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Matt Taibbi’s Rolling Stone article posted today about Mary Jo White is devastating — APPENDED*

I hadn’t read Taibbi’s reporting about a jaw-dropping series of events in 2004-05 involving White until just now, when I read his article posted today on the Rolling Stone website, summarizing them.  Call me naive–which is what I’m calling myself–but the article really shocked me.   

I wonder who recommended White to Obama. White surely isn’t in his “in” crowd, and I’ll go out on a limb here and venture that Obama was unaware of the events Taibbi discusses. The idea, I believe, was to pick someone from outside the SEC and from outside Washington–someone with serious major law enforcement cred who also knows the ins and outs of securities law and securities practices–whose nomination would send a signal that enforcement of finance laws would be a priority in Obama’s second term.  

I’m certainly no expert in any of the possibly relevant criminal laws, but I do know that the major federal criminal conspiracy law has a 10-year statute of limitations.  The time period, I believe, would include any illegal obstruction of justice, which, if there was any, would have occurred, I guess, in 2004 and 2005.  

From Taibbi’s article, the extent of White’s involvement is unclear, but, assuming the accuracy of the facts the article states, she did play a role.  The most culpable of the players seem to me to be the people involved within the SEC; there is a whiff of subtle bribery involving jobs with the law firm, but it appears that the subject was broached by the SEC lawyers rather than by the firm.  But I don’t see how this won’t be a high-publicity issue during her confirmation hearing if the mainstream media picks it up. The Republican senators won’t question her about it, but at least one Dem probably will. At least I hope so. This is really different than just the usual revolving door situation. This concerns facts about a specific case, and it’s seriously damaging, in my opinion.  

*I want to append this post to add the following exchange this morning in the Comments thread, between reader Peter and me:

PETER:  Is this the same caring, compassionate, liberal, open-minded Matt Taibbi who wrote Andrew Breitbart: Death of a Deuche, threw coffee in the face of someone who had criticized one of his columns, and wrote 52 Funny Things about the Death of the Pope?
Beverly, lie down with dogs, you wake up with fleas. Can’t you find a decent human being to quote?

ME:  Peter, the only reason I wrote this post at all is that earlier yesterday, before I read Taibbi’s article but after I read David Sirota’s in Salon, I wrote one saying that I don’t buy into the criticism of White claiming that, because in recent years she has represented large financial institutions and executives of those institutions, including some involved in the events that crashed the economy and would have brought down the banking system had the federal government not intervened with TARP.  That post is [here].

I don’t read Rolling Stone regularly.  I’m on ReaderSupportedNews’s email listserve, and through them get headlines and links to some of what Taibbi writes, but I rarely click the link and read the article.  I’m not familiar with his comments about Breitbart after his death, or about the pope.  (Or about much of anything else about his writings.) What matters to me in the Taibbi article about White is the reporting on what happened in the John Mack case and what happened to Gary Aguirre.  It is Taiibi’s reports on the Aguirre matter, and the quotes from Aguirre, that caused me to write this post.  It is that alone that makes me very uncomfortable.  

But I’m glad my post said, “From Taibbi’s article, the extent of White’s involvement is unclear, but, assuming the accuracy of the facts the article states, she did play a role.” That is, I’m glad I made clear that the article doesn’t give enough information to know the extent of White’s involvement–the role she actually played.  And I’m glad I made clear that I’m assuming that the facts stated in the article, as far as they go, are accurate, but that I realize that that they may not be.

In my first post, I added a postscript saying that White would have to recuse herself from any matters concerning the past, in which she gained knowledge of specific facts–possible misconduct–through her representation of the bank or executive at issue. That’s a concern, too, I think.  I would much prefer a securities-law professor in that post.  
She may turn out to be a good choice.  She certainly knows how to use the investigative powers of the federal government to gain the information needed to be an effective SEC head.

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Do Businesses Borrow to Invest in Productive Assets? Does the Business-Interest Tax Deduction Encourage That?

J.W. Mason at The Slack Wire gives us a telling and trenchant analysis of that question:

Short answer: They used to, but not any more. The correlation in the U.S. between fixed-capital investment and a) debt levels and b) change in debt levels has been vanishingly small since the late eighties.

