05/01/2014 archive

Why Does Refusing to Put Fraudulent Banks into Receivership Help the Economy?

by William Black, New Economic Perspectives

Posted on April 30, 2014

Conservative economists love “creative destruction.” They can’t wait to “get their Schumpeter on” when a business fails and thousands of workers lose their jobs. There is no more “creative destruction” conceivable than when we put a bank that has become a fraudulent enterprise into receivership, remove the controlling officers leading the fraud, and sell the bank through an FDIC-assisted acquisition. Indeed, the pinnacle of creative destruction would be doing this with a systemically dangerous institution (SDI) through a process that split the supposedly “too big to fail” bank into smaller components that (1) were no longer large enough to pose a systemic risk, (2) were more efficient than the bloated SDI, (3) no longer extorted a large (implicit) government subsidy that made real competition impossible, and (4) no longer had dominant political power via crony capitalism. Unlike the situation in which an SDI collapses suddenly in the midst of causing a global crisis when its frauds cause a liquidity crisis, it is vastly easier to put fraudulent SDIs in receivership in today’s circumstances. Unlike Arthur Anderson, the receivership power allows us to keep the enterprise alive and create more competitors rather than fewer.

As I often remarked, it is a testament to the financial and moral sophistication of our successors as financial regulators relative to our primitive era that they have realized that keeping fraudulent CEOs in charge of our largest banks – and virtually never putting such banks into receivership however massive and damaging their serial felonies – is the key to achieving financial stability. Their system, it must be admitted, has proven far superior. GDP losses are merely far more than 100X greater in the current crisis than in the savings and loan debacle. The jihad against effective regulation and prosecution of elite control frauds has been an enormous success. The primary question is whether to classify the resultant epidemics of accounting control fraud as “unintended consequences” of the three “de’s” (deregulation, desupervision, and de facto decriminalization) or as a very “intended consequences.”

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Lanny Breuer’s infamous “lamentations” speech (while head of DOJ’s Criminal Division) underscored how he fell hook, line, and sinker for the absurd claims of economists hired by today’s most elite fraudulent banksters that banks (and bankers!) should be “too big to prosecute.” By Breuer’s own bumbling admission, he lay awake at night for fear that his (always hypothetical) prosecutions of the major banks might “cause” a fraudulent bank to “fail.” This is, of course, heresy under the Schumpeterian creed of “creative destruction,” but theoclassical economists are very forgiving of their co-religionists who get rich by spreading heresy in the service of fraudulent elites.

Breuer was so bad that he obscured what we primitive regulators and white-collar criminologists had emphasized for decades. First, no banker is “too big to jail.” They are easily replaceable and removing a fraudulent bank CEO from power is the single most productive act that regulators and prosecutors can accomplish. Breuer and Attorney General Eric Holder were involved in a con when they claimed that their failure to prosecute the senior bank officers leading the frauds was in any way related to “too big to fail.” Hilariously, they even applied the “rationale” for non-prosecution to former bank officers – as if a bank would fail “because” its former officers were prosecuted. It is a testament to the weakness of the reportage that this claim was not treated with ridicule.

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The Bush and Obama administration have already allowed the statute of limitations to run on vast numbers of frauds led by the CEOs of mortgage bankers and the 10 year statute of limitations applicable to federally insured banks (which we obtained in response to the S&L debacle) is rapidly running. The recent DOJ IG report documented the hollow nature of the FBI investigations related to the crisis. Even when the statute of limitations has not run it becomes very difficult to try “old” cases because of the loss of documents and memory and the feeling of judges and juries that the matter cannot have been terribly grave if the FBI ignored it for eight years. Even if Holder had a “Road to Damascus” conversion today and tried to prosecute the elite bank frauds that drove the crisis he would be far too late. The DOJ will commit its greatest strategic failure to uphold the rule of law. That does not mean that it could not bring a dozen prosecutions against the most destructive and fraudulent bank CEOs during the waning years of the Obama administration, but there is no evidence that the FBI is even investigating those frauds.

