Late Thursday evening, the US Senate passed a bill by a 50–48 party-line vote extending the government debt ceiling into early December. While all voting Republicans opposed the debt extension, passage of the legislation was virtually assured when 11 Republican senators joined all 50 Democrats to supply the necessary super-majority needed to end a filibuster.
Senate Minority Leader Mitch McConnell set the stage for the compromise bill on Wednesday when he bowed to immense pressure from Wall Street and offered to avert a looming government default by allowing passage of a $480 billion extension of the debt limit. This was a retreat from his previous insistence that any extension would have to be passed by Democratic votes alone under the complicated and potentially lengthy budget reconciliation process, which averts a filibuster and permits passage of certain measures in the Senate by a simple majority.
Treasury Secretary and former Fed chair Janet Yellen, who had been warning of a collapse of the financial markets and damage to the dollar, estimated that the $480 billion increase in the debt ceiling would allow the government to meet its obligations until December 3. That is the same day that a temporary extension of funding for federal government operations is set to expire, posing the possibility of a simultaneous debt default and partial government shut-down.
Senate Majority Leader Chuck Schumer of New York, known as the “senator from Wall Street,” announced his acceptance of McConnell’s offer on Thursday morning. The plan of McConnell and his leadership team in the Senate was to forego a filibuster and simply allow the Democrats to pass the measure, using their 50 votes in the 100-member chamber plus the tie-breaking vote of Vice President Kamala Harris.
However, during a closed-door meeting of the Republican caucus prior to the Thursday night floor vote, far-right Trump acolytes Rand Paul and Ted Cruz rejected that approach and insisted on mounting a filibuster, requiring McConnell and his allies to come up with at least 10 Republican votes to break the filibuster.
Republicans who voted to end the filibuster and allow the Democrats to pass the short-term debt extension included McConnell (Kentucky), John Thune (South Dakota), John Cornyn (Texas), Roy Blunt (Missouri), Mike Rounds (South Dakota), Lisa Murkowski (Alaska), John Barrasso (Wyoming), Susan Collins (Maine), Richard Shelby (Alabama), John Portman (Ohio) and Shelley Moore Capito (West Virginia).
Following the Senate vote, Democratic House Majority Leader Steny Hoyer announced that the House would be recalled from its recess on Tuesday to vote on the bill and send it to President Biden for his signature on Tuesday, just days ahead of the October 18 date when, according to Yellen, the US would no longer be able to pay its debts.
While the debt limit extension provides only a short reprieve, the process by which it is being enacted is an object lesson on who rules America. When it comes to the basic financial interests of the corporate-financial oligarchy, and Wall Street cracks the whip, partisan gridlock in Congress suddenly dissipates.
McConnell’s shift coincided with a White House event Wednesday morning in which Biden met with the CEOs of Citigroup, JPMorgan Chase and Nasdaq to denounce the Senate Republicans’ blockade of a debt extension. Biden warned that the approaching debt limit deadline risked a default that would act like a “meteor” in crushing the US economy and undermining the position of the US internationally.
He berated his Senate Republican “friends” for actions that “risk the market tanking.”
The White House did not shoot down reports that Democrats were considering carving out an exception for bills to raise the debt ceiling from the Senate filibuster rule, allowing all such measures to pass by a simple majority. When it comes to amending or scrapping the anti-democratic filibuster rule to pass legislation defending voting rights and abortion rights, or to enact measures to address the catastrophic social crisis and raise taxes on the rich, Biden and the Democratic Party resist any change. But it is a different story when it comes to protecting the markets and the wealth of the ruling elite.
McConnell reportedly told his Republican caucus on Wednesday that increasing pressure among Democrats to weaken the filibuster was a major factor in his decision to propose a stop-gap extension of the debt ceiling. Prior to his announcement on Wednesday, he met with the two most prominent right-wing Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who have staunchly opposed any change in the filibuster rule. They presumably advised him that they might have to change their position on the filibuster in relation to the debt limit unless the logjam was broken.
The Senate deal was all the more politically significant given the ferocious intervention of Donald Trump against the agreement and its author, McConnell. The Senate minority leader has gone out of his way to appease the fascist ex-president, and the Republican Party as a whole has promoted his lie of a stolen election and worked to block any investigation of the January 6 coup attempt.
“Looks like Mitch McConnell is folding to the Democrats, again,” Trump said in a statement issued through his Save America PAC. “He’s got all of the cards with the debt ceiling, it’s time to play the hand. Don’t let them destroy our Country!” Less than an hour before the scheduled Senate vote, Trump again urged Republicans not to vote for “this terrible deal.”
Trump’s co-conspirator and former White House adviser Stephen Bannon titled his Wednesday podcast, “McConnell’s Betrayal of America Will Create Debt Slaves.” The openly fascist wing of the Republican Party headed by Trump, following the Hitler playbook, considers a financial crash a potential boon to its ongoing plot to establish a dictatorship.
