‘Not a single financial executive has gone to jail, and that’s wrong,” bellowed Charles Ferguson at Sunday night’s Academy Awards. Is it really?
Consider the source: “Inside Job,” Ferguson’s Oscar-winning documentary on the financial collapse of 2008, proudly features Eliot Spitzer — who, as New York’s attorney general, went on a tear against the big brokerages and their executives over various alleged crimes. In the film, Spitzer discusses how he uncovered various misdeeds, and claims the feds could have used their investigative powers to bring the bad guys to justice before it all blew up.
But why didn’t Spitzer do it? He had even more expansive powers than the Justice Department or the Securities and Exchange Commission. New York’s Martin Act gives the state AG a lower threshold than the feds to charge either firms or individuals with fraud.
Yet Spitzer’s record was middling at best: He brought some good cases, but all the ones against the big banks were civil, not criminal — and he ultimately settled for headlines and a modest fine.
Some of his targets, such as Sandy Weill, the former CEO of Citigroup, were never charged with a crime or even a misdemeanor. Others, like former New York Stock Exchange Chairman Dick Grasso, ultimately beat back charges in court. And former AIG CEO Hank Greenberg settled with the SEC in a manner that made the shock value of Spitzer’s initial accusations appear wildly overstated.
In fact, for all his bluster and legal might, Spitzer didn’t put one Wall Street miscreant at a major firm in jail. The one time he actually tried, he lost in court.
The point is, what looks like a crime — at least as presented by a publicity-hungry AG or an agenda-driven filmmaker — often isn’t one.
Most of what went on in the buildup to the 2008 financial crisis wasn’t criminal fraud as much as it was a collective bout of greed and stupidity — aided and abetted by years of government rescues that gave big-firm CEOs every reason to believe there was no real downside risk.
Take Dick Fuld, the CEO at Lehman Bros. during the run-up to the firm’s notorious demise in September 2008, which triggered the broader collapse.
In the months before Lehman’s death, Fuld and other top executives openly disputed claims that the firm was a house of cards, filled with too many risky bonds tied to the depressed real-estate market. In these tumultuous days, the firm used at least one accounting gimmick to paper over its faltering finances.
Fuld portrayed Lehman as a firm that was fighting successfully to survive. With those words of encouragement, some investors lent Lehman money, others bought its stock or decided not to sell, thinking the situation was going to get better.
Given what later happened, that sounds like an open-and-shut case of securities fraud, with greedy Wall Streeters caught lying to public investors, right? Well, no.
I’m told the SEC is under intense pressure to bring a case against someone at Lehman, whether it’s Fuld or another top exec — and having a tough time coming up with conclusive evidence they knew they were lying about what they were saying about Lehman’s chances. And if they can’t prove that, they don’t have a fraud case.
The problem’s obvious to anyone who’s studied the last 30 years of the government’s repeated assistance of Wall Street risk-taking. In 1994 and again in ’98, Lehman faced vast losses and possible death because it was holding toxic debt — and the feds stepped in and bailed out its losses with cheap money and/or a directly engineered bailout.
As for the accounting gimmick Lehman used just before its ’08 implosion, it was approved by the firm’s auditor, Ernst & Young — which OK’d it because other firms had used similar techniques to mitigate losses, without a peep from regulators.
In other words, Fuld really did think Lehman would survive — because in the past, with the help of the feds, it had.
OK, maybe somebody did cross a legal line. For all I know, the SEC or the Justice Department has found the smoking-gun e-mail that proves the guilt of some Lehman exec.
But I hear that Fuld and other ex-Lehman bigs are acting like they don’t have a care in the world. Fuld, in fact, is revving up his financial-advisory business. Maybe it’s all an act — or maybe not.
And if Fuld “had” to know better, then what about all those politicians and bureaucrats who encouraged the creation of mortgage-backed securities, which were at the heart of the collapse? What about the Fannie Mae and Freddie Mac execs who let banks hand out loans to almost everyone? What about the Federal Reserve and Treasury officials, under Republicans and Democrats, who stepped in and mitigated Wall Street losses time after time, creating an environment where CEOs like Fuld believed there was no consequence to risk-taking?
If it’s a crime to help trigger a disaster by getting things wrong, a lot of people belong in jail.
Charles Gasparino is a Fox Business Network senior correspondent.