Enron & culpability (was: Dear John Hall)
Wed, 23 Jan 2002 19:22:23 -0800
Ah no, I don't agree at all.
If they were drinking the koolaid and their actions indicate that then they
should be home free unless they meet a relatively tough standard of being
Otherwise, you simply criminalize failure. If you can't know, with a normal
effort, that your actions will be considered illegal then you should never
be convicted. Otherwise, you are effectively prosecuting people with 'ex
post facto' laws and regulations. That is not a rule of law; that is a rule
of tyranny. [Note: My standards for convicting someone goes down if the
evidence suggests that they were intentionally trying to circumvent the
spirit of the law and turn the law into a pretzel. Even then I can get
queasy. There was a WSJ story about someone who found such a loophole and
went out of their way to make sure no 'normal' people were exposed to risk.
(It involved renting stock to an insurance company. Did you know that can
be done?) He was convicted anyway. He thought he was convicted unfairly. I
had mixed feelings on it.]
A conspiracy that does not seem such when it was done is not a conspiracy.
Such a person lacks a 'guilty mind'. The only honest way to get around that
is in cases where 'even an idiot' should have seen that it was against the
The primary people who should be in the dock on the partnerships are the
lawyers and accountants who gave them the stamp of approval.
The primary reason to hang the company officers out to dry involves insider
trading and fraudulent statements about the company. The problem for the
officers is that no matter how much kookaid they were drinking, there is
almost by definition a time lag between understanding that there was a
problem and disclosing it. That is the time of their most severe criminal
liability. The other claim, particularly in civil suits, is that they
should have known sooner.
From: email@example.com [mailto:firstname.lastname@example.org]On Behalf Of Russell
Sent: Wednesday, January 23, 2002 4:53 PM
Subject: Enron & culpability (was: Dear John Hall)
John Hall writes:
>People sometimes assume conspiracy when incompetence is a better
>explanation. However, shredding documents is obstruction of justice (at
>least) and leaves a dark suspicion of criminal intent.
Fooling others and fooling yourself often go hand in
hand. The lines between preacher, conman, and entrepeneur
often are hard to see when the action is on. Most people
in these roles drink their own koolaid as well as selling
it to others, and realize that putting on a good show is
part of what they do. "Criminal intent" is and should be
a relatively low bar. You have to understand what you did.
You don't have to know that it was against the law, you
might have believed that it was all going to work out,
and you might have acted in good faith to all parties
involved. A conspiracy need not seem such when it was
done, and may overlap quite a bit with incompetence, hope,
putting too many balls into the air, and rolling the dice
once too often.
If laws were broken in the Enron fiasco, I will shed no
tears for those who are jailed. The law is there in part
to point out the lines, even if they were unknown or murky
or seemingly irrelevant when the deeds were done.
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