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No Justice 

Despite Obama's promises of change, corporate crooks are still going unpunished for their roles in the financial collapse.

Wednesday, Oct 28 2009
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Where did our wealth go? How do we claw it back? And when are we going to punish the culprits?

When Barack Obama donned the crusader's mantle during the 2008 presidential campaign, his Web-savvy campaign team created www.keatingeconomics.com and pushed it on millions of voters. The main video showed the Ichabod Crane–like Charles Keating — the wealthy, politically connected poster child of the '80s savings-and-loan scandal — in handcuffs.

The Obama video portrayed John McCain as Keating's stooge and likened the S&L crash to the 2008 Wall Street meltdown, except that the current crisis is global and its bad guys bigger and badder. Today's corporate villains were flashed on the screen, among them AIG, Bear Stearns, Lehman Brothers, Fannie Mae, and Freddie Mac. The opening narrator was Bill Black, a Ph.D. criminologist and lead lawyer at the Office of Thrift Supervision, who helped steer the brilliant federal effort that cleaned up the S&L industry and won more than 1,000 felony convictions of senior insiders while recovering millions of their ill-gotten dollars.

Those watching the compelling attack ad (still online) had every reason to believe that Obama's approach would be just as hard-edged, and that felon-busting G-men would rout the crooks and recover our money.

This was not to be. As it stands now, there is only one federal prosecution related to the credit crash and bailout cycle, and it was begun by the Bush administration's Justice Department in June 2008.

Not that there aren't culprits. Bernie Madoff and the other accused Ponzi schemers like Allen Stanford are mere pickpockets compared with Wall Street's institutional buccaneers, who, so far, have carted off up to $12.7 trillion — almost the size of the entire gross domestic product. They've multiplied their booty with billions in subsidies and a flood of derivatives — some of them merely old, soured wine in new bottles. Today's pirates are sailing away from the light regulatory scrutiny that apparently will continue in our benighted, weakened, financially top-heavy, and bubble-addicted economy.

Black says that Obama's current efforts are doomed to fail — and, in a twist, it's for lack of trying. "There is not a single successful regulator giving him advice," he says. Obama's is a fresh face, but those of his crew aren't. Black pointedly views Treasury Secretary Timothy Geithner and Securities and Exchange Commission chairwoman Mary Schapiro as flops in the prelude to the crisis, who flacked for the financial industry's "self-regulation." Some of Obama's appointees have a history as ardent advocates for financial crooks and active foes of regulation. Because neither the Obama team nor its proposed reforms pack the requisite punch, Black predicts, "There will be far more catastrophic losses."

Though the public has been cast away, all hope for justice is not lost. Scammed consumers could get their day in court, thanks to a Supreme Court decision in June in Cuomo v. Clearing House Association. Justice Antonin Scalia broke ranks and joined the court's four most liberal judges in ruling that the federal government cannot stop states from conducting their own crackdowns on financial crooks — with more stringent laws than Washington's — against such evils as the predatory mortgage lending that sparked last fall's meltdown.

In that case, the Obama administration shed its crusader's mantle and defended the dark side in vain.


In 2008, American households lost 18 percent of their wealth — more than $11 trillion. The best way to retrieve at least a significant portion of that is through prosecution, followed by forfeiture. This is what we do when we catch money launderers and drug lords. It's what we're trying to do to Ponzi schemers like Bernie Madoff. It's retributive justice. It fills a social need as well as an economic one.

So, where is the justice in the current crisis? Why have there been so few prosecutions and only feeble attempts, at best, to claw back the money? One reason may be that, in such infamous cases as the Lehman Brothers collapse and Bank of America's absorption of Merrill Lynch, the Federal Reserve and the Treasury were intimately involved with the financial elite's dealmaking at the time. It's difficult to prosecute others for securities fraud if you condoned the deals to begin with.

And there's another, more pertinent reason: The top federal law enforcement establishment is simply not in the mood. People who expect the Department of Justice (DOJ) to take the lead will be severely disappointed — not necessarily because the task is difficult, but because the Obama administration is showing that it lacks the will.

Instead, the new administration is putting its energy into creating what it believes will be a meltdown-proof new system of elite "too-big-to-fail" banks, regulated by a beefed-up Federal Reserve.

Even The Wall Street Journal used the word "oligopoly" when it noted this summer that the Obama administration, "after saving the banks, is now planning regulatory changes that could establish an elite group of U.S. institutions with large investment-banking activities" that will be "hard to join and compete against."

Bill Black calls that elite group of megabanks, like Citigroup and Bank of America, "zombies." And they aren't done. All of the devilish tools remain in place, he says, including "the subprime loans, with securitization and the credit default swaps. And the Obama administration astonishingly wants to re-create a secondary market in subprime loans — even though it cost us more than a trillion dollars."


An administration whose claws are far from sharpened shouldn't really surprise us: Obama was Wall Street's preferred candidate in terms of campaign contributions. His SEC chairwoman, Mary Schapiro, ran the Financial Industry Regulatory Authority, the Street's self-policing private agency. Gary Gensler, chairman of the Commodity Futures Trading Commission, actually worked a decade ago to exempt credit default swaps and other derivatives from regulation.

More importantly, the nation's new top prosecutor, Attorney General Eric Holder, has a history of preferring that deviant corporations be held to no more than a "voluntary cooperation" system in which they investigate themselves privately.

About The Author

James Lieber

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