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Eric Holder Puts Corporate Dope on the Table

Yesterday, Attorney General Eric Holder announced the latest in a series of massive, multi-billion-dollar settlements extracted from Wall Street’s largest banks as punishment for their role in the subprime mortgage bubble and bust that played a role in collapsing the economy in 2008. Charlotte-based Bank of America, paying for the sins of its own lenders as well as those of investment firm Merrill Lynch and subprime specialist Countrywide (both of which it acquired during the 2008 crisis), will be paying a record $16.65 billion settlement, including an also-record $9.65 billion in cash. This follows last month’s Citigroup settlement of $7 billion (including a then-record $4 billion in cash), and last fall’s $13 billion JPMorgan Chase settlement.

The numbers are truly eye-popping, and the repeated use of “record” has a nice, satisfying ring to it. But, just before the latest BoA settlement was announced, William Cohen denounced the entire exercise as “fine theater with the obvious caveat that nothing even remotely close to justice had been served.” Far from being impressed by the sums involved, Cohen sees the settlements as hush money, paid by Wall Street executives eager to keep the details of their worst behaviors out of the public eye.

The American people are deprived of knowing precisely how bad things got inside these banks in the years leading up to the financial crisis, and the banks, knowing they will be saved the humiliation caused by the public airing of a trove of emails and documents, will no doubt soon be repeating their callous and indifferent behavior.

Instead of the truth, we get from the Justice Department a heavily negotiated and sanitized “statement of facts” about what supposedly went wrong. In the case of JPMorgan, the statement of facts was 21 pages but contained little of substance beyond the fact that an unidentified whistle-blower at the bank tried to alert her superiors to her belief that shoddy mortgages were being packaged and sold as securities. Her warnings went unheeded and the mortgages were packaged and sold all the same.

JPMorgan’s CEO and famed finance guru Jamie Dimon reportedly made a personal call in the lead-up to a federal lawsuit being filed in order to bump his settlement offer by, ultimately, $10 billion dollars, hoping “the meeting would avert the lawsuit, which threatened to spotlight the bank’s questionable mortgage practices before the financial crisis.” The $13 billion was, the Times reported, half of one year’s annual profits for the bank.

Indeed, the Times followed up yesterday to show how even Bank of America was getting off lighter than the numbers might make it seem at first blush. “At issue is how much of the cost of the $7 billion in ‘soft dollars,’ or help for borrowers, the bank will bear under the settlement,” the Times said, as writing down principal on loans may have already been factored into BoA’s plans, or they may not even own the loans anymore, having sold them off in the infamous mortgage-backed securities. The investors who bought the bad bonds “note that the government promotes the settlements as punishment for dumping faulty loans on investors, but it devises deals that saddle investors with some of the costs.”

And in a rather perverse function of intersecting laws,

The actual pain to the bank could also be significantly reduced by tax deductions. Tax analysts, for instance, estimate that Bank of America could derive $1.6 billion of tax savings on the $4.63 billion of payments to the states and some federal agencies under the settlement. Shares of Bank of America jumped 4 percent on Thursday, suggesting investors believe that the bank could take the settlement in stride.

Moreover, the Justice Department and states began to get creative in their negotiations with BoA,

In New York State, for example, Bank of America has agreed to donate hundreds of foreclosed properties to land banks and community groups, while chipping in money to renovate each property.

Such measures are also popular with politicians. Bank of America agreed to finance affordable rental housing, a top priority for city and state leaders, particularly Democrats, like Mayor Bill de Blasio of New York, who called the deal ‘historic.’

The Attorney General is apparently following what Cohen calls “the Holder Doctrine,” after a 1999 memo composed by Holder as deputy attorney general, which calls for large financial settlements in lieu of criminal prosecutions. Yet while the big numbers may make a splash, there are apparently enough skeletons in the big banks’ closets for them to consider this kind of money a wise investment. And requiring Bank of America to, among other things, offer hundreds of millions of dollars in new mortgages to those who can’t afford them as punishment for irresponsible subprime lending has a certain irony to it that can’t be escaped.

In fact, the entire effort bears an unmistakable resemblance to one of the president’s favorite television shows, HBO’s “The Wire.” In it, serious narcotics and murder investigations are rolled up in order to conduct city-wide drug raids that send a television-friendly message by putting “dope on the table.” One wonders how big a table it would take to proudly display $7 billion, or $13 billion, or $16.65 billion. Mr. Holder might be in the market.