Bernie Sanders, who as chairman of the Senate Budget Committee is playing a key role in drastically downsizing Biden’s social spending and climate bill to accommodate the most right-wing Democrats, hailed the debt ceiling deal, calling McConnell’s offer “very good news.” The self-styled scourge of the “billionaire class” spoke unabashedly as a supporter of the “wealthiest nation on earth” and its need to “pay its debts.”
ERIC HOLDER’S LONGTIME EXCUSE FOR NOT PROSECUTING BANKS JUST CRASHED AND BURNED
New evidence supports critique that Holder, for a combination of political, self-serving, and craven reasons, held his department back from prosecuting big banks.
David Dayen
July 12 2016, 8:05 a.m.
ERIC HOLDER HAS long insisted that he tried really hard when he was attorney general to make criminal cases against big banks in the wake of the 2007 financial crisis. His excuse, which he made again just last month, was that Justice Department prosecutors didn’t have enough evidence to bring charges.
Many critics have long suspected that was bullshit, and that Holder, for a combination of political, self-serving, and craven reasons, held his department back.
A new, thoroughly-documented report from the House Financial Services Committee supports that theory. It recounts how career prosecutors in 2012 wanted to criminally charge the global bank HSBC for facilitating money laundering for Mexican drug lords and terrorist groups. But Holder said no.
When asked on June 8 why his Justice Department did not equally apply the criminal laws to financial institutions in the wake of the 2008 economic crisis, Holder told the platform drafting panel of the Democratic National Committee that it was laboring under a “misperception.”
He told the panel: “The question you need to ask yourself is, if we could have made those cases, do you think we would not have? Do you think that these very aggressive U.S. attorneys I was proud to serve with would have not brought these cases if they had the ability?”
The report — the result of a three-year investigation — shows that aggressive attorneys did want to prosecute HSBC, but Holder overruled them.
In September 2012, the Justice Department’s Asset Forfeiture and Money Laundering Section (AFMLS) formally recommended that HSBC be prosecuted for its numerous financial crimes.
The history: From 2006 to 2010, HSBC failed to monitor billions of dollars of U.S. dollar purchases with drug trafficking proceeds in Mexico. It also conducted business going back to the mid-1990s on behalf of customers in Cuba, Iran, Libya, Sudan, and Burma, while they were under sanctions. Such transactions were banned by U.S. law.
Newly public internal Treasury Department records show that AFMLS Chief Jennifer Shasky wanted to seek a guilty plea for violations of the Bank Secrecy Act. “DoJ is mulling over the ramifications that could flow from such an approach and plans to finalize its decision this week,” reads an email from September 4, 2012, to senior Treasury officials. On September 7, Treasury official Dennis Wood describes the AFMLS decision as an “internal recommendation to ask the bank [to] plead guilty.” It was a “bombshell,” Wood wrote, because of “the implications of a criminal plea,” and “the sheer amount of the proposed fines and forfeitures.”
But after British financial minister George Osborne complained to the Federal Reserve chairman and the Treasury Secretary that DOJ was unfairly targeting a British bank, senior Justice Department leadership reportedly sought to “better understand the collateral consequences of a conviction/plea before taking such a dramatic step.”
The report documents how Holder and his top associates were concerned about the impact that prosecuting HSBC would have on the global economy. And, in particular, they worried that a guilty plea would trigger a hearing over whether to revoke HSBC’s charter to do banking in the United States.
According to internal documents, the DOJ then went dark for nearly two months, refusing to participate in interagency calls about HSBC. Finally,on November 7, Holder presented HSBC with a “take it or leave it” offer of a deferred prosecution agreement, which would involve a cash settlement and future monitoring of HSBC.
No guilty plea was required.
But even the “take it or leave it” offer was apparently not the last word. HSBC was able to negotiate for nearly a month after Holder presented that offer, getting more favorable terms in the ultimate $1.9 billion deferred prosecution agreement, announced on December 11, 2012.
The original settlement documents would have forced any HSBC executive officers to void their year-end bonuses if they showed future failures of anti-money laundering compliance. The final documents say that, in the event of such failures, senior executives merely “could” have their bonuses clawed back.
In addition, HSBC successfully negotiated to have individual executives immunized from prosecution over transactions with foreign terrorist organizations and other sanctioned entities, even though the original agreement only covered the anti-money laundering violations and explicitly left open the possibility of prosecuting individuals.
As a Justice Department functionary in 1999, Holder wrote the infamous “collateral consequences” memo, advising prosecutors to take into account economic damage that might result from criminally convicting a major corporation.
In 2013, he unwittingly earned his place in history for telling the Senate Judiciary Committee, “I am concerned that the size of some of these [financial] institutions becomes so large that it does become difficult for us to prosecute them,” which became known as the “Too Big to Jail” theory.
Holder told the Democratic platform drafting committee that “it was not lack of desire or lack of resources” that led to the lack of prosecutions for any major bank executive following the financial crisis. “We had in some cases statutory and sometimes factual inabilities to bring the cases that we wanted to bring,” he said.
