Smoke Signals From Washington

If you are wondering how angry Congressional investigators are about the way Arthur Andersen has handled its accounting responsibilities to Enron and Enron's shareholders, wonder no longer. They are very angry. Very, very angry.

So angry, in fact, that they are taking the extraordinary step of requiring a key witness, former Andersen auditor David Duncan, to come from Houston to Washington to tell them in public before television cameras what they already know: that Duncan intends to invoke his Fifth Amendment right against incrimination and will not testify Thursday without a grant of immunity.

The move by the House Energy and Commerce Committee is an unwelcome and unwanted signal - to Duncan and other Andersen and Enron witnesses who may be called to testify - that the panel is determined to crack down on anyone who destroyed Enron-related documents.

The stand being taken by congressional investigators makes it loud and clear that there will be no lawyer-to-lawyer niceties, no informal handshake deals, and no settling for the spirit rather than the letter of the law. If you don't want to fully cooperate on our terms, the Committee is telling Duncan and his Andersen and Enron cronies, then you'll get no break from Congress.

Duncan's attorney, Robert Giuffra, sounded angry when he told the Committee in a letter that his client "should not be punished for exercising his constitutional rights."

But Giuffra should be neither angry nor surprised that his client had to make such a miserable trip. Requiring a Congressional witness to actually come before Congress - even if it is simply to utter a few words designed to invoke Fifth Amendment protection - is hardly "punishment." It's simply the technical requirements of the law, requirements that sometimes are "waived" by agreement between witness and inquisitor.

It's worth noting that Duncan has already met informally with the same investigators who now are calling him onto the mat. That fact tends to the raise the question of what precisely went on during those conversations to turn panel members into such sticklers.

If Giuffra was so concerned about the burden the trip to Capitol Hill would cause his client, he should have fought more vigorously either for immunity, which would have made the trip worthwhile, or for a delay in his client's testimony, which also might have taken some heat off Duncan.

Now the only real unanswered question going into Thursday's hearing is just how far House panel members will take this whole question-and-no-answer Kabuki dance. Will Duncan be asked once if he intends to invoke his Fifth Amendment right on all questions? Or will he be asked specific, substantive questions, requiring him to say over and over again - in front of the cameras and the world - that he intends to invoke his Fifth Amendment right. Stay tuned.

Meanwhile, the scorched earth tactics aren't likely to do much to the investigation itself. Either Congress will conside Duncan's public and sworn testimony so critical that it will grant him immunity or it won't. That immunity would be either "use" immunity or its broader cousin, "transactional" immunity.

If Congress does grant immunity, I suspect it would be only after Congressional investigators have a long talk with the FBI and any federal and state prosecutors who may be sniffing around Duncan for his apparent role in how Andersen mishandled Enron-related documents.

If prosecutors say that Duncan's Congressional testimony simply isn't worth letting him off the hook on potential criminal charges, we may never hear Duncan's story under oath. On the other hand, if the prosecutors tell Congress that there isn't a great criminal case against Duncan, or if they tell panel members that Duncan isn't worth the trouble, than the recently-fired number-cruncher just may get his immunity offer.

Which he'll be free to either accept - which means public testimony under oath before the Committee - or reject, which means probably a formal contempt of Congress charge. Things have started off poorly for Duncan in this Congressional investigation. They can get better for him or a whole lot worse.



By Andrew Cohen © MMII, CBS Worldwide Inc. All Rights Reserved
  • CBSNews.com staff CBSNews.com staff

Comments