Instead, Holder has given up on prosecuting the CEOs that led the frauds that caused our crisis. The new DOJ press leak indicates that DOJ may charge two foreign banks with committing frauds unrelated to the financial crisis. This is hardly a major accomplishment, but it is all that Holder can bring himself to do so it was ballyhooed in “Deal Book” under this sad title “2 Giant Banks, Seen as Immune, Become Targets.”

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Deal Book has written another article praising a moral and policy travesty. Read beyond the article’s propaganda and you will find that it actually contains admissions by senior DOJ officials confirming that our description of the disgraceful policies that we charged that DOJ and the anti-regulators were following was correct and confirming that our conclusion that such policies were deeply criminogenic had proved correct. Bharara admitted that the GBH Doctrine created a “gaping liability loophole that blameworthy [controlling bank officers] are only too willing to exploit.” Until we appoint regulators with the spines, integrity, brains, and courage to realize that our paramount function is to place banks led by frauds into receivership and end the CEO’s ability to lead a control fraud we will fail to have a sound banking system and we will fail to restore the rule of law.

Big Banks Erred Widely on Troubled Mortgages, U.S. Regulator Confirms

By MICHAEL CORKERY, The New York Times

April 30, 2014, 8:14 pm

The latest analysis found that at least 9 percent of the errors discovered in the review involved banks improperly denying loan modifications that would have prevented foreclosures. The report also found that more than half of the errors related to administrative flaws and improper fees charged to homeowners during the foreclosures process.

Last year, 15 financial institutions settled with banking regulators, making payments that totaled $3.9 billion to more than four million homeowners. The settlements ended the independent reviews, which had been costly and lengthy. As part of the deals, the banks agreed to pay the homeowners, regardless of whether they had been harmed.

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Bank of America, for example, had reviewed only 6 percent of its files, revealing a financial error rate of 8.9 percent. Wells Fargo had examined about 9.6 percent of its records, finding an error rate of 11.4 percent.

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Before the reviews, regulators discovered many problems with the way banks had handled foreclosures after the financial crisis, including bungled modifications and the practice of “robo-signing,” where reviewers signed off on mounds of foreclosure paperwork without verifying its accuracy. Other errors included wrongful foreclosures and improper fees charged to homeowners.

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In particular, the Government Accountability Office, an auditing arm of Congress, said this week that regulators had not demanded specific terms for $6 billion in foreclosure prevention measures that the banks agreed to undertake, in addition to the $3.9 billion in cash pay outs to homeowners.

It also said the decision to cut short the review left regulators with limited information about actual harm to borrowers when they negotiated the $10 billion settlement.

Regulators had calculated a preliminary error rate of 6.5 percent for all the banks when they negotiated the settlements last year, according to the G.A.O.

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It was one of the largest and most costly bank failures in American history. And the bank’s collapse could end up costing the F.D.I.C. even more money because of the Independent Foreclosure Review.

It is possible that the F.D.I.C. will have to cover at least some of the costs of the $8.5 million payouts, banking specialists said. Specifically, the F.D.I.C. could be responsible for any errors in the first three months of 2009 when the federal regulators owned IndyMac’s assets and ran its servicing operations, they said.

It’s Good – no – Great to be the CEO Running a Huge Criminal Bank

By William K. Black, New Economic Perspectives

April 29, 2014

Every day brings multiple new scandals.  At least they used to be scandals.  Now they’re simply news items strained of ethical content by business journalists who see no evil, hear no evil, and speak not about evil.  The Wall Street Journal, our principal U.S. financial journal ran two such stories today.  The first story deals with tax evasion, and begins with this cheery (and tellingly inaccurate) headline: “U.S. Banks to Help Authorities With Tax Evasion Probe.”  Here’s an alternative headline, drawn from the facts of the article: “Senior Officers of Goldman Sachs and Morgan Stanley Aided and Abetted Tax Fraud by Wealthiest Americans, Failed to Make Required Criminal Referrals, and Demanded Immunity from Prosecution for Themselves and the Banks before Complying with the U.S. Subpoenas: U.S. Department of Justice Caves in to Banker’s Demands Continuing its Practice of Effectively Immunizing Fraud by Most Financial Elites.”

Oh, and the feckless DOJ (again) did not require any officer who committed the felony of aiding and abetting tax fraud to resign or to repay the bonuses he “earned” through his crimes.  But not to worry, the banks – not the bankers – may have to pay fines as the cost of doing their felonious business.  The feckless regulators did not even require Goldman Sachs and Morgan Stanley to disclose to shareholders their participation in the program.

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The context of this WSJ story is the broader series of betrayals of homeowners by the regulators and prosecutors led initially by Treasury Secretary Timothy Geithner and his infamous “foam the runways” comment in which he admitted and urged that programs “sold” as benefitting distressed homeowners be used instead to aid the banks (more precisely, the bank CEOs) whose frauds caused the crisis.  The WSJ article deals with one of the several settlements with the banks that “service” home mortgages and foreclose on them.  Private attorneys first obtained the evidence that the servicers were engaged in massive foreclosure fraud involving knowingly filing hundreds of thousands of false affidavits under (non) penalty of perjury.  As a senior former AUSA said publicly at the INET conference a few weeks ago about these cases – they were slam dunk prosecutions.  But you know what happened; no senior banker or bank was prosecuted.  No banker was sued civilly by the government.  No banker had to pay back his bonus that he “earned” through fraud.

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Everyone involved in the faux foreclosure review – the “consultants” hired who to do the review, the mortgage servicers, the (non) regulators, and the GAO performed abysmally.  The “review” was an expensive farce.  The regulators did not conduct the review.  The servicers did not conduct the review.  The consultants were chosen by the servicers, which the regulators should never have allowed.  The consultants were allowed to have additional conflicts of interest such as having worked on the loan foreclosures they were reviewing.  The “design” of the (non) study was an embarrassment.  The (non) study collapsed almost immediately because it turned out that many of the servicers’ files were so pathetic that the study “design” could not be followed.  Rather than stop and reconsider the implications of those file defects for the likelihood that the servicers engaged in fraud in order to foreclose the regulators decided to continue.  The more severe the file defects the greater the incentive of servicers to engage in foreclosure fraud.

The consultants were soon hopelessly behind schedule and budget because of the severity of the loan file defects.  Eventually, the (non) regulators gave up and brought the (non) study to an end, not with a bang but with a whimper.  Real regulators would have had great negotiating leverage.  The servicers had agreed to conduct the study and failed.  It would cost the servicers more to complete the review than simply boost the payout by several billion dollars.  The two obvious answers were to continue the study and order interim payouts or to stop the study and in return for a significantly larger payout to homeowners.  Naturally, the Office of the Comptroller of the Currency (OCC) and the Federal Reserve found a third, far worse choice.  They left the cash on the table that could have gone to the homeowners.  The GAO was no stronger.  They do agree that the OCC and the Fed left billions on the table but they also give them a pass, saying that the settlement is in the “range” that would emerge from the regulators assumed rate of bad foreclosures.  The problem, as the facts disclosed in the GAO’s report make clear, but GAO’s analysis ignores, is that the regulators’ assumed rate of bad foreclosures had no reliable basis and was proven to be far too low an estimate by the fact that the loan files were so incomplete that the consultants could not complete the study.  So, there is no reliable basis for GAO’s claim that there is any “range” of reasonableness for the payments to homeowners.

Republished and updated from 5/2/2012

 May Day may be a day for workers to take to the streets and protest oppression but for Pagans and Wiccans around the world it is one of the eight sabbats of the Wheel. It is a  celebration of fertility and birth. It is Beltane, the old Gaelic name for the month of May, is the last of the three Wiccan spring fertility festivals, the others being Imbolc and Ostara. Beltane is the second principal Celtic festival (the other being Samhain). Celebrated approximately halfway between Vernal (spring) equinox and the midsummer (Summer Solstice). Beltane traditionally marked the arrival if summer in ancient times. It is one of eight solar Sabbats.

