent one. And it means that if Lay is ever going to face judgment, or simply tell his stry, it's likely to happen in a court of law.
By Andrew Cohen
©MMII CBS Worldwide Inc., All Rights Reserved