WASHINGTON — Kenneth Lay, Enron's former chairman, exercising his constitutional right against self-incrimination, has decided not to testify before Congress on Tuesday about the company's collapse, a spokeswoman said.
Lay's decision on Sunday follows Congress' hostile questioning last week of Jeffrey K. Skilling, his successor as Enron's chief executive. Three lawmakers involved in congressional investigations into Enron said on Sunday that they had doubts about whether Skilling's testimony was true.
One lawmaker, the chairman of a committee investigating the company, said Skilling might be in jeopardy of being charged with perjury. Skilling's lawyer said his client had been completely truthful.
In what would have been the highlight of congressional hearings on Enron, Lay had originally been scheduled to appear before two committees last week but abruptly backed out after his lawyer said he feared the hearings would be too "prosecutorial."
The lawyer, Earl J. Silbert, cited comments by lawmakers who suggested that criminal activity might have occurred at Enron. But congressional investigators said Lay might have been daunted by the release of a report by a special committee of Enron's board that said he failed in his oversight.
After Lay refused to appear voluntarily, lawmakers issued subpoenas for him, and he is still expected to appear Tuesday before the Senate Commerce Committee. But on Sunday night, Lay's spokeswoman, Kelly Kimberly, said, "Under the instructions of counsel, Mr. Lay will exercise his Fifth Amendment rights at the hearing Tuesday."
Lay plans to give the same answer to the House Financial Services Committee, which has issued a subpoena for him to appear on Thursday.
Enron employees have complained that after top executives had sold huge amounts of stock, the company barred them from selling Enron shares in their 401(k) plans last fall as the price was plummeting.
The Labor Department announced Sunday that it was seeking to oust the trustees of Enron's 401(k) plan because they had not adequately protected the participants. Unless the trustees agreed to step down, the department said, it would seek a court order to remove them.
Skilling, Lay's protege, was better known as the sharp-minded financial expert who built Enron's huge energy-trading business. Lay himself was the company's genteel public face, master of the legal and political nuances of deregulation. Congressional investigators say they thought Lay did not want to have to take the Fifth Amendment on television — as four of his former subordinates did last week.
But it is not clear whether his decision on Sunday was affected by lawmakers' attacks on Skilling's testimony.
On Thursday, Skilling, who resigned from Enron in August, testified that he was unaware of the company's use of complex partnerships to hide losses and debts. Those partnerships are the focus of criminal and civil investigations.
While other executives said Skilling was given advance warning of looming problems with the partnerships, Skilling said he heard no word of them. While two board members testified that, in their understanding, Skilling had to approve transactions with the partnerships, Skilling told the panel that he did not — and was not supposed to — approve individual deals with what were called the LJM partnerships.
On Sunday, on "Face the Nation," Rep. Billy Tauzin, R-La., chairman of the House Energy and Commerce Committee, which heard Skilling, said, "I'm afraid he may have put himself in some legal jeopardy."
On the same program, Rep. James Greenwood, R-Pa., chairman of the Energy and Commerce subcommittee that is leading the Enron investigation, called Skilling's testimony "noncredible" and added: "It was 'The dog ate my homework.' I don't think he was forthcoming with us at all."
A lawyer for Skilling, Bruce Hiler, denied that Skilling said anything untrue. "There is no basis for the allegations being made concerning my client's testimony," Hiler said. "Mr. Skilling has cooperated with regulators and Congress, and we are not going to respond to attempts to twist that testimony, and the testimony of other witnesses, to fit the predetermined views of some. This is a complicated matter with complicated facts easily misunderstood and misconstrued."
Other lawmakers said they, too, doubted what Skilling had said. "Nobody does think he was telling the truth," said Sen. Ernest Hollings, D-S.C., chairman of the Senate Commerce Committee. "I don't believe he thinks so."
Skilling's testimony "was totally incredible," Tauzin said. "I mean, he was out of the room, the power was out, he never got the memo?"
"This is the guy in charge of the corporation," Tauzin added. "To believe that, you would have to believe that every time you get in a cab, the cabdriver's not really driving the car. It's just incredible."