House panel refuses to give papers on interviews to firm

WASHINGTON -- A House committee investigating the Enron affair 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 documents related to the Enron case. The subpoena was delivered 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, R-La., said Tuesday. "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 accounting firm may want to leave "their options open while they try to negotiate a solution with prosecutors," Tushnet suggested.

The episode recalled a move by tobacco company Brown & Williamson in 1994 to force Rep. Henry Waxman, D-Calif., to hand over confidential documents that Waxman's subcommittee obtained in its investigation of the tobacco industry.

Brown & Williamson's case was argued in court, and lost, by Kenneth Starr, who later became the Whitewater independent counsel.

Odds favor committee

Michael Gerhardt, who teaches law at the College of William and Mary in Williamsburg, Va., 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, Gerhardt said. 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 Duncan, including notes and reports of interviews with him, correspondence and related documents, Johnson said. At a public committee hearing in January, Duncan invoked his Fifth Amendment right against self-incrimination and refused to answer questions.

Johnson said there was no "smoking gun" in the interview material from Duncan and that "the idea that we're holding something back is ridiculous."