“Why does nobody ever go to jail?” asked Mandy Grunwald, a messaging guru for the Hillary Clinton campaign, in an email in 2015 to eight other top campaign officials.
She was responding to a settlement announced by the Department of Justice with several large banks that had manipulated foreign exchange markets. Though the banks pled guilty as institutions, no individual banker was punished.
Grunwald’s email thread petered out with no response to her question, which is not surprising.
A few months later, Clinton campaign manager John Podesta was having an email discussion about why Clinton’s platform on banking reform didn’t really resonate with voters. “People don’t get it,” he said. “It’s not like sending people to jail which people really love.”
There are many reasons why Hillary Clinton lost the election last November, but one significant factor was that Clinton suffered from a perceived closeness with Wall Street — a closeness that consistently worried the campaign.
Clinton Democrats were, of course, not in charge during the aftermath of the financial crisis; the Obama administration was. And what happened to Clinton was not isolated to her, or even to 2016. The reluctance to take on Wall Street has been a hallmark of the modern Democratic Party — and has served as an electoral headwind up and down the ticket.
Democrats are currently debating how to structure themselves as an opposition party. And Tom Perez, a leading candidate for the Democratic National Committee chairmanship, has an established record of not taking on the banks; both at the Department of Justice and the Department of Labor.
Soldier Suicides and Foreclosures
In February 2010, a JP Morgan vice president, Stephanie Mudick, told the House Committee on Veterans’ Affairs on behalf of her bank, “I would like to express to the men and women serving our country, and to the members of this committee, Chase’s deepest regret over the mistakes we made in applying these protections.”
Mudick confirmed allegations that J.P. Morgan had foreclosed on active duty soldiers in violation of the Servicemembers Civil Relief Act (SCRA). The SCRA was first enacted during the Civil War and is designed to cap interest rates and prevent foreclosures for active duty troops. Violations can potentially be charged as misdemeanors, punishable by up to a year in prison.
Both Democrats and Republicans at the hearing lambasted Mudick, with Rep. Bob Filner suggesting the bank was responsible for “homicide” against soldiers who killed themselves after being foreclosed on. “Shouldn’t someone go to jail for that?” he asked. “And who should? Who is responsible? Are you, as the executive VP who was given us from the bank to answer for this stuff, should you go to jail?”
Mudick pledged to find out who at her bank was responsible and would be held accountable. But her performance didn’t impress attorneys defending soldiers against illegal foreclosures. Richard Harpootlian, a foreclosure defense attorney, echoed Filner at the hearing. “Put somebody in jail, then banks will stop doing it,” he said.
The SCRA is rarely used for jail time, and other parts of the government were more well-suited for pursuing criminal charges against bank executives. Yet the foreclosure crisis, with the ensuing mortgage documentation fraud, was also unprecedented. The Office of the Comptroller of the Currency documented 1,622 SCRA violations, including over 1,000 completed foreclosures of active duty troops.
No one ever did get convicted of a crime. And the person who was running the division of the Department of Justice with jurisdiction over the SCRA at the time was Tom Perez. From 2009 to 2013, he was assistant attorney general for civil rights.
Perez himself continually touted his division’s work on the SCRA. But in 2011, Congressmen Brad Miller and Walter Jones wrote to the Justice Department about these violations, noting: “The continued failure to pursue criminal charges in the face of flagrant violations of the criminal law is destroying Americans’ faith in their government and democracy.”
The Justice Department later reached a settlement with banks over these violations, including J.P. Morgan, offering monetary payouts to soldiers. But no individuals were held accountable.
In 2013, Rep. Miller accused bank regulators and the Justice Department of refusing to investigate, saying “They consciously decided not to continue an investigation because what was revealed was so damning.”
One banker who profited through these illegal foreclosures was Steven Mnuchin, whose bank OneWest was caught violating the law. OneWest had 54 documented SCRA violations. Mnuchin is now Donald Trump’s treasury secretary after winning confirmation despite nearly united Senate Democratic opposition based on his profiteering from the foreclosure crisis
Waivers at Labor
Perez left Justice to become secretary of labor in 2013. The Department of Labor has significant bank regulatory authority involving pension funds. Financial institutions found guilty of certain crimes, for instance, are barred from managing pensions unless granted waivers by the Department of Labor.
In 2015, Democratic Rep. Maxine Waters asked Perez to hold off such a waiver for large banks that had pled guilty to conspiring to rig the foreign-exchange markets. But UBS, Barclays, J.P. Morgan, Royal Bank of Scotland Group, and Citigroup received waivers, letting them go right back to managing pension money.
Perez’s track record at the Department of Labor was generally respected by unions, a bulwark of the Democratic Party, although union density overall dropped during the Obama administration. For example, Perez implemented a conflict of interest rule to stop financial advisors from cheating people. He adopted a regulation to help more people earn overtime time. He advocated for a rule for home care workers to aid their bargaining leverage.
But all of that is likely to be overturned, because Democrats lost up and down the ballot in 2016, handicapped in part by their aversion to take on the banks.
Perez’s main competitor for the DNC chair is Rep. Keith Ellison, who serves on the Financial Services Committee. Ellison signed a letter strongly criticizing Perez’s decision to grant the waivers to the big banks that were guilty of market manipulation. He co-sponsored a bill to break up the banks. And in September 2016, after Wells Fargo was found to have committed fraud in opening up millions of false accounts for customers who did not want them, he proposed that bank workers should unionize to fight fraud.
Races for party positions like the Democratic National Committee chairmanship tends not to hinge on issues like financial services policy. The DNC contest is a race where insiders who care about party building, consultants, messaging, and the guts of the Democratic apparatus try to make their voices heard. In this case, however, the clearest difference between Perez’s and Ellison’s approaches may come down to how they approach financial power.
Both Perez and Ellison support pro-labor policies. But Ellison shows that he also wants to oppose concentrated financial power. Perez represents the finance-friendly status quo that has relegated Democrats to minority status.