Beltane, like Samhain, is a time of “no time” when the veils between the two worlds are at their thinnest. No time is when the two worlds intermingle and unite and the magic abounds! It is the time when the Faeries return from their winter respite, carefree and full of faery mischief and faery delight. On the night before Beltane, in times past, folks would place rowan branches at their windows and doors for protection, many otherworldly occurrences could transpire during this time of “no time”. Traditionally on the Isle of Man, the youngest member of the family gathers primroses on the eve before Beltane and throws the flowers at the door of the home for protection. In Ireland it is believed that food left over from May Eve must not be eaten, but rather buried or left as an offering to the faery instead. Much like the tradition of leaving of whatever is not harvested from the fields on Samhain, food on the time of no time is treated with great care.

When the veils are so thin it is an extremely magical time, it is said that the Queen of the Faeries rides out on her white horse. Roving about on Beltane eve She will try to entice people away to the Faeryland. Legend has it that if you sit beneath a tree on Beltane night, you may see the Faery Queen or hear the sound of Her horse’s bells as She rides through the night. Legend says if you hide your face, She will pass you by but if you look at Her, She may choose you. There is a Scottish ballad of this called Thomas the Rhymer, in which Thomas chooses to go the Faeryland with the Queen and has not been seen since. [..]

On Beltane eve the Celts would build two large fires, Bel Fires, lit from the nine sacred woods. The Bel Fire is an invocation to Bel (Sun God) to bring His blessings and protection to the tribe. The herds were ritually driven between two needfires (fein cigin), built on a knoll. The herds were driven through to purify, bring luck and protect them as well as to insure their fertility before they were taken to summer grazing lands. An old Gaelic adage: “Eadar da theine Bhealltuinn” – “Between two Beltane fires”.

The Bel fire is a sacred fire with healing and purifying powers. The fires further celebrate the return of life, fruitfulness to the earth and the burning away of winter. The ashes of the Beltane fires were smudged on faces and scattered in the fields. Household fires would be extinguished and re-lit with fresh fire from the Bel Fires.

Celebration includes frolicking throughout the countryside, maypole dancing, leaping over fires to ensure fertility, circling the fire three times (sun-wise) for good luck in the coming year, athletic tournaments feasting, music, drinking, children collecting the May: gathering flowers. children gathering flowers, hobby horses, May birching and folks go a maying”. Flowers, flower wreaths and garlands are typical decorations for this holiday, as well as ribbons and streamers. Flowers are a crucial symbol of Beltane, they signal the victory of Summer over Winter and the blossoming of sensuality in all of nature and the bounty it will bring.

May birching or May boughing, began on Beltane Eve, it is said that young men fastened garland and boughs on the windows and doors of the young maidens upon which their sweet interest laid. Mountain ash leaves and Hawthorne branches meant indicated love whereas thorn meant disdain. This perhaps, is the forerunner of old May Day custom of hanging bouquets hooked on one’s doorknob?

Young men and women wandered into the woods before daybreak of May Day morning with garlands of flowers and/or branches of trees. They would arrive; most rumpled from joyous encounters, in many areas with the maypole for the Beltane celebrations. Pre-Christian society’s thoughts on human sexuality and fertility were not bound up in guilt and sin, but rather joyous in the less restraint expression of human passions. Life was not an exercise but rather a joyful dance, rich in all beauty it can afford.

So dance around the Maypole, light the fire, sing and bang the drums and don’t forget to wash you face in the morning dew.

Two Giant Banks, Seen as Immune, Become Targets

By BEN PROTESS and JESSICA SILVER-GREENBERG, The New York Times

April 29, 2014, 8:40 pm

Federal prosecutors are nearing criminal charges against some of the world’s biggest banks, according to lawyers briefed on the matter, a development that could produce the first guilty plea from a major bank in more than two decades.

In doing so, prosecutors are confronting the popular belief that Wall Street institutions have grown so important to the economy that they cannot be charged. A lack of criminal prosecutions of banks and their leaders fueled a public outcry over the perception that Wall Street giants are “too big to jail.”

…

The new strategy underpins the decision to seek guilty pleas in two of the most advanced investigations: one into Credit Suisse for offering tax shelters to Americans, and the other against France’s largest bank, BNP Paribas, over doing business with countries like Sudan that the United States has blacklisted. The approach applies to American banks, though those investigations are at an earlier stage.