…in the 1960s and 70s, a firm that was borrowing heavily also tended to be investing a lot, and vice versa; but after 1985, that was much less true.

It’s gotten really bad lately:

Regressing nonfinancial corporate borrowing on stock buybacks for the period 2005-2010 yields a coefficient not significantly different from 1.0, with an r-squared of 0.98.

As CEOs and their cronies have moved from being business-runners to financial arbitrageurs,*

the marginal dollar borrowed by a nonfinancial business in this period was simply handed on to shareholders, without funding any productive expenditure at all.

This goes far in explaining an amazing fact about Dell, recently revealed by Floyd Norris:

It has spent more money on share repurchases than it earned throughout its life as a public company.

This is not an anomaly. Floyd pointed out to us some time ago that:

From the fourth quarter of 2004 through the third quarter of 2008, the companies in the S.& P. 500 — generally the largest companies in the country — reported net earnings of $2.4 trillion. They paid $900 billion in dividends, but they also repurchased $1.7 trillion in shares.

As a group, shareholders were paid about $200 billion more than their companies earned.

Floyd’s post is aptly titled “Easy Loans Financed Dividends” (and buybacks).

I would take issue with one seemingly judicious caveat in JW’s piece:

It is quite possible that for small businesses, disruptions in credit supply did have significant effects.

Based on one piece of evidence that I’ve cited repeatedly, not so. Here from December 2009 (follow “Related Links” for more discussion and evidence):

Small businesses consistently put financing and interest rates at the very bottom or near-bottom of their lists of business constraints. That has been true for many years [almost three decades now…], it was true throughout the recent crisis, and it remains true at this very moment.

It really makes a fellow wonder: given all the (sensible) talk about ending the mortgage interest deduction for homeowners, why we aren’t hearing a similar quantity of talk about ending all interest deductions — especially the money-funnel sweetheart deal for the rich that is the business-interest deduction?

Anyone thinking we’ve become a Great Stagnation, or wondering why?

* JW describes that shift from businessperson to financial prestidigitator more fully (emphasis mine):

In the era of the Chandler-Galbraith corporation, payouts to shareholders were a quasi-fixed cost, not so different from bond payments. The effective residual claimants of corporate earnings were managers who, sociologically, were identified with the firm and pursued survival and growth objectives rather than profit maximization. Under these conditions, internal funds were lower cost than external funds, as Minsky, writing in this epoch, emphasized. So firms only turned to external finance once lower-cost internal funds were exhausted, meaning that in general, only those firms with exceptionally high investment demand borrowed heavily; this explains the strong correlation between borrowing and investment.

But since the shareholder revolution of the 1980s, this no longer really holds; shareholders have been much more effective in making their status as residual claimants effective, meaning that the opportunity cost of investing out of internal funds is no longer much lower than investing out of external funds. It’s no longer much easier for managers to convince shareholders to let the firm keep more of its earnings, than to convince bankers to let it have a loan.

Cross-posted at Asymptosis.

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Postscript Regarding Geithner

I’ve spent yesterday and this morning saying here that I suspect that Geithner played some role in persuading Obama himself to decide that the Justice Dept. should not do much to investigate whether there was criminal conduct by top execs at the big banks, the big investment banks, and the big mortgage companies–but also saying, this morning, that if so, I think it was because of a legitimate belief that pursuing past criminality as criminality rather than through civil cases alone, would undermine those institutions’ solvency and thus the larger economy.  

It’s a believe that, at least regarding such big-name mortgage firms like Countrywide and its CEO, and in my opinion, against big-name execs of the banking institutions, makes no sense. Which does suggest some direct culpability by the Justice Dept., although it doesn’t answer the question of Geithner’s role, if any.

But a lengthy article about Geithner in today’s Washington Post by Zachary Goldfarb does make the point that Geithner apparently has been a strong proponent of tough new laws and regulations regarding the finance and securities industries, and, presumably, tough enforcement of the laws and regulations, old and new, going forward.  At least that’s what the article says.  

Which makes the separate, if inferential, point, that, regarding the Obama administration and (I suspect) regarding Geithner, there are two distinct issues: what was to be done about the past, and what is to be done in, and about, the future.

