Column: Credit Suisse gets off easy

Published 12:00 am Sunday, June 1, 2014

Back 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.” Or so said the Justice Department.

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 such as Countrywide or New Century or Lehman Bros. 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 announced last 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 U.S. 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,” Holder said 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 United States 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.

It’s no secret why the Justice Department is so chary about indicting a corporation: In 2002, in the wake of the Enron scandal, the government indicted Enron’s accounting firm, Arthur Andersen. The indictment essentially put the firm out of business, costing 85,000 people their jobs — most of whom, of course, had nothing to do with Enron’s accounting shenanigans. By the time the Supreme Court overturned the guilty verdict three years later, it was too late: Andersen was finished.

Since then, the Justice Department has bent over backward to avoid indicting financial firms. That would be fine if it were willing to go after top executives, but it won’t do that, either. Time after time, it has couched its charges in antiseptic language that makes it sound as if the corporation committed misdeeds on its own. Rarely are people named. And for the most part, it has been satisfied with financial settlements, which are water off the back of most of these companies.

Fourteen months ago, testifying before the Senate Judiciary Committee, Holder said that “the size of some of these institutions becomes so large that it does become difficult for us to prosecute them” without endangering the economy. This became known as “too big to jail.”

In attempting to use the Credit Suisse guilty plea as proof that it is tough on financial crime, Justice has done just the opposite: It has shown, yet again, that big financial firms are too big to jail.

— Joe Nocera is a columnist for The New York Times.

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