- The Washington Times - Wednesday, May 1, 2002

A House committee investigating the Enron collapse is refusing to give Arthur Andersen documents related to interviews of Andersen's chief Enron auditor.
The House Energy and Commerce Committee is citing constitutional grounds in its refusal to comply with a subpoena from Andersen. The accounting firm is scheduled to face trial Monday on a criminal-obstruction charge for destroying Enron-related documents. Andersen attorneys delivered the subpoena Thursday to the Office of General Counsel of the House.
In demanding documents that lawmakers are loath to turn over, embattled Andersen may be trying to buy time in the criminal trial, some analysts suggested.
"We're going to fight it," Ken Johnson, a spokesman for committee Chairman Rep. Billy Tauzin, Louisiana Republican, said yesterday. "This information clearly is protected by the Constitution's speech-and-debate clause."
Under the Constitution, that clause gives members of Congress, and sometimes members of their staffs, immunity in some circumstances from legal processes, such as responding to questions.
Andersen "has an uphill battle to get this resolved before their trial," said Mark Tushnet, a professor of constitutional law at Georgetown University.
The Chicago Big Five accounting firm may want to leave its "options open while [it tries] to negotiate a solution with prosecutors," he said.
Michael Gerhardt, who teaches law at the College of William & Mary in Williamsburg, agreed that "the odds are hugely in favor" of the House committee.
The agreement under which the Andersen auditor, David Duncan, spoke to the committee investigators cannot be violated by a private party, Mr. Gerhardt said.
Mr. Duncan has pleaded guilty to ordering the shredding of Enron documents and has agreed to cooperate with prosecutors.
The subpoena requests all documents related to the committee investigators' dealings with Mr. Duncan, including notes and reports of interviews with him, correspondence and related documents, Mr. Johnson said. At a public committee hearing in January, Mr. Duncan invoked his Fifth Amendment right against self-incrimination and refused to answer questions.
Mr. Johnson said there was no "smoking gun" in the interview material from Mr. Duncan and that "the idea that we're holding something back is ridiculous."
Rep. James C. Greenwood, Pennsylvania Republican and chairman of the panel's investigative subcommittee, said at the January hearing that Mr. Duncan had told investigators he destroyed some of his own Enron documents "in an effort to comply with Andersen's document retention and destruction policies."
Andersen attorney Rusty Hardin said he was disappointed by the committee's decision not to comply with the subpoena.
"I think we'll pursue it," he said. "I'm disappointed that they don't want us to have the benefit of knowing what Mr. Duncan was saying. It just doesn't seem fair."
Mr. Duncan's attorney, Robert Giuffra, declined comment.
On Friday, a federal judge in Houston refused to delay the trial.
Mr. Hardin, who had insisted on a speedy trial after Andersen was indicted in March, told U.S. District Judge Melinda Harmon that Andersen has been hurt by media coverage and prospective jurors have formed negative opinions about the firm.

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