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James S. Henry commenting on PBS documentary “The Untouchables”: If one of these institutions was indicted and made an example of, it would have a profound affect on the whole industry – but Obama raises money on Wall St.

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Baltimore.

Lanny Breuer, who’s head of the Criminal Justice Division at the Justice Department, has announced he’s stepping down. According to The Washington Post, quote, Breuer is widely credited with aggressively going after white-collar crime in the aftermath of the crisis. Well, a recent PBS documentary suggests a somewhat different description of how Breuer has done on this front. Here’s a clip towards the end of the film.


MARTIN SMITH, CORRESPONDENT, PBS FRONTLINE: You gave a speech before the New York Bar Association, and in that speech you made a reference to losing sleep at night worrying about what a lawsuit might result in at a large financial institution. Is that really the job of a prosecutor, to worry about anything other than simply pursuing justice?

LANNY BREUER, ASSIST. ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE: Well, I think I am pursuing justice, because if I bring a case against institution A, and as a result of bring that case there’s some huge economic effect, if it creates a ripple effect so that suddenly counterparties and other financial institutions or other companies that had nothing to do with this are affected badly, it’s a factor we need to know and understand.

TED KAUFMAN, FMR. U.S. SENATOR (D-DE): That was very disturbing to me, very disturbing. That was never raised at any time during any of our discussions. That is not the job of a prosecutor, to worry about the health of the banks, in my opinion. The job of prosecutor is to prosecute criminal behavior. It’s not to lie awake at night and kind of decide the future of the banks.

NARRATOR (VOICEOVER): So far in civil proceedings the government has levied several billion dollars in penalties for misconduct in a crisis that’s cost investors and homeowners many hundreds of billions of dollars. But to date not one senior Wall Street executive has been held criminally liable by the Department of Justice for activities related to the financial crisis.


JAY: Now joining us to talk about the record of the Justice Department in relation to this type of crime or fraud and prosecuting or lack of it is James Henry. James is a leading economist, attorney, investigative journalist who’s written extensively about global issues. He served as the chief economist at the international consultancy firm McKinsey & Company. As an investigative journalist, his work has appeared in numerous publications like Forbes, Nation, and The New York Times.

Thanks for joining us again, James.


JAY: So talk a bit about this, this conundrum, you could say, that Brewer says he was faced with, more or less that if he goes after executives from the big banks, even though he kind of acknowledges it was probably fraud and the FBI agent or FBI official in the film says, you know, if he thinks it was not unintentional the way banks did things—a pretty understated way to say it. But Breuer says he couldn’t have done it, because the systemic implications were just too big—not his words, but that’s what he’s saying.

HENRY: Yeah. I mean, that’s what he made a statement in September of last year in a speech, saying that he was kind of up nights worrying about what would happen to these massive institutions if he indicted some of these senior executives criminally. I think a lot of outsiders would say that’s nonsense, that, you know, you could clearly just put some of the executives in jail—and I think that’s what they were actually expecting—without jeopardizing the institutions themselves.

Maybe some of these institutions deserve to be corporately indicted and made examples of, and maybe the entire—you know, kind of the salutary effect on the banking system would be great enough to justify putting one of them out of its misery because of the effect it would have on all the others.

So I think there’s at least a strong argument that this Justice Department, when it came to large financial institutions, was asleep at the switch. And we have no indictments or prosecutions of any individual senior Wall Street executive in the last four years.

JAY: What for you is the sort of two or three most outstanding examples of fraud that should have been prosecuted?

HENRY: Well, we now see a lot of private lawsuits going on from investors in some of the securitized mortgage packages and people who bought things like CDOs from Goldman Sachs at the same time Goldman Sachs was shorting these securities themselves. So these private suits and the law firms that have been prosecuting them have managed to turn up, you know, reams of evidence of real fraud. And it’s all emerging in the course of these private law suits which are about to unfold.

It’s ironic, given all that evidence, that the Justice Department, with its thousands of attorneys, and, you know, the SEC be able to help out as well, couldn’t come to a similar kind of finding, couldn’t turn up the whistleblowers that even in the PBS documentary, you know, investigative journalists were able to surface in a matter of weeks. And the New York State attorney general’s office has piggybacked already on some of these private lawsuits and has—pursuing its own investigations of some of the largest firms on Wall Street, including Goldman Sachs, JPMorgan, Citibank, Bank of America.

These major institutions have basically walked away from justice when it comes to the federal government, and it’s been left to the private lawsuits and to the SEC, to the state of New York, to actually piggyback on these private lawsuits and make these cases. It begs the question of, you know, whether or Lenny Breuer and his team was really doing their job when it came to these major financial institutions. They seem to have a soft place in their hearts.

And that also extends to other kinds of corporate crime, for example the settlements that they engaged in with HSBC and the money laundering, the tap on the wrist that UBS got for being at the heart of the Libor scandal. It’s not just the bank crises; it’s also these other kind of shenanigans. So, many of us have been expecting the Justice Department to act here, but they haven’t.

