Wednesday, September 27, 2006
The hearing on September 28 before the House Energy & Commerce Subcommittee looking into the Hewlett-Packard internal investigation's use of "pretexting" to obtain private records has become a bit more threatening for two former H-P executives. The Subcommittee issued subpoenas, rather than invitations, to its former ethics officer, Kevin Hunsaker, and a former security chief, Anthony Gentilucci. Both left the company in the past few days because of their roles in the internal investigation. The Subcommittee invited the other witnesses from the company, Patricia Dunn, Mark Hurd, and Ann Baskins, to appear, although it is not an invitation one turns down easily. Hunsaker and Gentilucci were identified during a company press briefing on September 22 as those inside the company with primary responsibility for the internal investigation and the use of outside investigators who engaged in pretexting to obtain the telephone records of journalists, board members, and other executives.
The interesting question will be whether Hunsaker and Gentilucci testify at the hearing or assert their Fifth Amendment privilege. A New York Times article (here) indicates that Gentilucci's attorney said that a decision on that issue has not been made, and Hunsaker's lawyer has not indicated whether his client will testify. Given that California Attorney General Lockyer has asserted that criminal conduct took place in connection with H-P's investigation, and the U.S. Attorney's Office for the Northern District of California also is conducting an investigation, it may be prudent for those closest to the alleged misconduct to protect themselves by asserting the Fifth Amendment at this point. It is certainly not good publicity, and the Subcommittee members may force them to assert the constitutional privilege publicly at the hearing, but the more important issue is what comes down the road. If there is some assurance that neither will be charged by California, or that they are not targets of a federal grand jury investigation, then cooperating with the Subcommittee by answering questions may be the better course. Without that comfort, it may be that a "protective" assertion of the self-incrimination privilege is the better course at this point in time. It is a difficult decision, and one that often has to be made with less-than-complete knowledge of the situation or the consequences. (ph)