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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

If the Enron execs were to get a subpoena from a grand jury, could they plead the fifth amendment like they're doing now, or would they have to answer? If they have to answer, why doesn't the government stop wasting time and send this to a grand jury?

 

Response:

That's an excellent question.

The answer is that, yes, they can claim the Fifth if and when they are called before a federal grand jury (and I will bet you that there is at least one federal grand jury already looking into this . . . and there may be more, and may be state grand juries, too, before it's all over).

To claim the Fifth Amendment privilege, you have to (a) be compelled (b) to give testimony (c) that incriminates you, i.e., that provides evidence which can be used to convict you of a crime. A subpoena--whether a Congressional subpoena or a grand jury subpoena--qualifies as compulsion, as being compelled. Both before Congress Lay and the others would be asked to speak, to "testify," so that element is met, and we can assume, I think, that what they say would to some degree at least incriminate them.

As I said, I am sure grand jury proceedings are already going on, in secret, which grand jury proceedings always are. Congress, which does not have the power to indict Lay or the others, i.e., to charge them with crimes, is simply making political hay out of the opportunity to denounce what they did . . . which is probably not a bad thing. (Especially since Congress does have the power to take steps to try to ensure that this sort of thing does not happen again.)

SWB

2002

  

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