While promoting his new book, former Federal Reserve Chairman Ben Bernanke told USA Today that he believes the federal government should have prosecuted more bankers responsible for the financial crisis of 2008.
"It would have been my preference to have more investigation of individual action," he said, "since obviously everything that went wrong or was illegal was done by some individual, not by an abstract firm."
To date, only one individual has been sentenced to jail time for his role in the financial crisis that destroyed $34 trillion in wealth, pushed unemployment up to 10 percent, and sparked the so-called Great Recession. Punishment has instead taken the form of settlements: the major banks have paid well over $100 billion in fines since 2007 for practices that caused – or stemmed from – the financial crisis, all without having to admit criminal wrongdoing.
This light-touch prosecutorial approach can be traced back to a 1999 memo sent by then-deputy attorney general Eric Holder (and later attorney general under President Obama) in which he argued that the Department of Justice (DOJ) should weigh the "collateral consequences" of bringing criminal charges against large firms.
In other words, Holder argued that prosecutors should consider the economic effects – to a firm, its employees, and the economy as a whole – when deciding how to prosecute a corporation for illegal activity.
While this approach has allowed the government to net billions of dollars, critics argue that it has failed to punish or deter the actions of individuals whose behavior did – and once again could – damage the U.S. and global economy.
Few question whether the firms, and individuals within them, committed crimes prior to the 2008 crisis.
There is little doubt that many bankers were culpable of fraudulent activity, for instance, in generating the subprime mortgages that caused the housing bubble that burst in 2007, and Clayton reports of over 900,000 loans packaged into mortgage-backed securities (MBS) found that nearly half of them did not meet the lenders' own underwriting standards. Moreover, when the banks sold these MBSs to clients, they not only misled investors by failing to disclose how risky the underlying assets were (most of which came
stamped with deceptive AAA ratings), but they also insured, marked down, and bet against these assets as the market started to turn.
While innumerable low and mid-level workers across multiple banks and firms helped to construct this fragile house of cards, Charles Ferguson argues that top-level executives were ultimately responsible for poor stewardship of these firms. For instance, Ferguson believes that some CEOs and CFOs violated the 2002 Sarbanes-Oxley Act (among other laws and regulations) by signing off on documents that misrepresented the financial position of their firms and by ignoring and even suppressing employees' warnings of the consequences of their companies' practices.
As PBS Frontline observed, the lack of individual accountability for the 2008 crisis differs greatly from the government's response to the Savings and Loans crisis, when the Department of Justice convicted over 1,000 bankers. Charles Keating of the failed Lincoln Savings and Loan Association – the figurehead of the S&L crisis – received a prison sentence of 12 years and 7 months after pleading guilty to four counts of fraud.
Today, some point to the recent financial scandals that have occurred since the 2008 crisis – including HSBC's money laundering, JPMorgan Chase's "London Whale" episode, and the LIBOR manipulation scandal – as evidence that the government's prosecutorial approach has failed to deter individuals from engaging in highly risky and illicit activity.
This, however, may be changing. Since Loretta Lynch replaced Eric Holder at the helm of the DOJ, the department has indicated that it may begin taking a more aggressive stand against the banks.
Less than a month after becoming attorney general, Lynch announced that five banks agreed to pay $5.6 billion for rigging the foreign exchange market. In addition, the DOJ rescinded its non-prosecution with one of these banks, USB, regarding its involvement in the LIBOR scandal (the bank had initially made this agreement with Holder's DOJ in 2012).
Another sign that the DOJ aims to amp up the effort against the banks and individual bankers comes from a speech made by Deputy Attorney General Sally Yates, who on September 10, 2015, announced:
[R]egardless of how challenging it may be to make a case against individuals in a corporate fraud case, it’s our responsibility at the Department of Justice to overcome these challenges and do everything we can to develop the evidence and bring these cases. The public expects and demands this accountability. Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.
Since this speech, commentators have begun discussing the effects of the "Yates memo," which outlines how the department should manage future prosecutions. As the New York Times put it, the memo "tells civil and criminal investigators to focus on individual employees from the beginning."
While the time for prosecuting bankers responsible for the financial crisis may have passed, Bernanke may yet get his wish that, from now on, the government will prioritize punishing individuals rather than making cash settlements with "abstract firms."