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The Politics of My Trial

By Ken Lay
Wednesday, September 1, 2004; Page A19

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ."

-- Sixth Amendment to the Constitution


Enron headqurters. (AP)

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At my request, my lawyers have filed motions in federal court asking for an immediate and speedy trial on the charges I face. To facilitate this, I offered to forgo discovery and to waive a jury trial, leaving it to a judge to determine my guilt or innocence.

Why, then, is the Department of Justice not willing to agree to an immediate and speedy trial? Could it be that my indictment -- curiously issued two weeks before the Democratic National Convention -- is largely political?

In an article in the Aug. 16 issue of the National Law Journal, John C. Coffee Jr., a law professor and director of the Columbia Law School Center on Corporate Governance, concludes: "To be sure, an intense political need to indict Lay may explain why prosecutors have pushed the envelope of securities and mail fraud theories to their limit. But what happens once will predictably happen again." In other words, if they can do it to me, they can do it to others.

My July 8 indictment was announced at a news conference in Washington. The acting attorney general, James Comey, referred to what had previously been known as the Enron Task Force as "The President's Corporate Fraud Task Force." Never mind that the phones are still answered "Enron Task Force" and that's what the letterhead on the stationery reads.

Comey described the Enron investigation as the most prominent among those being overseen by this presidential task force. He said: "Our joint mission is to bring corporate criminals, corporate crooks [i.e., Ken Lay] to justice in this country."

Well, if my indictment is "the most prominent" in this effort, why can't we get on to trial? Perhaps, as my lawyers said in a court filing, it's because the acting attorney general was "unable to determine whether he was announcing an indictment or holding a political rally" and finally decided on the latter. Some other statements at that rally:

• Linda C. Thomsen, deputy director of enforcement for the Securities and Exchange Commission: "[T]he president's corporate task force, which celebrates its second anniversary tomorrow . . . [has demonstrated that] just the mention of the name Enron evokes images of duplicity and greed."

• Internal Revenue Service Commissioner Mark W. Everson: "[T]he corporate culture of Enron guided by Mr. Lay is now synonymous with corporate fraud and greed at its worst. And Enron's crooked 'E' logo depicts the corporate management team at Enron -- crooked."

Are these signs of a dispassionate prosecution of crime? To me they look more like part of a political campaign. Perhaps most telling: In the Justice Department's news release on my indictment, one must get to the 19th paragraph (third from the last) before there is any mention of "presumed to be innocent unless and until proven guilty."

In March, when the Enron Task Force's long-term director, Leslie Caldwell, resigned, it was announced that Andrew Weissmann would replace her. In four months his new team did what the two previous teams were unable, or unwilling, to do after more than two years of intensive investigation: It indicted me on peripheral violations having little or nothing to do with the collapse of Enron. Then it illogically tacked me on to an earlier mega-indictment against others that had already been declared "complex." The maneuver meant that I had been accused and thus "taken off the table" as a political issue for this year's election, the assumption being that I could not possibly get an open, public trial before November.

Now, I know about politics. I have been active for years and I ask neither sympathy nor special treatment. But justice is a different issue. The tragic circumstances surrounding the collapse of Enron and the harm it caused to so many victims is something I will take to my grave. My inability to save Enron is one of my greatest regrets. But I am guilty of no crime and eager to prove my innocence. Our Constitution guarantees justice and a speedy trial. Yet, without the agreement of the president's task force, as hard as I may try, I may not be granted either.

To obtain an immediate and speedy trial, my case must first be severed from those of two other Enron executives, Jeffrey K. Skilling and Richard A. Causey, and there is good reason to do so. The other two men have not asked for a speedy trial or offered to forgo discovery or waive a jury trial. Only three of the 11 charges against me overlap with the 45 charges against them. The Enron-related charges against me cover only a 47-day period just before Enron's collapse, while charges against the other two cover a two-year period beginning in 1999. Moreover, four of the 11 charges against me had nothing to do with Enron; they deal with an obscure 1934 banking regulation (known as "Reg U") that, as far as my lawyers can determine, has been used only once previously as the basis for a criminal charge.

So the question must be asked: Will the president's task force agree to real, public litigation before the presidential election? It's ugly when there is the appearance of political influence on criminal prosecutions -- and, of course, even uglier when the reality exists. The legal case against me, standing alone, is a flimsy, hollow shell and reeks of politics.

I would ask James Comey and Andrew Weissmann: With justice in the balance, do you have a real case, based on the law and not on politics? Subject to the judge's schedule, meet me in court before November, and agree to a stand-alone trial, with or without a jury -- your option. If you agree to a non-jury trial, the trial can begin and end before the election. It will determine not only whether the charges against me are "significant" but also whether they are "real."

The writer was chairman and chief executive of Enron.


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