(updated below - Update II)
PBS' Frontline program on Tuesday night broadcast a
new one-hour report on one of the greatest and most shameful failings of the
Obama administration:
the lack of even a single arrest or prosecution of any senior Wall
Street banker for the systemic fraud that precipitated the 2008
financial crisis:
a crisis from which millions of people around the world are still
suffering. What this program particularly demonstrated was that the
Obama justice department, in particular the Chief of its Criminal
Division, Lanny Breuer, never even tried to hold the high-level
criminals accountable.
What Obama justice officials did instead is exactly what they did in
the face of high-level Bush era crimes of torture and warrantless
eavesdropping: namely, acted to protect the most powerful factions in
the society in the face of overwhelming evidence of serious criminality.
Indeed, financial elites were not only vested with immunity for their
fraud, but
thrived as a result of it, even as ordinary Americans
continue to suffer the effects of that crisis.
Worst of all, Obama justice officials both shielded and feted these Wall Street oligarchs (who, just by the way,
overwhelmingly supported Obama's 2008 presidential campaign)
as they simultaneously prosecuted and imprisoned powerless Americans
for far more trivial transgressions. As Harvard law professor Larry
Lessig
put it
two weeks ago when expressing anger over the DOJ's persecution of Aaron
Swartz: "we live in a world where the architects of the financial
crisis regularly dine at the White House." (Indeed, as "The
Untouchables" put it: while no senior Wall Street executives have been
prosecuted, "many small mortgage brokers, loan appraisers and even home
buyers" have been).
As I documented at length in my 2011 book on America's two-tiered
justice system, With Liberty and Justice for Some, the evidence that
felonies were committed by Wall Street is overwhelming. That evidence
directly negates the primary excuse by Breuer (previously
offered by Obama himself) that the bad acts of Wall Street were not criminal.
Numerous documents prove that executives at leading banks, credit
agencies, and mortgage brokers were falsely touting assets as sound that
knew were junk: the very definition of fraud. As former Wall Street
analyst Yves Smith wrote in her book ECONned: "What went on at Lehman
and AIG, as well as the chicanery in the CDO [collateralized debt
obligation] business, by any sensible standard is criminal." Even
lifelong Wall Street defender Alan Greenspan, the former Federal Reserve
Chair,
said in Congressional testimony that "a lot of that stuff was just plain fraud."
A
New York Times editorial in August
explained that the DOJ's excuse for failing to prosecute Wall Street
executives - that it was too hard to obtain convictions - "has always
defied common sense - and all the more so now that a fuller picture is
emerging of the range of banks' reckless and lawless activities,
including interest-rate rigging, money laundering, securities fraud and
excessive speculation." The Frontline program interviewed former
prosecutors, Senate staffers and regulators who unequivocally said the
same: it is inconceivable that the DOJ could not have successfully
prosecuted at least some high-level Wall Street executives - had they
tried.
What's most remarkable about all of this is not even Wall Street had
the audacity to expect the generosity of largesse they ended up
receiving. "The Untouchables" begins by recounting the massive financial
devastation the 2008 crisis wrought - "the economy was in ruins and
bankers were being blamed" - and recounts:
"In 2009, Wall Street bankers were on the defensive, worried they could be held criminally liable for fraud. With a new administration, bankers and their attorneys expected investigations and at least some prosecutions."
Indeed, the show recalls that both in Washington and the country
generally, "there was broad support for prosecuting Wall Street."
Nonetheless: "four years later, there have been no arrests of any senior
Wall Street executives."
In response to the DOJ's excuse-making that these criminal cases are
too hard to win, numerous experts - Senators, top Hill staffers, former
DOJ prosecutors - emphasized the key point: Obama officials never even
tried. One of the heroes of "The Untouchables", former Democratic Sen.
Ted Kaufman, worked tirelessly to provide the DOJ with all the funds it
needed to ensure probing criminal investigations and even to pressure
and compel them to do so. Yet when he and his staff would meet with
Breuer and other top DOJ officials, they would proudly tout the small
mortgage brokers they were pursuing, in response to which Kafuman and
his staff said: "No. Don't show me small-time mortgage guys in
California. This is totally about what went on in Wall Street. . . . We
are talking about investigating senior level Wall Street executives,
even at the Board level". (The same Lanny Breuer was
recently seen announcing
that the banking giant HSBC would face no criminal prosecution for its
money laundering of funds for designated terrorist groups and drug
networks on the ground that the bank was too big to risk prosecuting).