The HSBC case, however, shows that lack of desire at the highest levels of the Justice Department was indeed the primary reason that no prosecutions took place.
Former Rep. Brad Miller, D-N.C., who also testified to the drafting committee, cited the HSBC case as an example of the lack of equal application of justice in the Holder era. Referring to the concern over destabilizing the financial system with an HSBC prosecution, Miller said, “That’s not an argument that’s available to too many people: ‘You can’t arrest me for selling cigarettes, it might destabilize the financial system!’ ”
The internal communications in the House report all come from the Treasury Department. The Justice Department, they say, did not comply with subpoenas for information about the settlement.
Holder has returned to Covington & Burling, a corporate law firm known for serving Wall Street clients in 2015. He had worked at Covington from 2001 until he was sworn in as attorney general in Feburary 2009. Covington literally kept an office empty for him, awaiting his return.
Jennifer Shasky, the AFMLS chief who requested the prosecution of HSBC but was overruled, recently resigned as the head of the Financial Crimes Enforcement Network to become a senior compliance officer with HSBC.
Eric Holder, Wall Street Double Agent, Comes in From the Cold
Barack Obama’s former top cop cashes in after six years of letting banks run wild
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MATT TAIBBI
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Eric Holder is back at Covington & Burling after serving as U.S. attorney general for six years.
Saul Loeb/AFP/Getty
Eric Holder has gone back to work for his old firm, the white-collar defense heavyweight Covington & Burling. The former attorney general decided against going for a judgeship, saying he’s not ready for the ivory tower yet. “I want to be a player,” he told the National Law Journal, one would have to say ominously.
Holder will reassume his lucrative partnership (he made $2.5 million the last year he worked there) and take his seat in an office that reportedly – this is no joke – was kept empty for him in his absence.
The office thing might have been improper, but at this point, who cares? More at issue is the extraordinary run Holder just completed as one of history’s great double agents. For six years, while brilliantly disguised as the attorney general of the United States, he was actually working deep undercover, DiCaprio in The Departed-style, as the best defense lawyer Wall Street ever had.
Holder denied there was anything weird about returning to one of Wall Street’s favorite defense firms after six years of letting one banker after another skate on monstrous cases of fraud, tax evasion, market manipulation, money laundering, bribery and other offenses.
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“Just because I’m at Covington doesn’t mean I will abandon the public interest work,” he told CNN. He added to the National Law Journal that a big part of the reason he was going back to private practice was because he wanted to give back to the community.
“The firm’s emphasis on pro bono work and being engaged in the civic life of this country is consistent with my worldview that lawyers need to be socially active,” he said.
Right. He’s going back to Covington & Burling because of the firm’s emphasis on pro bono work.
Here’s a man who just spent six years handing out soft-touch settlements to practically every Too Big to Fail bank in the world. Now he returns to a firm that represents many of those same companies: Morgan Stanley, Wells Fargo, Chase, Bank of America and Citigroup, to name a few.
Collectively, the decisions he made while in office saved those firms a sum that is impossible to calculate with exactitude. But even going by the massive rises in share price observed after he handed out these deals, his service was certainly worth many billions of dollars to Wall Street.
Now he will presumably collect assloads of money from those very same bankers. It’s one of the biggest quid pro quo deals in the history of government service. Congressman Billy Tauzin once took a $2 million-a-year job lobbying for the pharmaceutical industry just a few weeks after helping to pass the revolting Prescription Drug Benefit Bill, but what Holder just did makes Tauzin look like a guy who once took a couple of Redskins tickets.
In this light, telling reporters that you’re going back to Covington & Burling to be “engaged in the civic life of this country” seems like a joke for us all to suck on, like announcing that he’s going back to get a doctorate at the University of Blow Me.
Holder doesn’t look it, but he was a revolutionary. He institutionalized a radical dualistic approach to criminal justice, essentially creating a system of indulgences wherein the world’s richest companies paid cash for their sins and escaped the sterner punishments the law dictated.
Here are five pillars of the Holder revolution:
One is that he failed to win a single conviction in court for any crimes related to the financial crisis. The only trial of any consequence brought by his Justice Department for crimes related to the crisis involved a pair of Bear Stearns nimrods named Ralph Cioffi and Matthew Tannin, who confided in each other via email that the subprime markets were “toast” but told their clients something very different to keep them invested.
After a jury acquitted both in early 2009, the Holder Justice Department turtled. Sources inside the DOJ told me over the years that both Holder and his deputy, fellow Covington & Burling alum Lanny Breuer, were obsessed with winning and refused to chance any case where they felt a jury might go sideways on them. Thus the Cioffi-Tannin case was the last financial crisis case they dared to bring into to a criminal courtroom – virtually every other case ended in settlements.