First, I’ll believe it when I see it.

Second, where are Bank of America, Citigroup, Goldman Sachs, JP Morgan, or Wells Fargo?  Is this just a protectionist assault of foriegn owned institutions?

Why Only One Top Banker Went to Jail for the Financial Crisis

By JESSE EISINGER, The New York Times Magazine

APRIL 30, 2014

American financial history has generally unfolded as a series of booms followed by busts followed by crackdowns. After the crash of 1929, the Pecora Hearings seized upon public outrage, and the head of the New York Stock Exchange landed in prison. After the savings-and-loan scandals of the 1980s, 1,100 people were prosecuted, including top executives at many of the largest failed banks. In the ’90s and early aughts, when the bursting of the Nasdaq bubble revealed widespread corporate accounting scandals, top executives from WorldCom, Enron, Qwest and Tyco, among others, went to prison.

Continue reading the main story

The credit crisis of 2008 dwarfed those busts, and it was only to be expected that a similar round of crackdowns would ensue. In 2009, the Obama administration appointed Lanny Breuer to lead the Justice Department’s criminal division. Breuer quickly focused on professionalizing the operation, introducing the rigor of a prestigious firm like Covington & Burling, where he had spent much of his career. He recruited elite lawyers from corporate firms and the Breu Crew, as they would later be known, were repeatedly urged by Breuer to “take it to the next level.”

But the crackdown never happened. Over the past year, I’ve interviewed Wall Street traders, bank executives, defense lawyers and dozens of current and former prosecutors to understand why the largest man-made economic catastrophe since the Depression resulted in the jailing of a single investment banker – one who happened to be several rungs from the corporate suite at a second-tier financial institution. Many assume that the federal authorities simply lacked the guts to go after powerful Wall Street bankers, but that obscures a far more complicated dynamic. During the past decade, the Justice Department suffered a series of corporate prosecutorial fiascos, which led to critical changes in how it approached white-collar crime. The department began to focus on reaching settlements rather than seeking prison sentences, which over time unintentionally deprived its ranks of the experience needed to win trials against the most formidable law firms. By the time Serageldin committed his crime, Justice Department leadership, as well as prosecutors in integral United States attorney’s offices, were de-emphasizing complicated financial cases – even neglecting clues that suggested that Lehman executives knew more than they were letting on about their bank’s liquidity problem. In the mid-’90s, white-collar prosecutions represented an average of 17.6 percent of all federal cases. In the three years ending in 2012, the share was 9.4 percent.

Why Wall Streeters Don’t Go To Jail

Linette Lopez, Business Insider

4/30/2014

(H)ere are five things you need to know about what Eisinger found in his reporting.

1. There’s a pendulum swing thing going on here. The white-collar guys at the DOJ were inspired by their colleagues who took down the mob. That’s why when a man who had worked under Rudy Giuliani named Michael Chertoff became the criminal chief of the DOJ in 2001, the agency was ready for war.
2. When Chertoff went after Arthur Anderson hard for its role in disguising Enron’s fraud, there was a backlash. Corporate America, and even some prosecutors, thought Chertoff had overstepped his bounds.
3. Corporate attorneys started figuring out ways to protect their clients. They were trying to counter the ‘Thompson Memo’, a strategy written by then-Deputy Attorney General Larry Thompson. Basically he gave corporations carrots for rolling back the attorney client privileges that protected them. Because of the backlash, however, the memo has been all but rolled back, according to Eisinger.
4. In 2003 there was a turning point. The Fed stepped in while the DOJ was prosecuting PNC Financial Services, and asked for a meeting with Chertoff, where Chertoff told then-Fed official Herbert Biern that: “if the DOJ ‘can’t bring these cases because it may bring harm, then maybe these banks are too big.'” Sound familiar?
5. After that, they deferred and non-prosecution agreements started pouring out of the DOJ. There were 242 from 2004-2012. There had been 26 in the previous 12 years.

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

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Nathan Schneider: What’s left of May Day?

