AG Eric Holder Has No Balls

By Matt Taibbi, Rolling Stone

15 August 12

've been on deadline in the past week or so, so I haven't had a chance to weigh in on Eric Holder's predictable decision to not pursue criminal charges against Goldman, Sachs for any of the activities in the report prepared by Senators Carl Levin and Tom Coburn two years ago.

Last year I spent a lot of time and energy jabbering and gesticulating in public about what seemed to me the most obviously prosecutable offenses detailed in the report - the seemingly blatant perjury before congress of Lloyd Blankfein and other Goldman executives, and the almost comically long list of frauds committed by the company in its desperate effort to unload its crappy "cats and dogs" mortgage-backed inventory.

In the notorious Hudson transaction, for instance, Goldman claimed, in writing, that it was fully "aligned" with the interests of its client, Morgan Stanley, because it owned a $6 million slice of the deal. What Goldman left out is that it had a $2 billion short position against the same deal.

If that isn't fraud, Mr. Holder, just what exactly is fraud?

Still, it wasn't surprising that Holder didn't pursue criminal charges against Goldman. And that's not just because Holder has repeatedly proven himself to be a spineless bureaucrat and obsequious political creature masquerading as a cop, and not just because rumors continue to circulate that the Obama administration - supposedly in the interests of staving off market panic - made a conscious decision sometime in early 2009 to give all of Wall Street a pass on pre-crisis offenses.

No, the real reason this wasn't surprising is that Holder's decision followed a general pattern that has been coming into focus for years in American law enforcement. Our prosecutors and regulators have basically admitted now that they only go after the most obvious and easily prosecutable cases.

If the offense committed doesn't fit the exact description in the relevant section of the criminal code, they pass. The only white-collar cases they will bring are absolute slam-dunk situations where some arrogant rogue commits a blatant crime for individual profit in a manner thoroughly familiar to even the non-expert portion of the jury pool/citizenry.

In other words, they'll take on somebody like Raj Rajaratnam, who stacked his illegal insider trades so brazenly and carelessly that his case almost reads like a finance version of Jeff Dahmer tripping over bodies in his Milwaukee apartment. Or they'll pursue Bernie Madoff on the tenth or eleventh time he crosses their desk, after years of nonaction, and after he breaks down weeping and confessing. Basically, if someone backs a dump truck up to the DOJ and unloads the entire case, gift-wrapped, a contrite and confessing criminal included, a guy like Eric Holder might, after much agonizing deliberation, decide to prosecute.

But here's the thing: most of the crimes Wall Street people commit involve highly specific, highly individualized transactions that won't fit Eric Holder's bag of cookie-cutter statutory definitions. That is not the same thing as saying they're not crimes. They are: the crimes of the crisis period were and are very basic crimes like fraud, theft, perjury, and tax evasion, only they're dressed up in millions of pages of camouflaging verbiage.

Or, even more often, the crimes have also been sanctified in advance by "reputable" law and accounting firms, who (for huge fees) offered their clients opinions that, if X and Y are signed in accordance with Z, and A and B are stipulated by the parties, and everyone's sitting Indian-style and facing the moon when the deal is agreed to, then it's not fucked up and illegal when Goldman Sachs tells you it's a co-investor in your deal when it's actually got $2 billion bet against you.

You know that look a dog gives you when you show it something confusing, like an electric razor or a lawn sprinkler? That's the look federal prosecutors give when companies like Goldman wave their attorneys' sanctifying opinions at them. They scratch their heads and say: "Oh, wow, well since this was signed in Australia by three millionaire lawyers wearing magic invisibility cloaks, it really isn't fraud! They're right!"

As one high-profile attorney currently working on a closely-watched case involving a Wall Street bank put it to me yesterday: "With these Justice guys, everything the Wall Street lawyers say makes perfect sense to them, no matter how dumb it is."