Two: Holder famously invented a concept called “collateral consequences,” under which the state could pursue non-criminal alternatives for companies if they believed prosecuting them might result in too much “collateral” damage. Britain’s HSBC bank, which admitted to massive money laundering violations, and the Swiss bank UBS, which was caught manipulating the Libor interest rate benchmark, were examples of firms that escaped vigorous prosecution because Holder and his lackeys were, ostensibly anyway, concerned about market-altering consequences.
Significantly, both banks were later caught up in even more serious scandals, leading to criticism that stiffer punishments the first time around might have prevented future damage. Holder’s successor Loretta Lynch was even forced to rip up Holder’s UBS deal for being insufficiently punitive. It’s worth noting that Holder, before he became attorney general, represented UBS at Covington & Burling.
Holder’s lenient policies were deployed at a time when fellow officials like Tim Geithner and Ben Bernanke were using bailout monies to merge troubled firms together and create even larger mega-companies. Chase and Wells Fargo, which swallowed up Washington Mutual and Wachovia in state-aided takeovers, were prototypes of the modern mega-bank. So when Holder wedded “collateral consequences” to these new Too Big to Fail mega-firms, he created Too Big to Jail. This is a huge part of his legacy, the creation of an unjailable class.
Three: Holder also pioneered the extrajudicial settlement, striking huge deals with companies in which judges did not sign off on the agreements. The arrangement prevented pesky judges like the irksome Jed Rakoff (who voided a pair of settlements he felt were inadequate) from protesting lenient justice.
This essentially institutionalized the backroom deal. Everything was done in secret, and there was no longer any opportunity for judges or anyone else to check the power of the executive branch to hand out financial indulgences.
The watchdog group Better Markets described the $13 billion Chase settlement, one of the biggest extrajudicial deals, as “an unprecedented settlement amount [that] cannot…immunize the DOJ from having to obtain independent judicial review of its otherwise unilateral, secret actions.”
Four: There is a huge misconception, pushed equally by odd bedfellows in the financial community and Obama supporters, that Eric Holder didn’t send anyone from Wall Street to jail because “no one broke any laws.”
This preposterous meme grew out of something Barack Obama said on 60 Minutes. Here are the president’s exact words:
“Some of the most damaging behavior on Wall Street — in some cases some of the least ethical behavior on Wall Street — wasn’t illegal.”
Obama, a brilliant lawyer and wordsmith, was not saying that all of the behavior leading to the crash was legal. He merely said that some of the worst behavior wasn’t illegal. Which is true. Meaningless, but true.
Of course, some of the worst behavior was very illegal. This is confirmed in the fact that Holder extracted billions of dollars in settlement monies and even, in a few cases, obtained guilty pleas for crimes like fraud, manipulation, bribery, money laundering and tax evasion.
Anyone who even tries to claim that none of the banks actually did anything illegal should be directed to the HSBC settlement of December 2012. In this deferred prosecution agreement, Europe’s largest bank paid $1.92 billion to settle their responsibility for violations of the Bank Secrecy Act and other laws.
This is from a description of HSBC’s crimes by Holder’s Justice Department:
“As a result of HSBC Bank USA’s AML failures, at least $881 million in drug trafficking proceeds – including proceeds of drug trafficking by the Sinaloa Cartel in Mexico…were laundered through HSBC Bank USA.”
You might remember the Sinaloa cartel for their ISIS-style, unforgettably upsetting torture videos. HSBC washed their cash. They even created special teller windows to make their deposits easier. This is admitted, not alleged.
But Holder went out of his way to let them keep their U.S. charter. He gave their executives a grand total of zero days in jail, zero dollars in individual fines.
To reiterate: HSBC laundered money for guys who chop peoples‘ heads off with chainsaws. So we can dispense with the “but no one broke any laws” thing.
When asked about this in testimony before the Senate, Holder told elected officials he was concerned harsher penalties against firms like HSBC would “have a negative impact on the national economy,” and that this “has an inhibiting influence…on our ability to bring resolutions that I think would be more appropriate.”
Compare this to what he just said after returning to Covington & Burling:
“I think that what we did in the department was, I always like to say, appropriately aggressive. There may be clients that, for whatever reason, will not decide to work with me…”
Oddly enough, Holder used that same phrase – “appropriately aggressive” – in his Senate testimony. In other words, the attorney general said he was “inhibited” from giving “appropriate” punishments just a few moments before claiming his punishments were appropriate. This is classic Clintonian politics, saying two things at the same time, neither of them true.
Five: Holder contributed countless subtle inventions to soften punishments. The most revolting in my view was allowing banks like Chase the courtesy of calling their settlements “remedial payments” instead of fines for wrongdoing.
This seemingly insignificant semantic tweak allowed the bank to call $7 billion of their settlement a business expense, which meant they could claim it as a tax deduction, which in turn meant that taxpayers like you and me paid a whopping $2.45 billion of Chase’s penalty.