As Kaufman and his staffers make clear, Obama officials were plainly
uninterested in pursuing criminal accountability for Wall Street. One
former staffer to both Biden and Kaufman, Jeff Connaughton,
wrote a book
in 2011 - "The Payoff: Why Wall Street Always Wins" - devoted to
alerting the nation that the Obama DOJ refused even to try to find
criminal culprits on Wall Street. In the book, this
career-Democratic-aide-turned-whistleblower details how the levers of
Washington power are used to shield and protect high-level Wall Street
executives, many of whom have close ties to the leaders of both parties
and themselves are
former high-level government officials.
This is a system, he makes clear, that is constituted to ensure that
those executives never face real accountability even for their most
egregious and destructive crimes.
The reason there have been no efforts made to criminally investigate
is obvious. Former banking regulator and current securities Professor
Bill Black
told Bill Moyers in 2009
that "Timothy Geithner, the Secretary of the Treasury, and others in
the administration, with the banks, are engaged in a cover up to keep us
from knowing what went wrong." In the documentary "Inside Job", the
economist Nouriel Roubini, when asked why there have been no such
investigations, replied: "Because then you'd find the culprits."
Underlying all of that is what the Senate's second-highest ranking
Democrat, Dick Durbin,
admitted in 2009: the banks "frankly own the place".
The harms from this refusal to hold Wall Street accountable are the
same generated by the general legal immunity the US political culture
has vested in its elites. Just as was true for the protection of
torturers and illegal eavesdroppers, it ensures that there are no
incentives to avoid similar crimes in the future. It is an injustice in
its own right to allow those with power and wealth to commit destructive
crimes with impunity. It subverts democracy and warps the justice
system when a person's treatment under the law is determined not by
their acts but by their power, position, and prestige. And it exposes
just how shameful is the American penal state by contrasting the
immunity given to the nation's most powerful with the merciless and
brutal punishment meted out to its most marginalized.
The real mystery from all of this is that it has not led to greater
social unrest. To some extent, both the early version of the Tea Party
and the Occupy movements were spurred by the government's protection of
Wall Street at the expense of everyone else. Still, Americans continue
to be plagued by massive unemployment, foreclosures, the threat of
austerity and economic insecurity while those who caused those problems
have more power and profit than ever. And they watch millions of their
fellow citizens be put in cages for relatively minor offenses while the
most powerful are free to commit far more serious crimes with complete
impunity. Far less injustice than this has spurred serious unrest in
other societies.
[
The one-hour Frontline program can be viewed in its entirety here.]
New feature
We're going to institute a new feature tomorrow (Thursday), beginning
at 10:00 am EST: a live question-and-answer session between myself and
readers regarding columns I've written over the last month. At that time
tomorrow morning, a column will be posted here in which readers can
leave questions, and from 2:00 pm to 4:00 pm EST, I'll be here live to
answer selected ones. The exchange will then be posted in a form similar
to
this one
previously done by the Guardian with Clay Shirky. The Guardian has
several really good ideas for maximizing the involvement of and
interaction with readers in the journalism that it does - a goal that
has been important to me since I first began writing about politics
online - and this is the first of the features we'll try in pursuit of
that end. I hope everyone inclined to do so is able to participate.
UPDATE
The New York Times' Dealbook section
hosted a Q-and-A today with Martin Smith, the producer of "The Untouchables". Here is one quite revealing exchange from that (via
@QuietAmerican55):
The Obama administration is not accustomed to actual adversarial
journalism that sheds light on their malfeasance. They do not like it.
And when they see it, they respond about as petulantly as possible:
we will never cooperate with you again!
It's not Frontline's fault that the Obama administration actively
shielded Wall Street from all forms of criminal accountability. If, as
seems to be the case, that fact embarrasses them, they should blame
those responsible (themselves), not those reporting it.
UPDATE II
The Washington Post is
reporting this afternoon
that Breuer is planning to leave the DOJ. Don't worry: he'll be fine.
Given how valiantly he protected Wall Street and HSBC, one need not be
Nate Silver to predict with a fair degree of confidence that he'll land
on his feet. When public officials use their government power to serve
the interests of private sector elites, they are often
lavishly rewarded by the faction they served upon leaving government.
That's one of the key dynamics greasing the sleazy revolving door of
Washington. Beyond that, Breuer's contacts in and influence with the DOJ
will be in high demand by corporations, banks and other assorted
oligarchs seeking to exercise the legal immunity which US political
culture has bestowed on them.