I’m shooting for this to be my final word on all this. So that I won’t keep shooting myself (and my reputation as a stellar financial-industry expert) in the foot.

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Lanny Breuer and Mary Jo White. Or Is It, Lanny Breuer versus Mary Jo White? Or is it neither?*

BREUER: “If you look at what we and the U.S. attorney community did, I think you have to take a step back. Over the last couple of years, we have convicted Raj Rajaratnam, one of the largest hedge fund leaders. Now, you’ll say that’s an insider trading case, but it’s clearly going after Wall Street.”*

Oh, we get it.  It’s a semantics game.  Anyone connected with the finance industry will do as a prosecution target, as long as he wasn’t a top executive at a mega bank, a mega investment bank, or a mega mortgage company.  He works on Wall Street!  We went after Wall Street!

What’s next? A claim that they prosecuted the head of the asphalt company that repaved Wall Street, for tax evasion or something?

BREUER: “First of all, I think that the financial crisis is multifaceted. But even within that, all we can do is look hard at this multifaceted, multipronged problem. And what we’ve had is a multipronged, multifaceted response.”*

Actually, there seems to be a major facet missing in their approach.  Which was the point of the expose.

All that said, I just think there’s something more that was going on there than just Lanny Breuer’s and Eric Holder’s desire to return to Covington & Burling after their Justice Dept. stints.  For one thing, most top white collar crime defense attorneys began their careers as federal prosecutors and made their names in high-profile cases.  They know how to defend in white collar criminal cases, precisely because they successfully prosecuted some complicated ones.  So prosecuting big-name Wall Street execs would not have hampered their option to return to big-law criminal defense work.  

For this reason, I think the criticism of Obama’s selection of Mary Jo White as SEC head is off-base; she was known as an extremely aggressive head of the Manhattan U.S. Attorney’s Office, and do think Obama’s decision to nominate her is intended to indicate a toughness toward the finance industry.  Yes, she’s been representing finance industry companies and execs in criminal-law matters, but because of that, she now knows all the more how the inside game is played.  And the better she is at the SEC job, the more desirable, not the less desirable, she’ll be to the big Wall Street law firms.  It’s counterintuitive, and of course exactly the opposite of people who work in regulatory agencies such as the EPA leaving to become lobbyists.  But what matters in this situation, less, ideology than actual knowledge

This is not to minimize the potential and maybe real conflicts of interest that result from the passage back through the revolving door to high-level law enforcement and regulatory positions after time spent on the other side of that door.  But I think that’s because of friendships–personal relations–rather than a surely-unrealistic fear of having trouble returning to Big Law, for really big bucks, when the time comes to pass back through the revolving door once again. 
Ultimately, I just don’t think Holder and Breuer were the ones deciding to not even investigate the big boys.  I think that was more likely a policy decision made elsewhere in the administration.  I don’t think Geithner picked up the phone and called Holder or Breuer. Nor, if he did play a role in these decisions, do I think he even thought he was doing anything other than protecting the economy. Same for Obama, if my hunch is right that Geithner had some influence on these decisions, via Obama.
But I guess there’s no way for us to know the inside story. At this point, anyway. And I do agree with the New York Times today in an article by Ben Protess and Benjamin Weiser that Obama seems to be trying to signal a new day.

* From The New York Times would rather cover a Breuer chair than cover Lanny Breuer, by lambert, at Corrente. H/T, reader rjs.

*POSTSCRIPT:  The New York Times article notes specifically that White “defended some of Wall Street’s biggest names, including Kenneth D. Lewis, a former chief of Bank of America,” and that “[a]s the head of litigation at Debevoise & Plimpton, she also represented JPMorgan Chase and the board of Morgan Stanley.”  So she’ll have to recuse herself from matters that touch upon issues related to the cases she worked on for those execs and banks or that rely in any respect on information she gained through those representations.

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Brad DeLong and Theories of the moocher class

Brad DeLong notices the vagaries of the theories of the mooschers class:

Now politicians like Paul Ryan who used to say things like:

Right now about 60 percent of the American people get more benefits in dollar value from the federal government than they pay back in taxes. So we’re going to a majority of takers versus makers…

are saying, instead:

No one is suggesting that what we call our earned entitlements–entitlements you pay for, like payroll taxes for Medicare and Social Security–are putting you in a ‘taker’ category. No one would suggest that whatsoever.”