Some of the write-ups of these decisions emanating from the financial and legal press were hilarious. Law360.com, noting that the settlement language meant that 35 percent of the bank’s regulatory burden would be shifted “onto the backs of taxpayers,” pointed out, as if surprised, that the tax treatment “sparked debate” and that “some are even angry about it.” Shocking!
Of course, none of us mortals can deduct so much as a speeding ticket, since we wouldn’t want to use the tax code to encourage speeding. So why was it OK for the nation’s top cop to make fraud or money laundering a tax-subsidized activity?
There were other tricks. Banks that committed multiple violations of the same offense were often allowed to settle or plead to just one count. And in many cases the fines were staggeringly low compared to the volume of crime – BNP-Paribas, for instance, paid $8.9 billion after laundering $30 billion, meaning they paid about 27 cents per dollar of violations.
Holder is a cynic of a type that’s increasingly common in Washington. To follow his Justice Department was like watching an endless reel of The Good Wife – smart lawyers half-cleverly constructing one unseemly moral compromise after another, always justifying it to themselves in the end somehow in the name of keeping the ball rolling.
Holder doubtless seriously believed at first that in a time of financial crisis, he was doing the right thing in constructing new forms of justice for banks, where nobody but the shareholders actually had to pay for crime. You’ve heard of victimless crimes; Holder created the victimless punishment.
But in the end, it was pretty convenient, wasn’t it, that “the right thing” also happened to be the strategy that preserved Democratic Party relationships with big-dollar donors, kept the client base at Holder’s old firm nice and fat, made the influential rich immeasurably richer and allowed Eric Holder himself to crash-land into a giant pile of money upon resignation.
What a coincidence! In any civilized country, it’d be a scandal. In America, though, he’s just another guy selling whatever he can to get by. It was just too bad that what Holder had to sell was the criminal justice system.
Attorney General Eric Holder's bank prosecution legacy
Darrell Delamaide
Special for USA TODAY
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WASHINGTON — Is lying on a mortgage application fraud when lenders aren't interested in the truth?
This may sound like an abstract philosophical question similar to trees falling in the forest with no one around to hear, but it was in fact a novel legal tactic that got four defendants in California acquitted of mortgage fraud.
A jury of their peers bought the defense argument that the real fraud was being perpetrated by executives at the lending institutions.
"In the Sacramento case, the jury essentially found that the truth or falsity of the documentation the borrowers provided was immaterial," the Los Angeles Times reported, "the lenders would have made the loans anyway."
The case turned on the expert testimony of William Black, a law professor and tireless critic of the banks, who told the jury that the lenders involved wanted so-called "liar loans" to acquire mortgages rapidly so they could sell them off at a profit. They specifically instructed loan officers not to verify stated income — an invitation for applicants to inflate the figure.
Black, who is affiliated with the University of Missouri-Kansas City, was involved as a regulator in investigating and prosecuting the widespread fraud and corruption in the savings and loan crisis in the late 1980s.
"The saying in the savings and loan debacle is you never wanted to be the guy that was chasing mice while lions roamed the campsite," Black said on the Bill Moyers show last weekend. "So the mice are these alleged tiny frauds type of thing, where they ignore the lions, who are the CEOs of the banks and such."
The acquittal in the California case in August came just ahead of the announcement last month that Attorney General Eric Holder would step down as soon as a successor can be confirmed.
"He will leave behind a mixed scorecard," Moyers said. "A for civil rights, C for civil liberties and F for failing to prosecute the banking executives who brought about the financial calamity of 2008."
The complete failure of the Justice Department to prosecute a single bank executive while levying billions of dollars of fines with individual banks for fraud and other felonies continues to draw criticism from journalists, legal experts and lawmakers.
Not so coincidentally, a story in the New York Times this week said that the Justice Department, still headed by Holder, may indeed prosecute individual traders in connection with its investigation of fixing the foreign exchange markets.
"The charges will most likely focus on traders and their bosses rather than chief executives," the Times dryly reported, citing anonymous lawyers. "As a result, critics of the Justice Department might view the cases as little more than an exercise in public relations."
Eventual fines and guilty pleas for the banks over currency trading would come on top of billions in fines already levied against many of these same big banks — JPMorgan Chase, Citigroup, Deutsche Bank, Barclays and UBS are named in the latest Times story — for fixing the benchmark LIBOR rate.
These fines — in addition to settlements for fraud in mortgage securities, in illegal foreclosures and robo-signings, bid rigging in municipal bonds and a host of other infractions in recent years — make it hard to see these banks as anything other than rogue institutions who are willing to systematically violate the law.
Somebody is responsible for that.
Black, who likes to point out that regulators in the S&L crisis made many thousands of criminal referrals that resulted in more than a thousand successful prosecutions, makes no secret of his scorn of the current tactics of the regulators and the Justice Department.
"Apparently modern financial regulators are vastly more sophisticated than we were as financial regulators 25 years ago" Black told Moyers. "Because we had never figured out that the key to financial stability was leaving felons in charge of the largest financial institutions in the world."
