Will Breuer’s Departure Finally Expose Banksters to Criminal Liability?

breuerPresident Obama’s choice of former prosecutor Mary Jo White to head the Securities and Exchange Commission is, despite her more recent work defending white-collar miscreants, being touted as a sign that the federal government will get tougher on corporate misconduct. Yet perhaps the more important issue, given that the SEC can bring only civil cases, is who will be chosen to replace Lanny Breuer as head of the Justice Department’s Criminal Division.

Breuer is planning to leave his post at the beginning of March. The announcement of his departure comes right after a PBS Frontline documentary called “The Untouchables” made him the symbol of the Obama Administration’s failure to bring criminal prosecutions of executives at the big banks responsible for the reckless practices that led to the financial meltdown of 2008 and the resulting economic slump from which the country is still struggling to recover.

Frontline’s Martin Smith put Breuer on the spot, confronting him with claims by sources from within the Criminal Division that when it came to Wall Street there were “no subpoenas, no document reviews, no wiretaps” and that at indictment approval meetings “there was no case ever mentioned that was even close to indicting Wall Street for financial crimes.” Smith also criticized Breuer for not working more closely with whistleblowers.

Near the end of the program, Smith asked Breuer about a speech he had given before the New York Bar Association in which he seemed to be saying that concern over the financial impact on individual banks influenced his decision not to pursue criminal prosecutions—implying that they are too big to prosecute. Amazingly, Breuer stood by that position.

Throughout the interview, Breuer insisted that he was pursuing justice against the banks, pointing several times to the civil cases that DOJ has filed. There have indeed been quite a few such cases brought by DOJ, the SEC and others. In the past few issues of this blog I’ve recounted the ones brought against Citigroup, Bank of America and JPMorgan.

I don’t want to leave out Wells Fargo, which is the smallest of the four giant institutions that now dominate U.S. commercial banking but has a record that is no less checkered.

In the same way that Bank of America assumed a slew of legal problems from its acquisition of Merrill Lynch and Countrywide Financial, and JPMorgan Chase did the same with regard to Bear Stearns and Washington Mutual, Wells Fargo has had to deal with numerous cases relating to the past sins of Wachovia, which it took over in 2008.

These have included: a $4.5 million fine imposed by industry regulator FINRA for violations of mutual fund sales rules; a $40 million settlement of SEC charges that the Evergreen Investment Management business Wells Fargo inherited from Wachovia misled investors about mortgage-backed securities; a $160 million settlement of federal charges relating to money laundering by customers; a $2 billion settlement with the California attorney general of charges relating to foreclosure abuses; an $11 million settlement with the SEC of charges that it cheated the Zuni Indian Tribe in the sale of collateralized debt obligations; and a $148 million settlement of federal and state municipal securities bid rigging charges.

Wells Fargo also had problems of its own making. In 2009 it had to agree to buy back $1.4 billion in auction-rate securities to settle allegations by the California attorney general of misleading investors. In 2011 it agreed to pay $125 million to settle a lawsuit in which a group of pension funds accused it of misrepresenting the quality of pools of mortgage-related securities. Soon after that, the Federal Reserve announced an $85 million civil penalty against Wells Fargo for steering customers with good qualifications into costly subprime mortgage loans during the housing boom. And then Wells Fargo agreed to pay at least $37 million to settle a lawsuit accusing it too of municipal bond bid rigging.

Wells Fargo was one of five large mortgage servicers that in February 2012 consented to a $25 billion settlement with the federal government and state attorneys general to resolve allegations of loan servicing and foreclosure abuses. In July 2012 the Justice Department announced that Wells Fargo would pay $175 million to settle charges that it engaged in a pattern of discrimination against African-American and Hispanic borrowers in its mortgage lending during the period from 2004 to 2009. In August 2012 Wells Fargo agreed to pay $6.5 million to settle SEC charges that it failed to fully research the risks associated with mortgage-backed securities before selling them to customers such as municipalities and non-profit organizations.

In October 2012 the U.S. Attorney for the Southern District of New York filed suit against Wells Fargo, charging the bank with engaging in a “longstanding practice of reckless underwriting and fraudulent loan certification” for thousands of loans insured by the Federal Housing Administration that ultimately defaulted. And in January 2013 Wells Fargo was one of ten major lenders that agreed to pay a total of $8.5 billion to resolve claims of foreclosure abuses.

The sad truth is that settlements such as these are regarded by Wells Fargo as simply affordable costs of doing business. The same goes for Citi, BofA and JPMorgan. And unless Breuer gets replaced with someone tougher on financial crime, these banks have nothing to worry about.

Note: This piece draws on my new Corporate Rap Sheet on Wells Fargo, which can be found here.

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