The big news item in Washington last week was Attorney General Eric Holder decision to resign. Undoubtedly there are positives to Holder’s tenure as attorney general, but one really big minus is his decision not to prosecute any of the Wall Street crew whose actions helped to prop up the housing bubble. As a result of this failure, the main culprits walked away incredibly wealthy even as most of the country has yet to recover from the damage they caused.
Just to be clear, it is not against the law to be foolish and undoubtedly many of the Wall Streeters were foolish. They likely believed that house prices would just keep rising forever. But the fact that they were foolish doesn’t mean that they didn’t also break the law. It’s likely that most of the Enron felons believed in Enron’s business model. After all, they held millions of dollars of Enron stock. But they still did break the law to make the company appear profitable when it wasn’t.
In the case of the banks, there are specific actions that were committed that violated the law. Mortgage issuers like Countrywide and Ameriquest knowingly issued mortgages based on false information. They then sold these mortgages to investment banks like Citigroup and Goldman Sachs who packaged them into mortgage backed securities. These banks knew that many of the mortgages being put into the pools for these securities did not meet their standards, but passed them along anyhow. And, the bond-rating agencies rated these securities as investment grade, giving many the highest possible ratings, even though they knew their quality did not warrant such ratings.
All three of these actions - knowingly issuing mortgages based on false information, deliberately packaging fraudulent mortgages into mortgage backed securities, and deliberately inflating the ratings for mortgage backed securities - are serious crimes that potentially involve lengthy prison sentences. Holder opted not to pursue criminal cases against the individuals involved.
In the last couple of years Holder did bring civil cases against these banks that led to multibillion settlements. These settlements won big headlines that gave the appearance of being tough on the banks.
If we look at the issue more closely the rationale for these settlements gets pretty shaky. When Bank of America or J.P. Morgan has to pay out several billion dollars in penalties in 2013 or 2014, the people being hit most immediately are current shareholders and to a lesser extent top management. Since stock turns over frequently, the overlap between the group of people who hold these banks’ stock today and the people who benefited from the profits racked up in the bubble years will be limited. This means for the most part the fines are hitting people who did not profit from the wrong doing.
The same story holds for the top executives. Insofar as these are different people from those in charge in the bubble years (this is mostly the case), they can rightly tell their boards that they should not be held responsible for the wrongdoing of their predecessors. As a result, boards are likely to compensate top management if they fail to hit bonus targets due to the fines. This just means more of a hit to current shareholders. So the people who profited from criminal acts get to keep their money, while Holder can boast about nailing people who had nothing to do with the crime.
Had Holder treated this as a normal criminal matter he would have looked to build cases from the bottom up. This means finding specific examples of mortgage agents issuing obviously fraudulent mortgages, cases where these mortgages got bundled into securities at investment banks, and then marked as investment grade by the rating agencies.
The people involved would then be pressed to say whether they are either buffoons or crooks. Most probably would not pass as the former. The next question is why they decided to break the law. When you get people to admit that they were acting on instructions from their bosses, you then ask the bosses whether they want to spend many years in jail or would prefer to explain why they thought it was a good idea to commit fraud. (This is the pattern the Justice Department is pursuing in going after illegal campaign contributions to Washington Mayor Vincent Gray.)
We can never know this pattern of prosecution would have nailed big fish like Goldman’s Lloyd Blankfein or Citigroup’s Robert Rubin. We do know that Holder never even tried. As a result the Wall Streeters who profited most from illegal acts in the bubble years got to keep their haul. This is the message that bankers will take away going forward. This virtually guarantees ongoing corruption in finance.