WASHINGTON (AP) Enron”s lead outside auditor will refuse to testify before Congress yesterday about his role in the destruction of financial documents, his lawyer said.

With a House panel nonetheless compelling the Arthur Andersen auditor, David Duncan, to show up at its hearing, Congress” public inquiry into the shredding of documents headed for a dramatic opening.

The drama intensified at Enron”s Houston headquarters, meanwhile, with the surprise announcement that embattled Chairman Kenneth Lay, one of President Bush”s biggest campaign donors, was resigning. FBI agents have been in the building investigating Enron”s own alleged shredding of financial documents.

Duncan warned Enron”s chief accounting officer last October that the wording of the company”s draft press release announcing huge third-quarter losses could be misleading for investors, according to a memo Duncan wrote for the files on Oct. 15 that was obtained by investigators. It says his advice made after consulting with Andersen attorneys was ignored.

One of the attorneys was Nancy Temple, who also was subpoenaed to testify at today”s hearing. According to another document, Temple asked Duncan to delete her name and any reference to having consulted with the Andersen attorneys from his memo.

“If my name is mentioned it increases the chances that I might be a witness, which I prefer to avoid,” Temple wrote.

The House Energy and Commerce Committee served a subpoena on Duncan yesterday. But one of Duncan”s attorneys, Robert Giuffra, told the committee in a letter that “he will rely on his constitutional right not to testify” unless the panel grants him immunity.

Congress can compel witnesses to show up but cannot force them to answer potentially incriminating questions without granting them immunity from criminal prosecution.

Duncan already has talked to committee investigators.

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