The eight-hour day that the Chicago strikers sought in 1886 is still out of reach for many Americans. Many of us are forced to work overtime or multiple jobs just to make ends meet. The economist Thomas Piketty has revealed how profoundly wealth inequality is widening and deepening; a recent study, meanwhile, documents the vastly outsize influence of a wealthy few on U.S. politics – which we see reflected in the absence of policies to confront crises from mass incarceration to climate change.

Replacing May Day with Labor Day was part of a decades-long effort to stifle the vibrancy of populist movements. And Labor Day is not enough. As inequality widens and our democracy weakens, we are losing the spirit of May Day, and suffering the consequences. Occupy’s May Day didn’t catch on as some hoped, but what it aspired to was right: an organized population powerful enough to confront an entrenched elite, and hopeful enough to celebrate democracy in the streets.

David Cole: How Many Have We Killed?

On Monday, The New York Times reported that “the Senate has quietly stripped a provision from an intelligence bill that would have required President Obama to make public each year the number of people killed or injured in targeted killing operations in Pakistan and other countries where the United States uses lethal force.” National security officials in the Obama administration objected strongly to having to notify the public of the results and scope of their dirty work, and the Senate acceded. So much for what President Obama has called “the most transparent administration in history.”

The Senate’s decision is particularly troubling in view of how reticent the administration itself continues to be about the drone program. To date, Obama has publicly admitted to the deaths of only four people in targeted killing operations. That came in May 2013, when, in conjunction with a speech at the National Defense University, and, in his words, “to facilitate transparency and debate on the issue,” President Obama acknowledged for the first time that the United States had killed four Americans in drone strikes. But according to credible accounts, Obama has overseen the killing of several thousand people in drone strikes since taking office. Why only admit to the four Americans’ deaths? Is the issue of targeted killings only appropriate for debate when we kill our own citizens? Don’t all human beings have a right to life?

Welcome to The Breakfast Club! We’re a disorganized group of rebel lefties who hang out and chat if and when we’re not too hungover  we’ve been bailed out we’re not too exhausted from last night’s (CENSORED) the caffeine kicks in. Join us every weekday morning at 9am (ET) and weekend morning at 10:30am (ET) to talk about current news and our boring lives and to make fun of LaEscapee! If we are ever running late, it’s PhilJD’s fault.  

(Truth be told, friends, we’re really not that disorganized; the fact that we’ve managed to put this series together and stick with it disabuses the notion that we’re disorganized, right?  Also, I wish I had a censored night once in awhile, but alas, this is something my producers made me say.)

This Day in History

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

Click on images to enlarge

May 1 is the 121st day of the year (122nd in leap years) in the Gregorian calendar. There are 244 days remaining until the end of the year.

On this day in 1786, Mozart’s Le nozze di Figaro premieres in Vienna

By 1786, Wolfgang Amadeus Mozart was probably the most experienced and accomplished 30-year-old musician the world has ever seen, with dozens of now-canonical symphonies, concertos, sonatas, chamber works and masses already behind him. He also had 18 operas to his name, but none of those that would become his most famous. Over the final five years of his life (he died in 1791), Mozart would compose four operas that are among the most important and popular in the standard repertoire. This remarkably productive period of creative, critical and popular success for Mozart began with Le nozze di Figaro (The Marriage of Figaro), which received its world premiere in Vienna, Austria, on May 1, 1786.

Two Giant Banks, Seen as Immune, Become Targets

By BEN PROTESS and JESSICA SILVER-GREENBERG, The New York Times

April 29, 2014, 8:40 pm

Federal prosecutors are nearing criminal charges against some of the world’s biggest banks, according to lawyers briefed on the matter, a development that could produce the first guilty plea from a major bank in more than two decades.

In doing so, prosecutors are confronting the popular belief that Wall Street institutions have grown so important to the economy that they cannot be charged. A lack of criminal prosecutions of banks and their leaders fueled a public outcry over the perception that Wall Street giants are “too big to jail.”

…

The new strategy underpins the decision to seek guilty pleas in two of the most advanced investigations: one into Credit Suisse for offering tax shelters to Americans, and the other against France’s largest bank, BNP Paribas, over doing business with countries like Sudan that the United States has blacklisted. The approach applies to American banks, though those investigations are at an earlier stage.