Black has argued since the onset of the financial crisis in 2009 that prosecution of individuals will not, as former Treasury secretary Timothy Geithner maintained, destabilize the financial system.
The prosecutions in the S&L crisis, he told Moyers, "greatly enhanced financial stability instead of the other way around."
The guilty executives were no longer a danger to the financial system because they had criminal records. This is not the case in the wake of the recent crisis and heightens the risk of a new crisis.
"If you want to create the next crisis and make it vastly worse," Black said, "leave the people in charge who led the frauds in the senior ranks at the banks in charge of those banks. So now they have all the postgraduate education in how to run a fraud. And they learned that there are no consequences other than good consequences."
Delamaide has reported on business and economics from New York, Paris, Berlin and Washington for Dow Jones News Service, Barron's, Institutional Investor and Bloomberg News, among others.
Eric Holder didn't send a single banker to jail for the mortgage crisis. Is that justice?
US attorney general’s tenure has proven unhelpful to the five million victims of mortgage abuses in the US
Holder has a mixed legacy: excellent on civil and voting rights, bad on press freedom and transparency. Photograph: JONATHAN ERNST/Reuters
David Dayen
Thu 25 Sep 2014 16.11 EDT
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The telling sentence in NPR’s report that US attorney general Eric Holder plans to step down once a successor is confirmed came near the end of the story.
“Friends and former colleagues say Holder has made no decisions about his next professional perch,” NPR writes, “but they say it would be no surprise if he returned to the law firm Covington & Burling, where he spent years representing corporate clients.”
A large chunk of Covington & Burling’s corporate clients are mega-banks like JP Morgan Chase, Wells Fargo, Citigroup and Bank of America. Lanny Breuer, who ran the criminal division for Holder’s Justice Department, already returned to work there.
In March, Covington highlighted in marketing materials their award from the trade publication American Lawyer as “Litigation Department of the Year,” touting the law firm’s work in getting clients accused of financial fraud off with slap-on-the-wrist fines.
Covington, American Lawyer says, helps clients “get the best deal they can.”
Holder has a mixed legacy: excellent on civil and voting rights, bad on press freedom and transparency.
But if you want to understand what he did for the perpetrators of a cascade of financial fraud that blew up the nation’s economy in 2008, you only have to read that line from his former employer: he helped them “get the best deal they can.”
As for homeowners, they received a raw deal, in the form of little or no compensation for some of the greatest consumer abuses in American history.
Before Holder became Attorney General, banks fueled the housing bubble with predatory and at times, allegedly fraudulent practices.
As far back as 2004, the FBI warned of an “epidemic” of mortgage fraud, which they said would have “as much impact as the Savings & Loan crisis.”
They were wrong; it was worse.
Brian T Moynihan, chief executive officer of Bank of America Corp, one of the banks accused of extensive mortgage abuses. Very little of the money from its settlements has gone to help homeowners. Photograph: Bloomberg via Getty Images
And banks and lenders carried through that fraud to every level of the mortgage process. They committed origination fraud through faulty appraisals and undisclosed trickery.
They committed servicing fraud through illegal fees and unnecessary foreclosures.
They committed securities fraud by failing to inform investors of the poor underwriting on loans they packaged into securities.
They committed mass document fraud when they failed to follow the steps to create mortgage-backed securities, covering up with fabrications and forgeries to prove the standing to foreclose.
By the time the bubble collapsed, the recession hit and Holder took over the Justice Department, Wall Street was a target-rich environment for any federal prosecutor. Physical evidence to an untold number of crimes was available in court filings and county recording offices.
Financial audits revealed large lapses in underwriting standards as early as 2005. Provisions in the Sarbanes-Oxley Act, passed during the last set of financial scandals in 2002, could hold chief executives criminally responsible for misrepresenting their risk management controls to regulators.
Any prosecutor worth his salt could have gone up the chain of command and implicated top banking executives.
In 2009, Congress passed the Fraud Enforcement and Recovery Act, giving $165m to the Justice Department to staff the investigations necessary to bring those accountable for the financial crisis to justice.
Yet, despite the Justice Department’s claims to the contrary, not one major executive has been sent to jail for their role in the crisis.
The department has put real housewives in jail for mortgage fraud, but not real bankers, saving their firepower for people who manage to defraud banks, not for banks who manage to defraud people.
Most of the “investigations” of financial institutions over the past six years have swiftly moved to cash settlements, often without holding anyone responsible for admitting wrongdoing or providing a detailed description of what they did wrong.
The headline prices of these settlements usually bore no resemblance to the reality of what they cost the banks.
The National Mortgage Settlement, for example, was touted by Holder’s Justice Department as a $25bn deal. In reality, banks were able to pay one-quarter of that penalty with other people’s money, lowering principal balances on loans they didn’t even own.
Other penalties featured similarly inflated numbers that didn’t reflect the true cost. Banks could satisfy their obligations under the settlements through routine business practices (including some, like making loans to low-income homeowners, that make them money).
