Joe Nocera: The Justice Department’s Inability to Prosecute Big Corporations!

Dear Commons Community,

In his New York Times column today, Joe Nocera, examines the U.S. Department of Justice inability to handle cases involving large corporations especially financial institutions. Here is an excerpt:

“… in the fall of 2009, in the wake of criticism that it was failing to prosecute executives of the companies that had brought the financial system to the brink of disaster, the Justice Department established the Financial Fraud Enforcement Task Force. Its purpose, said Justice, was “to hold accountable those who helped bring about the last financial crisis.” It promised to “prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, recover proceeds for victims” and so on.

A year later, its mortgage fraud effort — “Operation Stolen Dream,” it was called — had collared 1,500 criminal defendants, “with nearly $200 million in civil recoveries ordered.”

But a closer look told another story. The vast majority of defendants prosecuted for mortgage fraud were small-fry — people who had lied on liar loans, for instance, or small-time independent mortgage brokers. As often as not, the “victims” they were supposed to repay were the banks that had accepted, with a wink and a nod, their liar loan applications. Top executives of companies like Countrywide or New Century or Lehman Brothers evaded serious consequences. Fundamentally, the Financial Fraud Enforcement Task Force was an exercise in public relations.

Now comes the Justice Department’s latest exercise in public relations: the Credit Suisse settlement that was announced earlier this week. The Swiss bank’s crime was systematically setting up, well, Swiss bank accounts, allowing Americans to evade taxes. According to the Senate Permanent Subcommittee on Investigations, the bank had 22,000 private accounts for American customers worth as much as $12 billion as of 2006. In meting out the punishment, the Justice Department, for the first time since the financial crisis, demanded that a major financial firm plead guilty to a criminal count. That is what the headline writers highlighted — and what Attorney General Eric Holder Jr. stressed.

“This case shows that no financial institution, no matter its size or global reach, is above the law,” said Holder at a news conference.
In fact, it shows nothing of the sort. Yes, Credit Suisse agreed to pay $2.6 billion; that’s real money, but nothing a bank its size can’t handle. And yes, three years ago, seven midlevel Credit Suisse executives were indicted. But in the just-announced settlement, no one in top management was forced to resign. The U.S. wanted the names of the Americans with private Credit Suisse bank accounts; Justice settled without getting them. And, most amazing of all, pleading guilty to a felony will have absolutely no business consequences for Credit Suisse. For instance, a Securities and Exchange Commission rule forbids a firm convicted of a felony from serving as an investment adviser; the rule was temporarily waived for Credit Suisse.”

Nocera goes on to question other cases but the bottom line is that time and time again, large financial institutions plea bargain for a lesser crime and pay a fine which to ordinary people seems substantial but to these corporations is relatively small change and no one goes to jail.

It is a way of gaming the system that white collar criminals and their corporate lawyers understand well.


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