You can almost feel the relief emanating from Washington when these prosecutors decide against matching wits with the wizened 60 year-old legal Sith Lords from Harvard and Yale who've seen everything, know every judge by his or her first name, and in a trial would be basically bringing absolutely everything a lawyer can bring to the table, except consciences of course.

It's political, sure, these decisions not to go after the Goldmans of the world, but more than that what usually rules the day is just pure intellectual fear - appropriate in many cases, since any prosecutor who buys for a second any of the high-priced excuses being shoveled at them from corporate defense firms like Davis Polk or criminal defense mercenaries like Reid Weingarten (retained to defend Blankfein against possible criminal charges) probably really is no match, intellectually, for Wall Street's lawyers.

They're also no match morally. Wall Street firms pay their lawyers millions of dollars for their creativity, for their willingness to fight. They say to their lawyers, as Lehman Brothers said before it crashed: "We'd like to book $50 million in loans as sales. Find a way for us to call that legal."

As it happens Lehman couldn't find even one American law firm to go for that one, so they went to England and got a firm called Linklaters to find a way, which they did. The Linklaters opinion was just a duller version of the, "It's legal if we're all sitting Indian style and facing the moon" defense. Here's the New York Times explanation:

Enter Linklaters, which grounded its legal brief in English, rather than American, law. The firm explicitly said: "This opinion is limited to English law as applied by the English courts and is given on the basis that it will be governed by and construed in accordance with English law."

Otherwise, Linklaters provided Lehman with exactly what it wanted to hear. The law firm decreed in its briefs, at least as outlined in the 2006 iteration obtained by Mr. Valukas, that intent matters. If two parties intend to exchange assets for cash, and then later the party receiving the assets decides to hand back "equivalent assets (such as securities of the same series and nominal value) rather than the very assets that were originally delivered," that amounts to a sale.

That's how law works on Wall Street. The bank walks into the room with the sordid activity, and the law firm's partners huddle up and whip their associates - for hundreds and hundreds of billable hours straight, if necessary - until a way is found to call stealing or tax evasion or accounting fraud or whatever legal.

That's the way it should work on the prosecutorial side, too. You should start with a simple moral premise - this group of crooks ripped off X group of victims for fifty million dollars - and then you should bury yourself in law books until you find a way to put them all in jail. If Linklaters gets paid to be creative, well, Mr. Holder, we're paying you to be creative, too.

Again, though, Holder didn't need to be creative in the Goldman case. Levin gift-wrapped the whole thing for him. He could have had a dozen easy convictions just on the evidence in that report, and if he had been creative, if he had used his vast power to roll up the guilty and flip them into more revelations, then he'd have had enough cases to last the AG's office the next decade.

But the Holders of the world do not want to be creative when the targets are politically influential rich people. Instead, they use their creativity against Roger Clemens, Barry Bonds, immigrant housekeepers, and guys who knock over liquor stores. They like to flex muscles against bank robbers, celebrity tax evaders (we can't have Wesley Snipes on the loose!), truck hijackers, and drug dealers. As Gene Wilder would say, "You know - morons."

Holder's non-decision on Goldman is more than unsurprising. It amounts to an official announcement that the government is no longer in the business or prosecuting smart criminals. It's pathetic. The one thing you pay any lawyer to have is balls, and our nation's top attorney has none.

Social Security Under Fierce Attack

By Sen. Bernie Sanders, Reader Supported News

15 August 12

n the 77 years since President Franklin Roosevelt signed Social Security into law on August 14, 1935, the retirement program has been one of the nation's most successful anti-poverty programs. Before Social Security existed, about half of America's senior citizens lived in poverty. Today, less than 10 percent live in poverty.

Today, Social Security not only provides retirement security but also enables millions of people with disabilities and widows, widowers and children to live in dignity and security.

In these highly volatile economic times, when millions of Americans lost their life savings in the 2008 Wall Street crash, it is important to remember that since its inception, through good economic times and bad, Social Security has paid every penny owed to every eligible beneficiary.

