Man Without Qualities

Saturday, May 18, 2002

The Curiouser and Curiouser Enron Ratchet

Obstruction of justice is a one way ratchet. One can be convicted of obstructing an investigation even though the investigation would have turned up nothing anyway.

Specifically, a defendant can be convicted under the federal “obstruction of justice” statute if he (or it) “corruptly” induced someone to destroy documents to impede an official investigation or proceeding. It is NOT necessary for the prosecutors to show that the defendant actually did something wrong that the investigation or proceeding might have uncovered.

But prosecutors usually try to show that defendant did do something wrong that the investigation or proceeding might have uncovered – because that helps prove that the defendant had motive to act “corruptly.”

Which makes the ongoing trial of Andersen rather odd. In that trial the prosecutors have not yet introduced substantial evidence that Andersen had committed a fraud that the investigation Mr. Duncan is alleged to have tried to obstruct would have uncovered. This is so even though the prosecutors have apparently secured the complete cooperation and extensive testimony of Mr. Duncan, the Andersen partner in charge of the Enron relationship.

And it is also worth pointing out that not a single indictment of any individual has yet been returned in the Enron matter. It’s getting a little late. Has Mr. Duncan not been able to fill THOSE gaps, either?

The media is not covering the Andersen “obstruction of justice” trial very carefully – especially the New York Times - perhaps because most of them already convicted Andersen months ago. But not everyone agrees that the trial is going as well as expected for the government, although a conviction still seems to be the most likely outcome.

If there is no conviction, look for accusations that the government “threw” the trial - maybe by failing to introduce the copious evidence that the media finds everywhere of all that "obvious and egregious fraud" that Andersen had committed and Mr. Duncan was trying to cover up.

UPDATE: The Associated Press reports: "Judge Melinda Harmon... sustained repeated prosecution objections, blocking former Andersen partner David Duncan from answering Hardin's questions about whether he believed any illegal shredding happened after he told his Enron audit staff on Oct. 23 to comply with the firm's document retention policy."

Shouldn't the jury should be told that? Isn't blocking that kind of testimony just a little bit finicky on the judge's part - regardless of the technical charges against Andersen?

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