Washington ? Companies don’t commit crimes; people do. Apologies to the NRA for adapting its slogan. But somebody should have pointed out the obvious to the Justice Department before it indicted Arthur Andersen for obstruction of justice. You can’t send a company to jail. You can destroy the company, and that’s what the Justice Department has accomplished, whether or not it was intentional. Already, scores of clients are deserting Andersen, and merger talks with another of the Big Five accounting firms have broken down.

If Andersen dissolves and its overseas operation is bought out, what is the usefulness of this indictment? Defenders say it sends a strong signal that the Justice Department means business. To the contrary, by failing to name any individuals, the government opens the door for Andersen higher-ups to take the Nuremberg defense, which is to deny culpability and say they were just following company orders.

Until the government issued a subpoena for all documents related to Enron, lower-echelon employees of Andersen were seen destroying documents virtually non-stop. Tons of papers were shredded and countless computer files destroyed, according to the federal indictment. When the Andersen shredder at the Enron building couldn’t handle the volume, dozens of large trucks were brought in to transport the excess documents to Andersen’s main office in Houston. Operation Eradication continued even after there was an FBI agent on the premises. Workers were told to work overtime if necessary, and they carried out their mission with aplomb, having no reason to think they were committing a crime. They were following orders.

The indictment brought by the Justice Department is a cover-up of a cover-up. It doesn’t go after the crimes that caused the concealment, just the concealment. Somebody issued those orders. If government investigators fail to follow the bureaucratic chain of command to see where it leads, the question has to be asked: Who or what are they protecting?

The answer in part is a culture that condones certain behaviors. Major corporations are routinely advised to have flexible “document retention” programs to allow the swift destruction of potentially troublesome documents. Harvey Pitt, before becoming chairman of the Securities and Exchange Commission, co-authored a law review article in which he noted that there are typically a handful of key documents at the center of any crisis that should be destroyed because they are potentially libelous. The article, “When Bad Things Happen to Good Companies: A Crisis Management Primer,” advises corporate attorneys to “imbue company executives with the understanding that their documents will take on separate lives when they enter the treadmill of litigation (and) … to imagine all their documents in the hands of a zealous regulator or on the front page of The New York Times. … Each company should have a system of determining the retention and destruction of documents.”

Pitt, of course, warned that once a subpoena is issued, or is about to be issued, document destruction should be brought to an immediate halt. Andersen should have taken that advice to heart. Instead, the company is basing its defense on a technicality. While acknowledging that Andersen partners in Houston headed the effort to shred and destroy thousands of documents relating to its audits of Enron, company lawyers say that because there was no official legal proceeding under way, no crime was committed.

The government’s position is diametrically opposed and more in line with legal precedents. Whether or not a formal inquiry was in place, the document destruction was done with an eye to avoiding legal problems. By bringing charges solely against the company, the government enables Andersen’s 1,600 partners to evade responsibility and escape criminal penalty, perhaps even with most of their assets intact.

Political correspondent Eleanor Clift contributed to this column.