Are banks too big to jail?
Update: Dealbook at the NYT interviews the producers of ‘The Untouchables’.
Yves Smith at Naked Capitalism comments begin:
Lanny Breuer, former Covington & Burling partner and more recently head of the criminal division at the Department of Justice, resigned abruptly today. The proximate cause may be a Frontline show that ran two nights ago, part of a series on the financial crisis…
But sadly, Breuer’s resignation is unlikely to be a bellwether that lying does not pay. He simply didn’t lie well enough and that made him an embarrassment.
David Sirota at Salon discusses the significance of:
PBS Frontline’s stunning report last night on why the Obama administration has refused to prosecute any Wall Streeter involved in the financial meltdown doesn’t just implicitly indict a political and financial press that utterly abdicated its responsibility to cover such questions. It also — and as importantly — exposes the genuinely radical jurisprudential ideology that Wall Street campaign contributors have baked into America’s “justice” system. Indeed, after watching the piece, you will understand that the word “justice” belongs in quotes thanks to an Obama administration that has made a mockery of the name of a once hallowed executive department.
The Frontline report is titled “The Untouchables,”…
As this excerpt from Breuer’s 2012 speech to the New York City Bar Association shows, that characterization of Breuer’s declarations is not an overstatement (emphasis added):
To be clear, the decision of whether to indict a corporation, defer prosecution, or decline altogether is not one that I, or anyone in the Criminal Division, take lightly. We are frequently on the receiving end of presentations from defense counsel, CEOs, and economists who argue that the collateral consequences of an indictment would be devastating for their client. In my conference room, over the years, I have heard sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effects.…
In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders, just as we must take into account the nature of the crimes committed and the pervasiveness of the misconduct.
I personally feel that it’s my duty to consider whether individual employees with no responsibility for, or knowledge of, misconduct committed by others in the same company are going to lose their livelihood if we indict the corporation. In large multi-national companies, the jobs of tens of thousands of employees can be at stake. And, in some cases, the health of an industry or the markets are a real factor. Those are the kinds of considerations in white collar crime cases that literally keep me up at night, and which must play a role in responsible enforcement.
Save for the intrepid Marcy Wheeler and now Frontline, this speech received almost no news media attention despite being arguably one of the most important statements to come from a top law enforcement official in recent history.
The highlighted parts of that speech are what is so significant. In them, Breuer is saying that enforcing the law should not be — and no longer is, in the Department of Justice — prosecutors’ chief priority. Rather, he says listening to Wall Street’s economic arguments about the alleged cost of stopping and/or punishing lawbreaking should be.
… After all, it was Breuer who sculpted the Obama administration’s settlement with megabank HSBC after the bank admitted laundering money for drug cartels and terrorist organizations.
In that decision not to criminally prosecute any HSBC executive who had enabled such laundering, Breuer explicitly cited the same radical Too Big to Jail principle aired in the PBS Frontline report. He said: “Our goal here is not to bring HSBC down, it’s not to cause a systemic effect on the economy, it’s not for people to lose thousands of jobs.”
For pure adversarial and investigative journalism horsepower, the PBS Frontline piece rivals Bill Moyers’ epic PBS indictment of those charlatans who enabled the Bush administration’s march into the Iraq War. It is a must-watch in the truest sense of the overused term because it so powerfully explains how Obama’s campaign motto of “change” meant something entirely different than what many thought. In the case of financial crime, it meant the embrace of a radical Too Big to Jail ideology, one that creates a moral hazard, encourages exactly the same kind of crimes and therefore makes it more likely that another financial meltdown will happen.
UPDATE: A mere hours after the PBS Frontline piece aired, Lanny Breuer just announced he is resigning his post at the Justice Department. Meanwhile, PBS reporter Martin Smith just reported that in response to his report, the Obama White House has decided to block access to Frontline reporters in their future reporting.
Glenn Greenwald on the same:
How the Obama administration protected Wall Street from prosecutions
Lanny Breuer seems to be taking the hit to cover Eric Holder..
You know, here’s what I’m wondering now: Are Lanny Breuer and Eric Holder taking the hit for … Tim Geithner? The more I think about it, the more I think that that’s the most likely scenerio. It almost seems like Geithner had Obama hypnotized–that he always managed to scare Obama just about to death with “But the banks will COLLAPSE!”
no doubt that geithner has always had his banker buddies best interest at heart, beverly, even to the extent of feeding them inside information they could profit off of…but it’s never been geithner’s responsibility to prosecute the banksters for criminal wrongdoing…i cant count the number of times ive seen articles citing a case where covington & burling (holder’s law firm) had taken the side of the banks accused of wrongdoing, and though i cant put my finger on it now, more than once i’ve seen that the connection to holder & breuer is is often mentioned in C&Bs promos to clients…
btw, credit to you for the first AB cite of greenwald’s piece; you posted 4 minutes before my comment…
There are many issues with Breuer’s thinking (excuse) including that found in my reading of “Why Nations Fail”, but more directly is the a priori that taking out the criminal elements of a corporation would harm the corp. This can only be true if the board of directors did not act responsibly upon DOJ action or if they too are taken out criminally, the US government did not take control and put in management to then restructure the corp bank.
Strange, but I would think that the most significant parts of Breuer’s speech are thi unbolded statement. “To be clear, the decision of whether to indict a corporation, defer prosecution, or decline altogether is not one that I, or anyone in the Criminal Division, take lightly” Especially when followed up with this, “or knowledge of, misconduct committed by others in the same company are going to lose their livelihood if we indict the corporation.”
Note that in each comment Breuer is focused on whether to prosecute a corporation rather than the individuals within such businesses who are the actual perpetrators of what ever criminal activities may have been taking place. You can’t put a filing receipt in jail. In spite of what some ideologues on the Supreme Court may think a corporation doesn’t breath and walk amongst its friends. People commit criminal acts and the prosecution of such imdividual criminal behavior doesn’t sink the ship. Those still aboard simply hire replacements.
another take on Breuer’s motivation, written before he resigned:
Breuer is too afraid of facing his law partners when his stint is up at DOJ and he returns to his high paying job at the law firm of Covington & Burling — which represents Wall Street’s denizens of casino capital.
Eric Holder, the U.S. Attorney General, Lanny Breuer, the Assistant Attorney General for the Criminal Division, and Dan Suleiman, deputy chief of staff and counselor to Lanny Breuer, all hail from the corporate law firm, Covington & Burling. Their former partner at the firm, John Dugan, a former bank lobbyist, headed the Office of the Comptroller of the Currency (OCC), which regulates all national banks, from August 4, 2005 through August 14, 2010 – the years leading up to and including the financial crisis.
When Dugan stepped down from the OCC in 2010, he returned to Covington & Burling’s Washington, D.C. office and now chairs the firm’s Financial Institutions Group, providing legal counsel to many of the same banks he supervised for five years. It is reasonable to assume that Holder, Breuer and Suleiman may return to their high-pay partner positions at Covington & Burling when they leave the Justice Department.