How long will it be before the likes of Veronique de Rugy stop denouncing Social Security, Medicare, Unemployment Insurance, etc. as programs that have turned us into “a nation of takers”, and stop denouncing these programs beneficiaries as “moochers”?

It is in some ways very odd. It used to be that critics of the welfare state pointed to high net marginal tax rates and argued that they had high deadweight losses. Sometimes they had a point. Then, after bipartisan reforms, we got to a point where there were few high net marginal tax rates large enough to induce large deadweight losses.

And then, in the blink of an eye, the problem became not public-finance deadweight losses but, rather, the moocher class, the nation of takers, etc.

(Dan here…the Veronique de Rugy quote is over at Brad DeLong’s site)

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Much of MNEs’ "offshore" (and hence untaxed) cash hoards held onshore

by Linda Beale

Much of MNEs’ “offshore” (and hence untaxed) cash hoards held onshore

The Wall Street Journal, in its editorial pages a great friend to big business and low taxes for same, had a decent front-page article  on the corporate hoard of cash designated as “permanently invested offshore”.  In fact, much of that cash is sitting in U.S.-dollar-denominated assets in the good ole USA.  Nonetheless companies are permitted under the tax rules to claim that those profits are earned overseas and kept there.  See  Kate Limbaugh, Firms keep stockpiles of cash in U.S., Wall St. J. (Jan 22, 2013).

Some companies, including Internet giant Google Inc., GOOG +5.74%software maker Microsoft Corp. MSFT +1.36%and data-storage specialist EMC Corp.,EMC +1.03%keep more than three-quarters of the cash owned by their foreign subsidiaries at U.S. banks, held in U.S. dollars or parked in U.S. government and corporate securities, according to people familiar with the companies’ cash positions.

In the eyes of the law, the Internal Revenue Service and company executives, however, this money is overseas. As long as it doesn’t flow back to the U.S. parent company, the U.S. doesn’t tax it. And as long as it sits in U.S. bank accounts or in U.S. Treasurys, it is safer than if it were plowed into potentially risky foreign investments.


Of course, the designation can be changed in an instant if the company is prepared to accept the tax bite.  United Technologies Corp., for instance, used $4 billion of such “permanently” reinvested funds held by foreign subsidiaries to help pay for last year’s acquisition of Goodrich Corp. Id.
That last quoted paragraph is a giveaway.  Thse foreign subsidiaires are controlled by the US MNE and have no real say in the ultimate use of the cash.  When the MNE wants it for something, it can get it in an instant.  As my colleague Calvin Johnson at University of Texas has noted, this “reinvorces the idea that a foreign sub is just a ledger entry, with no significance”  (email statement quoted with permission).

Meantime, these US-based MNEs are busy lobbying Congress to give them even more tax breaks.   They want a so-called territorial system or the ability to bring home their hoarded cash at low (or effectively negative) tax rates.   MNEs are married to the idea of pushing for paying nothing for the many ways the US economy has boosted their profits through tax expenditures and nothing for the many other ways in which the US system has increased their profits–both at home and abroad.

Remember that their owners already get an extraordinarily preferential rate of tax on dividends paid out to them (treated as net capital gains, recently made permanent in one of the sillier giveaways of the “deal” between Dems and Republicans on whether or not to let the Bush tax cuts expire as the Republicans originally wrote the bill) and on capital gains when they sell the shares.  The very low effective corporate tax rate–not infrequently a negative rate because of the way the rules and time value of money works–means that wealthy shareholders are still getting very much a free ride to accumulated wealth through the US tax system.  It’s time that stopped.

The Journal article’s suggestion–that the Congress needs to “set[] the [corporate income tax] rate low enough that companies opt to pay the tax rather than continue to pile up an estimated $300 billion a year beyond Uncle Sam’s reach.”  Id.  That suggestion must be tongue in cheek–no matter how much the rate is lowered on the wealthy corporations making incredibly high profits, they still insist that they don’t want to pay any tax.  They will not be happy unless the rate is zero or negative.  That is the reason that Oracle “derives about half of its revenue from the US but keeps more than three-quarters of its cash and short-term investments–or $26 billion-in the hands of its foreign subsidiaries” and has established a bunch of new foreign subsidiaries in tax havens for holding these profits.  Id.