First, I’ll believe it when I see it.

Second, where are Bank of America, Citigroup, Goldman Sachs, JP Morgan, or Wells Fargo?  Is this just a protectionist assault of foriegn owned institutions?

Why Only One Top Banker Went to Jail for the Financial Crisis

By JESSE EISINGER, The New York Times Magazine

APRIL 30, 2014

American financial history has generally unfolded as a series of booms followed by busts followed by crackdowns. After the crash of 1929, the Pecora Hearings seized upon public outrage, and the head of the New York Stock Exchange landed in prison. After the savings-and-loan scandals of the 1980s, 1,100 people were prosecuted, including top executives at many of the largest failed banks. In the ’90s and early aughts, when the bursting of the Nasdaq bubble revealed widespread corporate accounting scandals, top executives from WorldCom, Enron, Qwest and Tyco, among others, went to prison.

Continue reading the main story

The credit crisis of 2008 dwarfed those busts, and it was only to be expected that a similar round of crackdowns would ensue. In 2009, the Obama administration appointed Lanny Breuer to lead the Justice Department’s criminal division. Breuer quickly focused on professionalizing the operation, introducing the rigor of a prestigious firm like Covington & Burling, where he had spent much of his career. He recruited elite lawyers from corporate firms and the Breu Crew, as they would later be known, were repeatedly urged by Breuer to “take it to the next level.”

But the crackdown never happened. Over the past year, I’ve interviewed Wall Street traders, bank executives, defense lawyers and dozens of current and former prosecutors to understand why the largest man-made economic catastrophe since the Depression resulted in the jailing of a single investment banker – one who happened to be several rungs from the corporate suite at a second-tier financial institution. Many assume that the federal authorities simply lacked the guts to go after powerful Wall Street bankers, but that obscures a far more complicated dynamic. During the past decade, the Justice Department suffered a series of corporate prosecutorial fiascos, which led to critical changes in how it approached white-collar crime. The department began to focus on reaching settlements rather than seeking prison sentences, which over time unintentionally deprived its ranks of the experience needed to win trials against the most formidable law firms. By the time Serageldin committed his crime, Justice Department leadership, as well as prosecutors in integral United States attorney’s offices, were de-emphasizing complicated financial cases – even neglecting clues that suggested that Lehman executives knew more than they were letting on about their bank’s liquidity problem. In the mid-’90s, white-collar prosecutions represented an average of 17.6 percent of all federal cases. In the three years ending in 2012, the share was 9.4 percent.

Why Wall Streeters Don’t Go To Jail

Linette Lopez, Business Insider

4/30/2014

(H)ere are five things you need to know about what Eisinger found in his reporting.

1. There’s a pendulum swing thing going on here. The white-collar guys at the DOJ were inspired by their colleagues who took down the mob. That’s why when a man who had worked under Rudy Giuliani named Michael Chertoff became the criminal chief of the DOJ in 2001, the agency was ready for war.
2. When Chertoff went after Arthur Anderson hard for its role in disguising Enron’s fraud, there was a backlash. Corporate America, and even some prosecutors, thought Chertoff had overstepped his bounds.
3. Corporate attorneys started figuring out ways to protect their clients. They were trying to counter the ‘Thompson Memo’, a strategy written by then-Deputy Attorney General Larry Thompson. Basically he gave corporations carrots for rolling back the attorney client privileges that protected them. Because of the backlash, however, the memo has been all but rolled back, according to Eisinger.
4. In 2003 there was a turning point. The Fed stepped in while the DOJ was prosecuting PNC Financial Services, and asked for a meeting with Chertoff, where Chertoff told then-Fed official Herbert Biern that: “if the DOJ ‘can’t bring these cases because it may bring harm, then maybe these banks are too big.'” Sound familiar?
5. After that, they deferred and non-prosecution agreements started pouring out of the DOJ. There were 242 from 2004-2012. There had been 26 in the previous 12 years.

Affordable Shooters Act

The Sanctity of Traditional Infidelity

Extended Interview below.