Like a lot of other Americans, Sen. Elizabeth Warren wants to know why the Department of Justice hasn’t criminally prosecuted any of the major players responsible for the 2008 financial crisis.
On Thursday, Warren released two highly provocative letters demanding some explanations. One is to DOJ Inspector General Michael Horowitz, requesting a review of how federal law enforcement managed to whiff on all 11 substantive criminal referrals submitted by the Financial Crisis Inquiry Commission (FCIC), a panel set up to examine the causes of the 2008 meltdown.
The other is to FBI Director James Comey, asking him to release all FBI investigations and deliberations related to those referrals. The FBI typically doesn’t release investigative details about cases that the DOJ chooses not to pursue, but Warren pointed out that in releasing information about presidential candidate Hillary Clinton’s use of a private email server in July, Comey had pretty much shattered that precedent and set a new one.
“You explained these actions by noting your view that ‘the American people deserve those details in a case of intense public interest,’” Warren wrote to Comey. “If Secretary Clinton’s email server was of sufficient ‘interest’ to establish a new FBI standard of transparency, then surely the criminal prosecution of those responsible for the 2008 financial crisis should be subject to the same level of transparency.”
In other words, if Comey can spend hours relating FBI decision-making about State Department emails, he can do the same for the activity that made millions jobless and homeless.
The FCIC’s criminal referrals, which were sent to the Justice Department in October 2010, have never been made public. But Warren’s staff reviewed thousands of other documents released in March by the National Archives, including hearings and testimony, witness interviews, internal deliberations, and memoranda, and found descriptions and records of them.
They detail potential violations of securities laws by 14 different financial institutions: most of America’s largest banks — Citigroup, Goldman Sachs, JPMorgan Chase, Lehman Brothers, Washington Mutual (now part of JPMorgan), and Merrill Lynch (now part of Bank of America) — along with foreign banking giants UBS, Credit Suisse, and Société Generale, auditor PricewaterhouseCoopers, credit rating agency Moody’s, insurance company AIG, and mortgage giants Fannie Mae and Freddie Mac.
The FCIC presented the DOJ with evidence that these institutions gave false representations about the loan quality inside mortgage-backed securities; misled credit ratings agencies; overstated assets and earnings in financial disclosures; failed to disclose credit downgrades, subprime exposure, and the financial health of their operations to shareholders; and suffered breakdowns in internal company controls. All of these were tied to specific violations of federal law.
And the FCIC named names, specifying nine top-level executives who should be investigated on criminal charges: CEO Daniel Mudd and CFO Stephen Swad of Fannie Mae; CEO Martin Sullivan and CFO Stephen Bensinger of AIG; CEO Stan O’Neal and CFO Jeffrey Edwards of Merrill Lynch; and CEO Chuck Prince, CFO Gary Crittenden, and Board Chairman Robert Rubin of Citigroup.
None of the 14 financial firms listed in the referrals were criminally indicted or brought to trial, Warren writes. Only five of the 14 even paid fines in civil settlements. None of the nine named individuals were criminally prosecuted, and only one — Crittenden, of Citigroup — had to pay so much as a personal fine, for a mere $100,000.
Fannie Mae’s Daniel Mudd recently reached a civil settlement with the Securities and Exchange Commission that imposed a fine of $100,000, but allowed Fannie Mae to pay it, rather than Mudd. It’s not clear whether the others were even investigated. In March, Fortune magazine reported that Rubin “was never contacted by the Justice Department in relation to the commission’s allegations.”
“Not every individual or company accused of a crime is guilty of that crime and not every DOJ referral results in a conviction,” Warren writes in her letter to the inspector general. “But the DOJ’s failure to obtain any criminal convictions of any of the individuals or corporations named in the FCIC referrals suggests that the department has failed to hold the individuals and companies most responsible for the financial crisis and the Great Recession accountable. This failure requires an explanation.”
Warren has at least one ally on the House side. Just last week, Rep. Bill Pascrell, D-N.J., asked the FBI to publicly release case files relating to crisis-era investigations.
She also has support from Phil Angelides, the chair of the Financial Crisis Inquiry Commission. “There’s a gnawing feeling among the American people that this justice system may not have worked as it should have,” Angelides said in an interview with The Intercept. “Sen. Warren is right on and Americans have a right to know.”
Angelides said “I know as little as you know” about the criminal referrals he sent to the Justice Department. He stressed that it’s not too late to prosecute on some activities, where the 10-year statute of limitations doesn’t run out until 2017. But if nothing happens, he believes that financial institutions will internalize the message that they can continue to violate the law with impunity.
“It’s like someone who robs a 7-11. If you can steal $1,000 and settle for $20 would you do it again? Probably.”
Read Warren’s letter to Horowitz, which includes information on the specific criminal referrals:
Read Warren’s letter to Comey: