By Jan D. Weir
Too Big to Fail Doesn’t And Shouldn’t Apply To Individuals
Despite that HSBC sanitized billions of dollars for Colombian and Mexican drug cartels (among others), Al-Qaeda and had violated a host of important laws including the Trading with the Enemy Act; and the Senate evidence was clear, simple and well researched.
But there would be no criminal prosecutions for anyone at the bank.
Lanny Breuer, Assistant Attorney General, came to their rescue with a civil fine of $1.9 billion on the bank — which as one analyst noted is about five weeks of income for HSBC.
Breuer invoked “too big to fail” and repeated that, if he were to charge HSBC and it was convicted, the bank would lose its license. Such a large withdrawal of banking services would damage the U.S. economy.
This I agree with. There is no need to charge a bank criminally. Taxpayers have already paid for this fraud. Why should they continue to pay with the loss of jobs and with the health of their economy.
Breuer also cited the “too big to fail” doctrine’s first corollary in defense of his sweetheart deal. It was a “compliance nightmare” for HSBC. It has so many branches and offices throughout the world, the senior management of the bank couldn’t be expected to know what was going on.
It is true that it would be highly unlikely to find an evidence chain up to the CEO. Even Al Capone was smart enough to make sure the FBI could not trace orders to wipe out victims up to him. Bank executives and CEOs ought to be able to match Capone’s cunning.
But someone knew. There could not have been so many illegal transactions in so many areas without the cooperation or willful blindness of many, many managers who were getting big commissions on the profits and whose job it was to supervise.
But if we apply Breuer’s logic to the mob, we’d have to accept that if we can’t prove the Godfather ordered the murders, we can’t charge the hit men.
If the department managers were fined to the extent or all their visible assets (we will never discover their offshore holdings) as they should be, there would be a lot fewer bankers assisting criminals with international financial transactions. Taking a greedy person’s entire net worth hurts them more than sending them to a taxpayer-funded club Fed prison for a few years.
A Clean Getaway
As an act of sincere contrition, HSBC replaced its CEO. The new CEO, Stuart Gulliver, humbly apologized and promised that the bank would not do it again. HSBC shares rose $0.06 after the announcement and Gulliver got a $3 million bonus at the end of his first year in charge.
The former CEO, the Reverend Stephen Green — yes, a banker in holy orders — was rewarded with a peerage. He is now Baron Green of Hurstpierpoint; and with a cabinet position as Minister of Trade.
As part of the sweetheart slap on the wrist deal, HSBC agreed to have a monitor oversee new management’s promises to be good boys and stop facilitating terrorist organizations. The monitor’s report was supposed to remain confidential, but in 2015, a lawyer for a class action group got it unsealed.
The monitor saw obstruction at every turn. Bloomberg News summarized it this way.
“Overall, his report says, managers from the unit battled auditors with what one compliance officer characterized as a four-part strategy — Discredit, Deny, Deflect and Delay.”
HSBC declined to comment on the monitor’s report, saying only that it was supposed to remain secret. What happened to all that evidence gathered by the Senate report? It gathers dust somewhere in a basement storage room.
The Breuer case is the perfect paradigm of the revolving door effect between Washington and Wall Street that gives bankers their immunity. He rose to stardom in the AG’s office, went to the white color defense firm of Covington and Burling and defended wealthy executives — and banks of course — against the AG’s office, then became the head of the criminal division of the AG’s office that is to prosecute these same persons, then returned to his partnership at Covington and Burling to once again represent the banks and executives to whom he had given such sweetheart deals.
In his recent book about the AG’s office, The Chickenshit Club, Pulitzer Prize winning journalist Jesse Eisenger dedicates a chapter to the Breuer tale. It tells in stark accuracy a side of the practice of law that lawyers generally only understand after a decade of experience. However, like so many books on the failure of our present government systems, it leaves the reader with the impression that it’s all so corrupt that nothing can be done.
Millions of voters became so disgusted with both of the political parties in the last election that they supported an outsider simply because he was not one of the established politicians. Despite his immature and embarrassing behavior, he can still do no wrong in their eyes because is not one of the despised establishment.
A primary cause of this loathing arose from the failure of government to prosecute banks and bankers, allowing them to continue to gorge on obscene profits while ordinary citizens lost their homes. While it’s true that once a president appoints someone to be the AG or the head of the AG criminal division, neither he nor Congress have much say in deciding whom to prosecute, voters don’t care about that distinction.
I’ve used Breuer as an example, but the fault is not his. The practice of shuffling from Wall Street to Washington to Wall Street has been so long standing that it has earned the term “revolving door.” Yet Congress has done nothing to stop it. No politician has made it part of their platform. It is in one of the categories that Ben Franklin identified: Everyone talks about it, but no one does anything about it.
Thus, it is imperative that the next president understand this cause of the alienation of voters and that there is a remedy. Our leader will need to appreciate how bankers get control of the AG’s office and put in place a policy to prevent that influence.
The solution is obvious. Never put a senior person in the AG’s office in the position of a conflict between the duty to their office and their bank account. How many of us would aggressively pursue bankers, if we knew that when we retired from the AG’s office, we would lose the opportunity of walking back into a law partnership with a million-dollar per year income?
To prevent further banker-friendly AGs, promotion should only be from within the AG or other government law departments. There are lots of very, very competent lawyers in these positions who are more loyal to their country than their pay check and would be a better fit and better qualified for these positions.
As a second safeguard, on appointment, we should require the senior members of the AG’s department to pledge that they will not take a job with a private law firm or as a lobbyist for five years after leaving the position. There are plenty of other jobs for them: teaching at a university, appointment as a judge, the diplomatic core, think tanks, and so on.
As a result of the treatment of banks like HSBC and Wachovia, the bankers got a couple of clear messages. If you’re not going to jail for washing the blood off drug money, you’re not going to jail period.
Weir is a trial lawyer, teach business law at the University of Toronto, co author of The Critical Concepts of Canadian Business Law.