A recent series of securities fraud settlements with JP Morgan, Bank of America and Citigroup, which DoJ said cost the banks $36.65bn, actually cost them about $11.5bn. And shareholders, not executives, truly bear that cost.
Incidentally, the Wall Street Journal found last week that the Justice Department only collects around 25% of the fines they impose. So the banks may have gotten off even easier.
The Justice Department has reportedly collected only 25% of the fines it has imposed on banks. Photograph: Petros Giannakouris/AP
These settlements have actually perverted the notion of justice, turning accountability into a public relations vehicle. And Holder’s Justice Department has been guilty of cooking the books: they admitted last August to overstating the number of criminal financial fraud charges by over 80%.
The DoJ’s Inspector General criticized this in a March report, and also found that DoJ de-prioritized mortgage fraud, making it the “lowest-ranked criminal threat” from 2009-2011.
As for homeowners, the biggest victims of Wall Street misconduct, they received little relief. Victims who already lost their homes got checks in the National Mortgage Settlement for between $1,500-$2,000, compensating people wrongly foreclosed upon with barely enough money for two month’s rent.
Despite claims that 1m borrowers still in their homes would get principal reductions under the settlement, when the final numbers came in this March, just 83,000 families received such a benefit, an under-delivery of over 90%.
Considering that over five million families experienced foreclosures since the end of the crisis, that relief is a drop in the bucket.
For those still eligible for relief, thanks to the expiration of a law called the Mortgage Forgiveness Debt Relief Act, any principal forgiveness will count as earned income for tax purposes, meaning that homeowners struggling to avoid foreclosure will subsequently get hit with a tax bill they cannot afford.
The Justice Department only recognized this belatedly, creating a fund in a recent Bank of America settlement to “partially” defray tax costs.
For others without that benefit, the help the Justice Department provided will look more like harm.
More important, the settlements didn’t end the misconduct.
Homeowners today continue to lose their homes based on false documents. Because the Justice Department just put a band-aid over the fraud, and didn’t convict any of the ringleaders, the problems went unaddressed, and the root causes never got fixed.
In fact, the entire banking sector’s get-out-of-jail free card gives them confidence that they could commit the same crimes again, with little if any legal implications.
The decision to protect banks instead of homeowners should be laid at the feet of the president and his administration, not one man in the Justice Department. But Holder certainly carried out the policy, even if he didn’t devise it.
We’ll soon find out if Holder merely presided over DoJ in a pause between helping corporate clients at Covington & Burling. But the failure to prosecute during his time in office certainly makes it look like Holder’s sympathies were with those clients even while serving as attorney general.
STREET SCENE
A Clue to the Scarcity of Financial Crisis Prosecutions
Eric Holder, the former United States attorney general, in 2015. Mr. Holder said in May that the Justice Department did not charge specific individuals after the 2008 financial crisis because it “simply did not have the proof.”
Credit...Zach Gibson/The New York Times
By William D. Cohan
· July 21, 2016
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One of the enduring mysteries of the 2008 financial crisis has been why the Justice Department made so few attempts to prosecute the individuals responsible for it, given the abundance of tangible evidence of wrongdoing by Wall Street bankers, traders and executives in the years leading up to the great unwinding.
Yes, the United States attorney in the Eastern District of New York tried, and failed, to prosecute the Bear Stearns executives who were responsible for the two hedge funds that collapsed in July 2007. And yes, in November 2013, Kareem Serageldin, a former senior trader at Credit Suisse, was sentenced to 30 months in prison for inflating the value of mortgage bonds in his trading portfolio, allowing them to appear more valuable than they really were in hopes of receiving a bigger bonus. (Mr. Serageldin was released from prison in March.) But that is pretty much it. The Justice Department’s main accomplishment was extracting $200 billion in civil fines and penalties from a variety of financial institutions in exchange for releasing them from the threat of future prosecutions.
We might never know why Eric H. Holder Jr., the former attorney general, chose to let Wall Street off the hook with just a proverbial slap on the wrist. After six years as attorney general and a short break after leaving government last year, he recently rejoined his old Wall Street law firm, Covington & Burling, in Washington as a partner focused on litigation, complex investigations and regulatory matters.
Mr. Holder does not give many interviews. He declined Gretchen Morgenson’s request last week to discuss his logic for not prosecuting the giant British bank HSBC for money laundering, despite the recommendations of his staff to do so. But in late May, Mr. Holder sat down with David Axelrod, who was the chief strategist for Barack Obama’s two presidential campaigns, for an hourlong conversation on Mr. Axelrod’s “The Axe Files” podcast. Toward the end of the conversation, Mr. Axelrod, a friendly interviewer for sure, asked Mr. Holder about the elephant in the room: Why were so few Wall Street bankers, traders and executives held accountable for the 2008 financial crisis, compared to the many individuals who were sent to jail for their roles in the savings-and-loan crisis of the 1980s?