From my perspective, Congress should not lower the rate.  It should instead stop many of the loopholes that permit companies to claim to “sell” essential IT property to offshore affiliates in order to then claim profits offshore.  And it ought to deal with similar gambits to lower US taxes, such as disallowing completely any interest deductions for debt to the extent that the company holds “offshore” funds of its controlled foreign subsidiaires in US-dollar-denominated assets in the United States –i.e., no interest deduction for debt of the US MNE consolidated group that is matched by a US-dollar denominated, US asset held by a controlled foreign subsidiary.

Professor Johnson recommends a “global consolidated return” for multinationals, with international negotiations to determine each country’s taxing jurisdiction on that whole.
These and similar ideas should be considered by a Congress truly intent on reasonable reform, economic justice, and distributional justice.


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AIG bailout not a free lunch

James Tilson and Robert E. Prasch follow the money at New Economic Perspectives regarding the AIG bailout and a more accurate sense of costs.

“If it’s too good to be true, it probably is.” This old adage came to mind on December 11, 2012 when the U.S. Treasury made the announcement, reiterated unthinkingly by the press, that the AIG bailout was coming to an end with American taxpayers making a tidy profit on the deal. In an effort to capitalize on the news, AIG has spent millions of dollars on a primetime ad campaign thanking America for the bailout, highlighting its success: “We’ve repaid every dollar America lent us. Everything, plus a profit of more than 22 billion.” Unfortunately, this cleverly designed public relations maneuver deceives the taxpayer by distorting the perception of what has been a contentious use of government funds.

Among the shares the Treasury sold were 562,868,096 gifted to them from the Credit Facility Trust. This trust had previously been established by thehtFederal Reserve Bank of New York for the sole benefit of the Treasury Department. When these shares are taken into account, only 65.99% of the total returns from the Treasury’s sale of AIG common stock can be attributed to its original TARP investment, and the remainder should be credited to the FRBNY. The Treasury’s calculation, however, does not adjust for this transfer of shares. The effect is to artificially boost the returns on its politically contentious TARP investment at the expense of the Federal Reserve. Not counting these gifted shares, the Treasury assumes a break-even price of $28.73, but if we examine its investment in isolation, the true break-even is $45.53. After adjusting all cash flows associated with sale of stock, the Treasury’s profit of $5 billion becomes a loss of $12.7 billion.

An accurate evaluation of the Treasury’s investment in AIG should incorporate the effects of this tax advantage. So, rather than an average sale price of $31.18, a more telling number would be the share price controlling for this preferential tax treatment. According to estimates by analysts at Bank of America and JPMorgan Chase, doing so would reduce AIG’s share price by $5 to $6 dollars a share. ( ) If we were to adjust the sale price by $6 per share, the Treasury’s return is reduced from nearly $5 billion to a loss of more than $5 billion. Compounding this adjustment with that from the shares gifted by the Federal Reserve described above, the Treasury’s return is further reduced to become more than a $19 billion loss.

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Are Lanny Breuer and Eric Holder taking the hit for … Tim Geithner? UPDATED

After reading Ken Houghton’s post immediately below, and then clicking on the Twitter exchange that Ken, Dan and Yves referenced, in which the Frontline reporter, Martin Smith, said he’d received a call from the Justice Department saying that the reporter had come with an agenda and that the Obama Justice Department would not again cooperate with Frontline, I’m wondering whether Lanny Breuer and Eric Holder are taking the hit for … Tim Geithner.

The more I think about it, the more I think that that’s the most likely scenario.  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!”

If this is what happened, then whoever at the Justice Dept. who called Smith might actually be hinting that Smith should probe further–say, into the Treasury Dept.–to find the full background.  

I mean, how in heaven’s name were those lawyers for the banks and the bankers getting that kind of access to the Justice Dept.’s Criminal Division?  How likely is it, really, that this was simply that that asked Breuer or Holder?  Or that they even contacted either of them directly?  Just a hunch here, obviously, but my guess is: not much.  

