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January 3 - February 18, 2020
On October 10, he flew to Washington for dinner and a speech at the Library of Congress by former secretary of state Henry Kissinger, an Enron consultant.
To accept those arguments is to embrace the notion that ethical behavior requires nothing more than avoiding the explicitly illegal, that refusing to see the bad things happening in front of you makes you innocent, and that telling the truth is the same thing as making sure that no one can prove you lied.
Lay’s lead attorney was sixty-five-year-old Mike Ramsey, a cantankerous Houston criminal-trial legend better known for defending murderers than for defending CEOs. But he’d won cases that seemed impossible: In 2004, he’d famously helped Robert Durst, a cross-dressing millionaire, walk away free from his Texas murder trial, even though Durst had admitted shooting his elderly neighbor, chopping up the body, and dumping the pieces in Galveston Bay.
The news of Lay’s death was met with a bizarre mix of sadness, frustration, and even suspicion. The front page of the New York Post carried a picture of Lay and a casket, accompanied by the giant headline: BEFORE THEY PUT CHEATO LAY’S COFFIN IN THE GRAVE CHECK HE’S IN IT. Coroner’s report notwithstanding, the blogosphere swirled with insistent declarations that Lay wasn’t really dead, and Web sites sprang up titled kenlaylives.com and kenlaylives.org. Many weighed in that he had somehow escaped justice by leaving earth without spending a single day behind bars.
Notwithstanding the anger of Lay’s family and friends, in the United States in 2006, a criminal trial in federal court—especially for a rich, white former CEO—hardly approximates a lynching.
Such criminal prosecutions are nothing if not complex. That was one of the lessons from Enron. That’s because much of what seems so wrong in commonsense terms is actually perfectly legal, and it’s hard to hold senior executives accountable when accountants and lawyers gave their blessings. Executives exploit this unfortunate reality.
Indeed, in many ways, Enron was a legal fraud. Fastow’s guilty plea—and Skilling’s and Lay’s convictions—were due to specific incidents where prosecutors could show that the Enron executives had crossed the line. But they didn’t speak to the larger fact that Enron’s financials were basically a complete misrepresentation of reality. “I knew that what I was doing was misleading,” Fastow told the Las Vegas crowd. “But I didn’t think it was illegal. I thought: That’s how the game is played. You have a complex set of rules, and the objective is to use the rules to your advantage.”