“There is a fundamental question people have to ask themselves,” Mr. Holder responded. “Do you actually think that if we could have brought these cases, we would not have?” That’s the party line, of course.
He then added that Preet Bharara, the United States attorney in the Southern District of New York, and Loretta Lynch, Mr. Holder’s successor as attorney general and a former federal prosecutor in Brooklyn, would have brought cases against Wall Street if they could have. They didn’t, he said, because “we have a responsibility in the Justice Department to only bring those cases where we think we have a better than 50 percent chance of winning, and if you look at the different ways in which decision-making was made in these financial institutions, we simply didn’t have the ability to point to specific individuals to say that person was responsible for this specific action. We simply did not have the proof. If we could have made these cases, we certainly would have brought them.” He said that he, too, was “frustrated” by the lack of prosecutions of individual wrongdoing, but he did seem to take pride in the “record-breaking” amount of money collected from the banks in the form of civil penalties.
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But forcing big banks to hand over their shareholders’ money in exchange for burying forever the evidence of wrongdoing is not nearly the same as holding people accountable for their behavior.
Leaving aside for the moment the long list of Wall Street whistle-blowers — among them Richard M. Bowen III at Citigroup, Alayne Fleischmann at JPMorgan Chase, Michael Winston at Countrywide Financial and Peter Sivere at Barclays Capital — who tried to interest law enforcement officials in what they had witnessed at their companies (instead, each of them was fired), there may be another reason the Justice Department has proved to be less than vigilant in its sworn duty to prosecute Wall Street wrongdoing. It has more to do with legal arcana than with a supposed lack of evidence: The Justice Department was afraid that it was misapplying the law — the Financial Institutions Reform, Recovery and Enforcement Act of 1989, known as Firrea — used to force Wall Street into financial settlements.
That law gives the government wide latitude to bring civil fraud cases against federally insured depository institutions and has lower burdens of proof than those found in criminal business fraud statutes. Importantly, it also has a 10-year statute of limitations, allowing the government more time to bring a case, or to threaten to bring a case. And since the investigations into Wall Street wrongdoing got such a late start — they really got going in 2012, about four years after the start of the crisis — the 10-year statute of limitations proved to be an effective weapon to get the big banks to settle. Bank after bank capitulated.
But one bank tried to fight, arguing in part that the law had been misapplied. In October 2013, a jury found that Countrywide Financial, by then a subsidiary of Bank of America, had sold about 17,000 shoddy mortgages in 2008 to Fannie Mae and Freddie Mac under a short-lived program known colloquially as the “hustle.” In July 2014, after the jury’s decision, federal Judge Jed Rakoff imposed a $1.27 billion penalty on Bank of America.
“While the process lasted only nine months,” Judge Rakoff wrote in his decision, “it was from start to finish the vehicle for a brazen fraud by the defendants, driven by a hunger for profits and oblivious to the harms thereby visited, not just on the immediate victims but also on the financial system as a whole.”
Bank of America appealed the case to the United States Court of Appeals for the Second Circuit. The bank argued that Judge Rakoff — long known for his tough stance against big Wall Street banks — was unfairly biased against it, that it was unable to present “a meaningful defense” and that “from beginning to end, what took place in this case was not only unfair, but utterly unprecedented.” In a brief filed in support of Bank of America, lawyers at WilmerHale, on behalf of four powerful organizations — the Clearing House Association, American Bankers Association, Financial Services Roundtable and Chamber of Commerce of the United States — argued instead that the very use of Firrea to go after Bank of America in the “hustle” case was the problem because that law was intended to protect a bank from the harm of others, not from itself.
The appeal was the first of a case that relied upon Firrea, so the Second Circuit’s ruling was watched carefully. If it were overturned, that could mean the end of using Firrea as a cudgel to get banks to pay in the remaining 175 or so civil lawsuits still pending against Wall Street.
On May 23, the Second Circuit threw out the verdict against Bank of America and vacated the penalty against it. In its opinion, the court decided not to address the specific issue of the use of Firrea against Bank of America because the bank had “persuaded” the court that the government had not proved that Bank of America violated the law in the first place.
But that the Second Circuit reversed the decision deeply troubles Mr. Bowen, the Citigroup whistle-blower, who was fired from his Wall Street job after alerting his bosses to wrongdoing at the bank and whose pleas for justice have continued to go unheeded.
“Bottom line,” he wrote me in an email from Dallas, where he is a senior lecturer in accounting at the University of Texas campus there, “the D.O.J. could not stand the embarrassment of pursuing prosecutions, only to then have the courts throw out those convictions because the D.O.J. had no legal grounds to pursue them under Firrea. That would be the ultimate proof of the D.O.J.’s incompetence and the reason they have not pursued prosecutions despite the evidence.”
The mystery continues.
William D. Cohan is a former senior mergers and acquisitions banker who has written three books about Wall Street. His latest book is “The Price of Silence: The Duke Lacrosse Scandal, the Power of the Elite, and the Corruption of Our Great Universities.”
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