So maybe Breuer’s the good guy, after all.  Maybe he was fighting behind the scenes against acceptance of what was being sold at those presentations.  Which would explain the anger of the Justice Dept. person who called Smith.   


UPDATE:  In response to reader rjs’s comments in the Comments threat, I responded:

The reason that I thought, in reading some of this stuff, that Geithner might have played a role in it is that Geithner is the one who always seemed to have the executives’ backs. Covington & Burling can argue all it wants that huge damage to the economy, and to innocent employees, would result from indictment of the banks themselves, but the banks would not go under if specific individuals were indicted. Covington & Burling represents the banks, not the executives as individuals. So why weren’t any individuals–any executives–indicted?

Breuer says there was no evidence of intent to defraud, but that seems unlikely, unless the DoJ didn’t look for any.

The bottom line is that Breuer and Holder certainly look culpable, and that you’re right, rjs, that Breuer probably was not arguing quietly for indictments against executives. But is that all there is to it?

At least this finally exposes the sickening, sickening symbiotic relationship between the top officials in the DoJ and big-name Washington white collar criminal defense law. And it’s not a good thing for Obama to have renominated Holder as AG.

So the answer to the question in the title of this post–”Are Lanny Breuer and Eric Holder taking the hit for Tim Geithner?”–seems to be, no.

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Updates and Notes

Just a quick one:

  1. I was wrong; Greg Sargent and Stan Collender were correct. And, yes, I could not be happier about this, though I still expect that any real evidence of Moderate Republican Senators will show up about the same time as a flock of Ugly Chickens (link not guaranteed to work; reference discussed here).

  2. Jared Bernstein, of whom I am occasionally brutally honest less than deferential, reveals a hithero unknown skill at comedy in this must-read post:

    Most coefficients in the table have the “wrong sign” or are insignificant, except the bold one, suggesting, counter to anti-union theory, states where union density grew most had the best employment growth.

  3. Current Canadian and future BoE leader Mark Carney manages to present both of these as part of his latest Monetary Policy Report:
    • Caution about high debt levels has begun to restrain [Canadian] household spending.
    • The three main downside risks to inflation in Canada relate to [lists two]…and the possibility that growth in Canadian household spending could be weaker
  4. And, with all due respects—and there are many—to Beverly’s multiple posts on President Obama’s “Seneca Falls, Selma, and Stonewall” speech, I’ll continue to disbelieve the Administration’s claims to believing in creating opportunities by its actions. As Dan Crawford noted here yesterday:

    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.

    That’s the Biden/Geithner/Summers Administration I’ve watched these past four years, and anyone believing it is dedicated to justice or creating opportunity is fooling themselves. (I would, of course, love to be wrong here, too. But it’s not the way to bet.) If that was “throwing down the gauntlet,” it’s now being used—as is all too usual—to slap the people who tell the truth, not those who break the law.

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… But Also Don’t Miss Glenn Greenwald’s Piece Today on Obama’s First-Term Appalling Justice Dept. – UPDATED

The disgusting Lanny Breuer–a Clinton-era big-wig–is heavily featured in Glenn Greenwald’s article.  But of course the weak, ineffectual Eric Holder, and Obama himself, are even greater culprits on this.  

A key reason why Obama’s first term was such a disappointment was that, in the worst ways, it was Bill Clinton’s third term.  Obama basically just reissued Clinton Administration folks, who failed to notice, as did Obama himself, that it was no longer the 1990s and that a whole lot of water had passed under the bridge since then.

Obama badly needs to revamp his Justice Department.  He really does. It’s past time now that he make the Department of Justice a department of justice. The operative word there, of course, being justice.  

Better late than never, please


UPDATE: Wow! I just saw the post below mentioning Yves Smith’s h/t that Lanny Breuer just resigned, unexpectedly–obviously the result of the Frontline exposé aired on Tuesday, which is the main subject of Greenwald’s piece.  

But, good grace.  Why did it take a Frontline exposé, in 2013, to prompt his (presumably) forced resignation?

The good news?  Well, maybe this is really bad news for some key Wall Street folks.  The statute of limitations on a relevant federal criminal statute, (acronym, “RICO”), is 10 years.  

Here’s hoping.

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