Letter From America : Kenny-boy Lay and the Enron Five were not the only ones on the Hill this week pleading the Fifth, writes Patrick Smyth
Largely unnoticed by the mainstream media, Craig Rosebraugh, a former senior official with the Earth Liberation Front, invoked his Fifth Amendment right against self-incrimination more than 40 times during an appearance before the House Resources Sub-committee on Forests and Forest Health.
The committee is so frustrated with Mr Rosebraugh, the former leader of a group implicated in a series of environmentally motivated fire-bombings in the north-west, that it may charge him with contempt.
Lawyers point out that the protection of the Fifth is far from blanket.
Mr Rosebraugh refused to answer some questions that are not protected by the constitutional right.
Those questions will be submitted to him in writing, and if he refuses to answer again, the sub-committee chairman, Mr Scott McInnis (Republican, Colorado) says he will ask the sub-committee to charge Mr Rosebraugh with contempt of Congress.
Brings you back a bit.
Remember the Hollywood 10? The 10 writers and producers who defied the House Un-American Activities Committee in 1947 with their refusal to testify about their membership of the Communist Party.
In fact they claimed their right to silence under the First Amendment, the right to free speech. But they had been advised by their lawyer that the Supreme Court, with its liberal New Deal 5-4 majority, would also, if it came to it, uphold their right under the Fifth - hence Senator Joe McCarthy's Fifth Amendment communists jibe.
Unfortunately for them, two members of the court died before the appeal against their one-year jail citation for contempt reached it, and the new conservative majority refused to review the sentence.
Dalton Trumbo, one of those who served a year, admitted later ruefully: "We didn't know how hot the water was." For others, non-co-operation meant blacklisting and unemployment, and forced exile for many.
So will today's "Fifth Amendment capitalists" end up in jail?
Some of them certainly deserve to, but most likely not, unlike Mr Rosebraugh, for defying Congress. (Mr Jeffrey Skilling, Enron's arrogant former CEO, and almost certainly one of the villains of the piece,thought he could outwit his interrogators and agreed to testify. He may well pay the price with perjury charges).
The Fifth, the principle that no person "shall be compelled in any criminal case to be a witness against himself", owes its place in the Bill of Rights, as the first 10 amendments to the US Constitution are known, to the then recent memories of English and European star chambers.
It is an important protection in criminal cases and spawned the Miranda rights declaration which the police must read to all arrested persons.
And recourse to it has a long history in Congress. Gangsters invoked it during Senator Estes Kefauver's probe into organised crime (1950-1951), as did labour bosses during the 1957 inquest into trade-union corruption. Robert Kennedy, acting as counsel to the Senate committee investigating organised crime, made one of Jimmy Hoffa's teamster associates take the Fifth Amendment publicly more than 60 times.
Several witnesses in the Watergate case brokered the waiving of the Fifth Amendment rights in return for immunity from use of their testimony in court and Gordon Liddy, mastermind of the original Watergate break-in, went to jail for refusing to testify.
When Col Oliver North testified in the Iran-Contra hearings in 1986 he received immunity, and later, his criminal conviction would be overturned because prosecutors could not prove that his congressional testimony did not influence witnesses at the criminal trial.
The greatest number of witnesses to assert their right to it since the 1950s did so during the two-year investigation into the 1996 Clinton-Gore fund-raising campaign.
Mind you, if Mr Lay had been called to testify before Congress only a few years ago, he might have been able to escape the public glare.
After the 1957 suicide of a researcher called before HUAC, the House, but not the Senate, agreed routinely to accede to the requests of subpoenaed witnesses for cameras and microphones to be turned off. In some cases they even excused those who were going to plead the Fifth from attending.
Not these days, however. The privacy rule was abandoned for the hearings on political contributions to the Clinton-Gore campaign.
Enron's lawyer, Mr Robert Bennett, complained to no avail at the committee's determination to bring Mr Lay before it even though he would say nothing.
"The only purpose that serves is to try to embarrass and humiliate someone," he said." These hearings are supposed to be fact-finding for purposes of legislation. They are not supposed to be forums for personal attacks on people who exercise their constitutional rights," he said.
Dream on.
Congressmen who were only delighted to take Enron's money a few months ago have to be seen to be laying about their former paymasters.
There's a matter of credibility to restore, and this is an election year after all.
Which reminds me . . . Serving his year in the pen in 1950, writer Ring Lardner met in the prison exercise yard Parnell Thomas, none other than the chairman of HUAC who had sent him there.
The chairman had been convicted of swindling the government by putting non-existent workers on his congressional payroll and pocketing their salaries. Fancy that.
