An embarrassing feature of the financial crisis has been the lack of criminal prosecutions. Despite the extraordinary level of talent in the Justice Department, the Attorney General cannot muster a serious case. Promises of investigations and action have proven hollow.
Hitting Bottom?
This week we reached a new low in this dearth of prosecutions. A Wall Street analyst temporarily cheered the financial markets in his analysis of Goldman’s Sachs’ legal predicament:
Goldman Sachs Group Inc. (GS) won’t face criminal prosecution related to sales of mortgage-linked securities because such a move could threaten the U.S. financial system, according to Brad Hintz, an analyst at Sanford C. Bernstein & Co.
The U.S. Department of Justice, which is reviewing a Senate subcommittee report that alleged Goldman Sachs misled clients before the financial crisis, will avoid jeopardizing the fifth- largest U.S. bank by assets because it’s viewed as “too big to fail,” Hintz wrote in a note to clients today.
“If an alleged violation is identified during a Goldman investigation, we expect a reasoned response from the Justice Department,” Hintz wrote. “In a worst case environment, we would expect a ‘too big to fail’ bank such as Goldman to be offered a deferred-prosecution agreement, pay a significant fine and submit to a federal monitor in lieu of a criminal charge.” Goldman ‘Too Big’ to Face Prosecution Over Mortgage Securities, Hintz Says
Institutionalized Cynicism
Mr. Hintz’s analysis oozes Wall Street smugness. Too big to fail institutions can break the law with impunity with little threat of meaningful retribution? I would insist that “meaningful retribution” does not mean large fines; it means jail time for convicted executives and sanctions for criminal enterprises.
Let’s examine Mr. Hintz’ moral bankruptcy:
- We are three years into this financial crisis. Even though it is patently absurd, Bernanke and Geithner have proclaimed themselves system saviors. To the contrary, we have spent $5.1 trillion dollars in deficit spending. We have rewarded reckless bank investments, and kept interest rates at zero. And yet an analyst has the temerity to assert that the indictment and conviction of Goldman Sachs would jeopardize the financial system? If this is true, then Geithner and Bernanke should be indicted as well.
- Goldman Sachs has already entered into a $550m civil settlement with the SEC for misleading investors in mortgage-backed securities. It also agreed to reform its business practices. Clearly, Goldman does not fear the worst retribution, as it has misled or committed perjury in testifying before Sen. Levin’s subcommittee. Truthful testimony before a Congressional committee is fundamental to our democracy. Panels investigating Watergate, Washington corruption and organized crime elicited truthful testimony under the threat of perjury and jail time. How is the public served in letting a Wall Street firm and its executives expect but a wrist slap?
- Equal justice under the law is fundamental to our democracy, and it is being undermined. Anger and cynicism is on the rise. Why not rob a bank if the worst penalty is that you will have to pay back only a fraction of the proceeds? Why continue to voluntarily pay your taxes? Underpay or refuse to pay and then negotiate. We cannot incarcerate enough juveniles from the ghetto nor throw enough drug dealers in prison. While these individuals may have committed reprehensible crimes, fraud and perjury are equally reprehensible.
A Glimmer of Hope?
Today the tide appears to be turning:
Goldman Sachs has received a subpoena from the office of the Manhattan District Attorney, which is investigating the investment bank’s role in the financial crisis, according to people with knowledge of the matter. Goldman Said to Get Subpoena Over Its Role in Crisis
The good news is that Cyrus Vance Jr. stepped into the prosecutorial vacuum and issued subpoenas. The bad news is the thunderous silence from the Justice Department and the New York state attorney general.
I attended a recent talk by Rabbi Adin Steinsaltz, a renowned biblical scholar. He noted that the genius of the Torah as a legal instrument is that judges were admonished to favor neither the rich nor the poor. America outside of Wall Street and Washington believes that the rich, “too big to fail” banks have been given a permanent get out of jail card. We could restore belief in equal justice under the law if we vigorously prosecuted and convicted rich wrongdoers the way we currently pursue poor ones.
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