Despite Wall Street and right-wing misinformation, Social Security, which is funded by the payroll tax, does not contribute to the deficit. In fact, the Social Security Trust Fund today, according to the Social Security Administration, has a $2.7 trillion surplus and can pay 100 percent of all benefits owed to every eligible American for the next 21 years. Further, unlike the huge commissions paid out to Wall Street firms, Social Security is run with very modest administrative costs.

Despite Social Security's popularity and overwhelming success, we are now in the midst of a fierce and well-financed attack against Social Security. Pete Peterson, the Wall Street billionaire, has pledged $1 billion of his resources to cut Social Security and other programs of enormous importance to the American people. Other billionaires and Wall Street representatives are also working hard to weaken or destroy Social Security and endanger the well-being of millions of Americans. We must not allow their effort to succeed.

Let us never forget that the current deficit of $1 trillion was primarily caused by two unpaid-for wars and tax breaks for the rich. These policies were strongly supported by "deficit hawks." The deficit is also related to a major decline in revenue as a result of the Wall Street-created recession. The deficit is a serious issue, but we must not move toward deficit reduction on the backs of the elderly, the children, the sick and the poor. This would not only be immoral, it is bad economic policy. At a time when the wealthiest people in this country are doing phenomenally well and their effective tax rate is the lowest in decades, the top 1 percent must begin paying their fair share of taxes. At a time when large corporations are enjoying record-breaking profits, we have got to eliminate the huge corporate loopholes which result in a massive loss of federal revenue. At a time when we have tripled military spending since 1997, we must take a hard look at a bloated and wasteful Defense Department.

House Budget Committee Chairman Paul Ryan has been a proponent of privatizing the retirement program by putting seniors' savings into risky Wall Street investments. Even before tapping Ryan as his running mate, Republican presidential nominee Mitt Romney said he wants to begin the process of privatizing Social Security. He also would gradually increase the retirement age to 68 or 69. And he favors slowing the growth of benefits for persons with "higher incomes." Under a plan floated by Romney's allies on Capitol Hill -- Sens. Lindsey Graham (R-S.C.), Rand Paul (R-Ky.) and Mike Lee (R-Utah) -- someone making about $45,000 a year today who retires in 2050 would receive 32 percent less in annual Social Security benefits than under the current formula. By that definition, the top 60 percent of all wage earners would be considered "higher income."

President Barack Obama, meanwhile, was a staunch defender of Social Security in his 2008 campaign. So far this year, however, Obama has refused to stand behind his four-year-old opposition to cuts. In fact, the president has signaled that he may be open to lowering benefits by changing how they are calculated. In my view, it is long past time that the president told the American people in no uncertain terms, as he did in 2008, that he will not cut Social Security on his watch.

To keep Social Security's finances sound in the future I have introduced legislation -- identical to a proposal that Obama advocated in 2008 -- to apply the payroll tax on incomes above $250,000 a year. Under current law, only earnings up to $110,100 are taxed. The Center for Economic Policy and Research has estimated that applying the Social Security payroll tax on income above $250,000 would only impact the wealthiest 1.4 percent of wage earners.

Those who want to cut Social Security benefits are looking at a number of proposals. One of the most talked about ideas is moving toward a so-called "chained-CPI," which would not only impact seniors, but also military retirees and those who receive benefits from the Department of Veterans Affairs. The "chained-CPI" approach changes how the Consumer Price Index is calculated, so that a person 65 years old today would earn $560 a year less in Social Security benefits once they turn 75. Benefits would be cut by nearly $1,000 a year once they turn 85. Instead, I have proposed legislation to base Social Security cost-of-living adjustments on a Consumer Price Index for the Elderly, a measure that would increase benefits because it would take into account the real-life impact of rising health care costs and prescription drug expenses paid by seniors.

While we often take Social Security for granted, we must not forget that Social Security today is providing dignity and security to tens of millions of Americans. It is a program that is working and working well. We must stand up today, on the 77th anniversary of this enormously important program. We must pledge to continue the fight against the right-wing Republicans, some Democrats and their wealthy backers who want to destroy the program.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.