When the time came earlier this month for executives from Enron Corp. to explain their roles to Congress in the events that led to the company’s collapse, all the top officials whose actions are now being examined by federal prosecutors chose to invoke their 5th Amendment right against self-incrimination.
All, that is, except Jeffrey Skilling, Enron’s former chief executive.
In a decision that has left legal experts and other Enron executives flummoxed, Skilling spent much of a day on Capitol Hill taking hostile questions from members of the House Energy and Commerce Committee.
As a result, Skilling is now locked into a series of answers that can be used against him, regardless of the direction the criminal case takes.
On Tuesday, he returns to Congress, this time to answer the questions of a Senate committee.
Why is he doing it? The answer appears to be based in part on the character of the man, as well as the unique circumstances of the sprawling Enron investigation. It is, in essence, a high-risk, high-wire legal strategy.
Having already cooperated in recent months with other investigators, Skilling and his lawyers gained access to crucial documents that could help them formulate their legal strategy. He had little to lose by repeating before Congress much of what he had already said, rather than suffering the embarrassment of taking the 5th.
The risks, according to white collar defense lawyers and prosecutors, are almost self-evident. People who take public and irreversible positions in an unfolding criminal case may be confronted by their own words if they are ever called upon to testify at trial, increasing the legal jeopardy they face regardless of whether they did anything wrong.
“Anybody who is really under severe scrutiny, as so many of these Enron people would be, is absolutely going off the high board without looking down into the pool if they testify before Congress,” said Jack Bray, a prominent white collar defense lawyer at the King & Spalding office in Washington. “For everybody who has accomplished anything by doing it, there are nine guys splattered on the bottom of the pool.”
There is plenty of evidence that Skilling has suffered far more damage, at least in terms of public relations, than even the former chairman of Enron, Kenneth Lay, who chose to invoke the 5th. Lay took an hour of public attacks, while Skilling’s testimony has been parsed, criticized and even held up as an example of possible perjury.
Asked about the reasons behind the decision to testify, Bruce Hiler, Skilling’s lawyer, said, “Jeff explained when he appeared before the House why he was testifying. He said he felt he owed it to the men and women of Enron and that he hadn’t done anything wrong.”
Enron Vice President Sherron Watkins is scheduled to testify at the same hearing.
