Of Course Solyndra Execs Will Take the Fifth

Two top executives at Solyndra Inc. plan to invoke their Fifth Amendment rights not to incriminate themselves and will decline to answer questions from the investigative panel of the House Energy and Commerce Committee at a hearing this Friday. The panel is probing the $535 million federal loan guarantee given to the solar company which has since filed for bankruptcy protection.

Of course they were advised by their attorneys to plead the fifth because the executives now face a possible criminal probe by the Federal Bureau of Investigation, which raided Solyndra’s Fremont, Calif. offices earlier this month. If the executives make an incorrect statement at the hearing, they could be charged by the FBI with obstructing justice. The FBI and Energy Department won’t say what prompted the probe or which, if any, executives are being targeted.

That’s why their attorneys advised them to take the Fifth--the executives have to be careful not to utter any statements before Congress that could be twisted into a facsimile of what they said to show that they lied.

Even if the executives don’t take the Fifth, mistakenly answer, and then try to later correct their statements, they could be charged with obstructing justice or lying during a probe.

Sure, the panel could threaten them with contempt, or it could grant them immunity. But that likely won’t happen.

Since the Solyndra executives are not in FBI custody, they’re not entitled to Miranda rights, meaning they don't have the right to silence or counsel.

The Congressional panel could refer them to a prosecutor, who could then subpoena them before a grand jury. Once there, the executives could again plead the Fifth to each question, which effectively is saying that responding could implicate them in a crime.

“This is not a decision arrived at lightly, but it is a decision dictated by current circumstances,” the executives’ attorney said in the letter to Congress.

The real problem is politicians pressuring the Dept. of Energy to guarantee loans to energy companies, like nuclear power plants or clean-energy companies. Both sides of the political aisle are guilty here of pressuring the department to grant guarantees to companies in their districts so they can win votes showing they are creating jobs.

But the Government Accountability Office has already found that the Dept. of Energy runs a ramshackle loan guarantee operation, with few benchmarks used to make sure a company is meeting loan standards or is performing, thus warranting the federal guarantee.

The DOE is largely responsible for overseeing the nation’s nuclear energy stockpile, and isn’t capable of running a financing shop—for instance, Solyndra gets to pay off its investors and lenders first before it pays back the $535 million it got from taxpayers.

Think twice about this, because the White House is now racing to beat a DOE Sept. 30 deadline to award more than $9 billion in stimulus money to clean-energy companies.

Meanwhile, solar companies operate in a notoriously-volatile sector, as China continues to undercut competitors with cheaper pricing due to cheap labor. So before the White House touts companies like Solyndra as a model for green energy, it might want to sit tight and rethink whether the government can pick winners and losers in the economy.