Enron's suits bring `Fifth' back in vogue

February 13, 2002|By Jules Witcover

WASHINGTON - If nothing else, former Enron boss Kenneth Lay and a number of his associates in the latest stock market scandal have dusted off and brought back an old expression that to many Americans has become the functional equivalent of "I'm guilty."

That would be, of course, "taking the Fifth," as in the Fifth Amendment to the Constitution, which holds in part that no person "shall be compelled in any criminal case to be a witness against himself."

Not since the days of the colorful communist-hunting and congressional hearings of the late 1940s and 1950s and the crime and labor racketeering investigations of the 1950s has refusing to testify on grounds of the Fifth Amendment been so in vogue.

Enron bigwigs who until only months ago were perceived as shining examples of the American enterprise system are joining the fraternity of old mobsters and forgotten political lefties who won infamy by invoking their legal protection against getting the goods on themselves.

There is, however, a major and ironic difference between the Enron corporate geniuses of today and the alleged crooks, communists and fellow-travelers of half a century ago or more. While many citizens of that time castigated witnesses for "hiding behind the Fifth," a significant number of others defended them as upholders of civil liberties guaranteed by the Constitution. You don't hear that being said today of Mr. Lay and his associates.

The reason is that the hearings of the old House Un-American Activities Committee (HUAC) and the Red-hunting committee headed by the infamous Sen. Joseph R. McCarthy of Wisconsin were perceived by many as witch hunts. Many witnesses invoked the Fifth Amendment not only to protect themselves from possible criminal prosecution, but also to avoid having to finger friends and colleagues.

While the bulk of citizen observers may have accepted that "taking the Fifth" was, as McCarthy insisted, an admission of guilt, many others at the time saw a decency in its use by witnesses who believed their friends and colleagues were innocent of any wrongdoing.

Also, the notion of being interrogated about one's political beliefs, let alone sent to jail for declining to answer, was abhorrent to many, and won some public support for those who refused.

McCarthy and other communist-chasers came to label anyone who used his constitutional protection against self-incrimination as a "Fifth Amendment communist." We haven't reached the stage yet where the alleged Enron culprits are being called "Fifth Amendment capitalists," but it's probably fair to suggest that those who have used and will be using the legal protection will likewise be assumed to be guilty in doing so. Mr. Lay, in invoking the Fifth, alluded regretfully to this reality.

From a legal point of view, Mr. Lay can't be touched for invoking the Fifth, and a Georgetown law professor I've talked to says that considering what has already come out about the Enron case, if he were Mr. Lay's lawyer he would advise him to do just that. But, he adds, "if I was his clergyman I guess I'd advise him to do the moral thing and testify."

In this light, the decision of former Enron chief executive Jeffrey Skilling to give testimony rather than claiming the Fifth may have seemed more honorable, but it was legally risky. Already, one congressional committee chairman has indicated that Mr. Skilling is flirting with a perjury rap.

The origins of the Fifth Amendment go back to England and hatred of the old Star Chamber proceedings, in which confessions were wrung from subjects accused of unacceptable religious practices and other "crimes." The Founding Fathers wanted to make sure there was none of that here.

In the late 1940s and 1950s, however, the Red-hunting congressional committees themselves were highly controversial and often suspect of sinister and unfair methods. Today, there isn't any quarrel about Congress investigating what happened at Enron, at least not yet.

That could change, though, if what is now talked about as a corporate scandal becomes a political one, with Democrats using the hearings to lay it at the White House doorstep. Congressional hearings, now as then, often have a way of turning into partisan brawls.

Jules Witcover writes from The Sun's Washington bureau.

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