Ken Lay has decided
to exercise his Fifth Amendment rights when he appears before Congress tomorrow. I imagine this may have something to do with the number of Congressmen saying they don't believe fellow executive Jeffrey Skilling lied when he testified, and may now face perjury charges. Although there's a great deal of speculation that Congressmen who took Enron cash will now be more harsh in their dealings with Enron, they're doing such a great job of screwing up this case for the Justice Department I wonder how many convictions or even indictments the JD will be able to hand down after Congress is through with its investigation.
In any case, Lay will now respond to every question posed to him with some variation of "On advice of Counsel, I exercise my Fifth Amendment right not to answer that question." No doubt Congress, the press and the pundits will all utilize this as further confirmation of his guilt in their own minds. It is certainly easy to do so; I know my personal belief, based on what I've read and heard about Enron, is that Lay did something unethical if not illegal. However, our legal system is supposed to be predicated on the theory that anyone accused of a crime is innocent until proven guilty. The ABA even takes this so far as to insist that even a client known by his attorney to be guilty should be defended to the fullest extent of the law, a measure I consider ludicrous. The Fifth Amendment is an important right under the Constitution, though it has been significantly weakened over the past ten years in the areas of double jeopardy and being deprived of property without due process, and possibily regarding indictments as well, as discussed by Steven Den Beste last week.
The right to avoid self-incrimination is a difficult right to honestly assess. If you see a person exercising it, it seems only natural to assume that means the person must be guilty. After all, an innocent man wouldn't need to protect himself against self-incrimination. Therefore, exercising the Fifth Amendment seems to be a clear indicator of guilt. It's difficult to imagine serving on a jury and being told that you can't use a defendant's decision not to testify in his own defense against him.
And yet, if exercising one's Fifth Amendment rights is used as an indicator of guilt, then the right is hollow and serves no real purpose. Although our judicial system is reasonably good, it makes mistakes. Overzealous prosecutors, incompetent public defenders, and poor judges do exist, and they do fire up the occasional brick, as has been seen in the recent spate of death row convicts using DNA evidence to demonstrate their innocence. The Fifth Amendment ensures that the guilty can't be forced to testify against themselves, but it's also an important protection for the innocent.
For the sake of argument, let's say that Ken Lay didn't do anything illegal while he was CEO of Enron, a premise that may well turn out to be true, as it appears that Enron took advantage of regulatory oversight more than it violated laws. But Congress is looking for people to scapegoat, to take the heat off them and their campaign contributions. Several members of Congress are on record stating they believe Lay broke the law. Congress's treatment of Jeffrey Skilling suggests Lay would be pulled up in front of Congress and asked leading questions intended to make him look as bad as possible. And as soon as Lay had given his testimony, there would be a mad rush of Congressmen to the TV cameras to declare they don't believe his testimony and it's clear to them he's guilty. Nothing Lay says in front of Congress is going to change their minds regarding his guilt. If he says he didn't do anything illegal, they'll say he lied. If he says nothing, they'll say he's guilty. At least if he pleads the Fifth Amendment, Congress won't have anything additional on which to base their assumption of guilt.
I have no doubt Ken Lay will be pilloried in the press and in the blogosphere for his decision to exercise his Fifth Amendment rights. After all, he's repeatedly told the press he wants to tell his side of the story; refusing to testify before Congress seems to indicate he was lying when he said that. And in the court of public opinion and in the minds of people watching this circus, it's hard not to wonder why Lay won't tell what he knows. I think there are some good reasons for even an innocent man to plead the Fifth before Congress in this case. As long as Lay's refusal to testify isn't used against him in a court of law, then the Fifth Amendment is addressing its primary purpose. It would be even more useful if those who look to attack Lay not try and use his decision to exercise a Constitutional right as further proof of his guilt.