An Idiot's Guide to Prosecuting Corporate Frauds

By David Dayen, The Intercept

04 February 16

ay you’re the newly elected president of the United States, and you want to make prosecuting corporate crime a top priority.

Where do you start? Here would be good.

A new group called Bank Whistleblowers United have just pushed out a comprehensive plan they think would put the executive branch back in the business of enthusiastically identifying, indicting, and convicting financial fraudsters — restoring accountability while protecting the public.

The cumulative credibility of the group’s four founders is extremely strong. Richard Bowen is the Citigroup whistleblower who unsuccessfully warned top management about the rotten condition of loans inside mortgage-backed securities. Michael Winston spoke out about similarly corrupt practices at non-bank mortgage originator Countrywide. Gary Aguirre, a Securities and Exchange Commission attorney, was fired for refusing to let a Wall Street banker out of an insider trading investigation.

And their ringleader is William Black, an outspoken fraud-fighter and longtime white-collar criminologist who was a two-fisted bank regulator during the savings and loan crisis and now teaches at the University of Missouri–Kansas City (UMKC).

“The common theme,” Black said with characteristic bluntness, “is the unbelievably pathetic job of the Department of Justice and the FBI.”

One of the first steps the group proposes – echoing the recommendations Senator Elizabeth Warren made last week – involves appointing aggressive leadership at federal agencies with no conflicts of interest with the entities they regulate, and hiring enough staff trained in criminology and financial fraud to attack the problem.

“You don’t have to reinvent the wheel,” said Black. “The Justice Department forgot there was a wheel.”

The template for the plan is the saving and loan crisis of the late 1980s, when just one federal agency, the now-defunct Office of Thrift Supervision (OTS) issued over 30,000 criminal referrals and over 1,000 major bank executives went to prison.

By comparison, in the 2008 financial crisis, OTS and their bank regulator counterparts made zero outside criminal referrals on financial crimes. And more recently, the rate of corporate prosecutions has been pathetic.

The whistleblowers would restore a job position from that earlier era: Criminal referral coordinators at every federal agency to meet with their counterparts in law enforcement to press for prosecutions and continually improve the process. They would also issue monthly referral reports to make the process more transparent. George W. Bush eliminated criminal referral coordinators in his first term.

Federal agencies would also be required to create a “Top 100” list of elite fraud schemes in their jurisdiction, borrowing another successful technique from the S&L crisis. These top 100 schemes would hold priority over small fry prosecutions that look good on a tally of convictions but don’t attack the most damaging fraud.

“When we created the Top 100 project,” said Bill Black, “the assistant U.S. attorney had to report every month to someone who got on your ass if the cases weren’t progressing.”

Black says the Top 100 list led to prosecuting 300 savings and loans and 600 officials. “And despite the banks having the best lawyers in the world, we still got a 90 percent conviction rate.”

The proposal would end the emphasis on deferred prosecution agreements that let corporations and individuals get away with paying a fine or agreeing to independent monitoring instead of facing a criminal conviction.

It would end prosecutions of mortgage fraud “mice” – cases against people who defraud banks – and transfer the resources to financial fraud “lions” – when banks defraud people.

It would end an existing partnership with the Mortgage Bankers Association trade group. “In essence,” the Bank Whistleblowers Group writes, “DoJ has made itself the collection agency for the worst criminal enterprises in the nation.”

The whistleblowers even believe that quick action could lead to immediate indictments. For instance, they call for the public release of the still-secret reports from Clayton Holdings, a third-party due diligence firm that tested mortgage loans from practically every major bank during the housing bubble, and told the banks that 1 in 3 were improperly made. Financial Crisis Inquiry Commission chair Phil Angelides this week identified the Clayton reports as the key to a “last chance for justice.” The statute of limitations on the final securitizations doesn’t end until 2017.

“It’s already baked in that this will be the biggest strategic failure of DOJ in history,” said Black. “But they could still indict the top ten frauds.”

Another novel technique would be to impose individual minimum capital requirements (IMCRs) commensurate with the risk banks pose based on their size, activities, and compensation systems. The whistleblower group believes that banking regulators have had the authority to do this since 1989 if they make a factual finding that it would prevent systemic risk.

Black said the capital requirements would shrink the size of institutions, because being big would become considerably less profitable. “If you assessed this on an actuarial basis based on risk, the capital requirement would be so high that nobody would do it,” he said.

As a banking regulator in the 1980s, Black famously blew the whistle on the “Keating Five” Senators who tried to intimidate him into ending the federal takeover on Charles Keating’s Lincoln Savings Bank. He has assisted the governments of France, Iceland, and Ireland on how to prosecute fraud epidemics. Only in the United States have his efforts been rebuffed.

“All the candidates claim they’re going to take on Wall Street, we take them at their word,” Black said. “This is how you move it from verbiage. Even the most conservative candidate should be eager to sign on to most of the plan.”

A separate pledge attached to the group’s plan would have candidates vow to not take campaign contributions from any financial firm charged with committing fraud. Officers of the firm would be limited to contributions of no more than $250.

The group also asks the Justice Department to be a little more respectful of financial-fraud whistleblowers like themselves in the future. “There hasn’t been a single press conference where [DOJ] has thanked the whistleblowers or even identified them,” Black said. “If you wanted to encourage the rule of law, you would praise them as opposed to claiming credit for their work. My mom drilled into me, when people do nice things, say thank you.”