JAY: So let’s talk a little bit about the bigger picture here. The power of finance seems to be such, the biggest financial institutions, their hold over Congress, their hold over the Obama administration, their hold over the Justice Department, it seems to be so deep and profound that they can’t be regulated, they can’t be prosecuted. Where does this lead? Where does this go?

HENRY: I think you can’t even get them out of the Treasury Department. I mean, Obama’s pick for the successor to Tim Geithner this month is taking office at the Treasury, the secretary of Treasury, is Jacob Lew, who is the guy who was running Citibank’s global private banking department in 2006, you know, and then moved on to the White House chief of staff. But here we have, right at the core of power, another senior Wall Street executive.

Now, I think Ted Kaufman, who was a senator from Delaware in 2010, then retired, and was a big proponent of prosecutions, basically said that, you know, Wall Street calls the shots in Washington. Dick Durbin said they own this town. And I think that’s not only due to financial influence and contributions; it’s also due to the fact that there’s this revolving-door policy of basically gifting the Treasury Department to former executives from the major banks.

You know, we have Bill Daley from JPMorgan, vice chairman of JPMorgan, serving as Obama’s chief of staff. It’s hard to imagine those folks being tough on the institutions that have provided their bread and butter. And so the track record is entirely consistent with this evidence that we see from the Justice Department’s failure to prosecute any of these major institutions.

JAY: I mean, I don’t think it’s anything new with the Obama administration, but Barack Obama the candidate was heavily financed by Wall Street. Everyone was kind of surprised in the primaries that he was actually raising more money than Hillary Clinton was on Wall Street.

HENRY: You know, Wall Street’s contributions from 1990 to 2008 was an average of $2,500 per day per congressman. You know, it’s just hard to compete with that kind of immediate financial clout.

And I think there’s also a kind of insidious influence on just the ideology. You know, we’ve had presidential candidate after presidential candidate basically arguing for hands off when it comes to financial regulation—don’t really have a good explanation from those folks about what went wrong in 2008. I guess it was, you know, just bad weather. But, you know, to this day, we really haven’t had a fundamental, deep examination of the role of the private sector financial institutions in the policies that led to that very, very costly collapse that we’re still paying for.

JAY: Isn’t some of this kind of so inherent in the way the global capitalist system works right now—and it’s not new, but it’s reached new heights, meaning that the size of the global economy’s just so big, there is so much capital moving back and forth, the enterprises, global companies, are so big and operate on such a scale that you need banks that can operate in massive ways? On the other hand, when they get so big, you can’t regulate them—they’re essentially above the law. I mean, it’s a conundrum, is it not?

HENRY: If one of these institutions were indicted corporately and made an example of and exposed to the world for their behavior, you’d have a very, very profound effect on the behavior of the whole industry, because they all—you know, they say that bankers could exchange strategies and no one would care, ’cause they all basically pursue the same strategies.

JAY: But that’s sort of my point, like, if one of them was indicted, if some modest legislation was passed. But my point is you can’t even pass the modest reforms. You can’t even indict one institution. You can’t—the power finance has over the politics, you can’t even get, you know, simple, modest things changed in terms [crosstalk]

HENRY: Yeah, I think that’s the dilemma, that this has been an issue where it’s very difficult to mobilize masses of Americans to understand. You know, it’s not like on the gun control issue we seem to be making some progress now because people are outraged at a relatively simple situation and they can understand what they need to do about it; in the case of the banking institutions, everyone believes it’s so terribly complicated that we have to defer to, you know, the Illuminati. So that’s kind of the problem.

And then this is an ideal case for presidential leadership. This is exactly where the president should be focusing his attention, because he does have the intellectual horsepower and support in his own team to get this kind of legislation done.

JAY: So far what we’ve seen, he appoints and nominates these people, not prosecute.

HENRY: I think his basic interest is not in economics. It’s in more political issues. And he’s kind of put the Treasury on autopilot. He’s trusted to Tim Geithner to run the Treasury. And, you know, he’s the technocrat who’s been not only head of the New York Fed, but also was a senior official at the IMF. So it’s not an area that Obama really wants to worry about in addition to everything else in foreign policy and, you know, the complicated domestic issues that he faces anyway.

So he wanted, I think, to assume—part of his stance here has been to say, okay, let Treasury run the economy. And that’s been a mistake.

JAY: Yeah. Well, it’s been a mistake for most Americans. It may have been the right call for some of the mavens of Wall Street, but it wasn’t a very good call for anybody else.

HENRY: You know, as many of his, you know, people on his political team have been saying, well, this will help us raise money from Wall Street. And indeed it has. I mean, he basically raised a lot more than people expected, given that Romney was in the race, from the very people that have made this economic crisis.

JAY: Right. Thanks for joining us, James.

HENRY: You’re quite welcome.

JAY: And thank you for joining us on The Real News Network.


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James S. Henry is an investigative economist and lawyer, a Global Justice Fellow at Yale University, and a Senior Advisor at the Tax Justice Network. Previously, James served as Chief Economist at the international consultancy firm McKinsey & Co. As an investigative journalist his work has appeared in numerous publications like Forbes, The Nation and The New York Times.