Eric Holder has long insisted that he tried really hard when he was attorney general to make criminal cases against big banks in the wake of the 2007 financial crisis. His excuse, which he made again just last month, was that Justice Department prosecutors didn’t have enough evidence to bring charges.
Many critics have long suspected that was bullshit, and that Holder, for a combination of political, self-serving, and craven reasons, held his department back.
A new, thoroughly-documented report from the House Financial Services Committee supports that theory. It recounts how career prosecutors in 2012 wanted to criminally charge the global bank HSBC for facilitating money laundering for Mexican drug lords and terrorist groups. But Holder said no.
When asked on June 8 why his Justice Department did not equally apply the criminal laws to financial institutions in the wake of the 2008 economic crisis, Holder told the platform drafting panel of the Democratic National Committee that it was laboring under a “misperception.”
He told the panel: “The question you need to ask yourself is, if we could have made those cases, do you think we would not have? Do you think that these very aggressive U.S. attorneys I was proud to serve with would have not brought these cases if they had the ability?”
The report — the result of a three-year investigation — shows that aggressive attorneys did want to prosecute HSBC, but Holder overruled them.
In September 2012, the Justice Department’s Asset Forfeiture and Money Laundering Section (AFMLS) formally recommended that HSBC be prosecuted for its numerous financial crimes.
The history: From 2006 to 2010, HSBC failed to monitor billions of dollars of U.S. dollar purchases with drug trafficking proceeds in Mexico. It also conducted business going back to the mid-1990s on behalf of customers in Cuba, Iran, Libya, Sudan, and Burma, while they were under sanctions. Such transactions were banned by U.S. law.
Newly public internal Treasury Department records show that AFMLS Chief Jennifer Shasky wanted to seek a guilty plea for violations of the Bank Secrecy Act. “DoJ is mulling over the ramifications that could flow from such an approach and plans to finalize its decision this week,” reads an email from September 4, 2012, to senior Treasury officials. On September 7, Treasury official Dennis Wood describes the AFMLS decision as an “internal recommendation to ask the bank [to] plead guilty.” It was a “bombshell,” Wood wrote, because of “the implications of a criminal plea,” and “the sheer amount of the proposed fines and forfeitures.”
But after British financial minister George Osborne complained to the Federal Reserve chairman and the Treasury Secretary that DOJ was unfairly targeting a British bank, senior Justice Department leadership reportedly sought to “better understand the collateral consequences of a conviction/plea before taking such a dramatic step.”
The report documents how Holder and his top associates were concerned about the impact that prosecuting HSBC would have on the global economy. And, in particular, they worried that a guilty plea would trigger a hearing over whether to revoke HSBC’s charter to do banking in the United States.
According to internal documents, the DOJ then went dark for nearly two months, refusing to participate in interagency calls about HSBC. Finally,on November 7, Holder presented HSBC with a “take it or leave it” offer of a deferred prosecution agreement, which would involve a cash settlement and future monitoring of HSBC.
No guilty plea was required.
But even the “take it or leave it” offer was apparently not the last word. HSBC was able to negotiate for nearly a month after Holder presented that offer, getting more favorable terms in the ultimate $1.9 billion deferred prosecution agreement, announced on December 11, 2012.
The original settlement documents would have forced any HSBC executive officers to void their year-end bonuses if they showed future failures of anti-money laundering compliance. The final documents say that, in the event of such failures, senior executives merely “could” have their bonuses clawed back.
In addition, HSBC successfully negotiated to have individual executives immunized from prosecution over transactions with foreign terrorist organizations and other sanctioned entities, even though the original agreement only covered the anti-money laundering violations and explicitly left open the possibility of prosecuting individuals.
As a Justice Department functionary in 1999, Holder wrote the infamous “collateral consequences” memo, advising prosecutors to take into account economic damage that might result from criminally convicting a major corporation.
In 2013, he unwittingly earned his place in history for telling the Senate Judiciary Committee, “I am concerned that the size of some of these [financial] institutions becomes so large that it does become difficult for us to prosecute them,” which became known as the “Too Big to Jail” theory.
Holder told the Democratic platform drafting committee that “it was not lack of desire or lack of resources” that led to the lack of prosecutions for any major bank executive following the financial crisis. “We had in some cases statutory and sometimes factual inabilities to bring the cases that we wanted to bring,” he said.
The HSBC case, however, shows that lack of desire at the highest levels of the Justice Department was indeed the primary reason that no prosecutions took place.
Former Rep. Brad Miller, D-N.C., who also testified to the drafting committee, cited the HSBC case as an example of the lack of equal application of justice in the Holder era. Referring to the concern over destabilizing the financial system with an HSBC prosecution, Miller said, “That’s not an argument that’s available to too many people: ‘You can’t arrest me for selling cigarettes, it might destabilize the financial system!’ ”
The internal communications in the House report all come from the Treasury Department. The Justice Department, they say, did not comply with subpoenas for information about the settlement.
Holder has returned to Covington & Burling, a corporate law firm known for serving Wall Street clients in 2015. He had worked at Covington from 2001 until he was sworn in as attorney general in Feburary 2009. Covington literally kept an office empty for him, awaiting his return.
Jennifer Shasky, the AFMLS chief who requested the prosecution of HSBC but was overruled, recently resigned as the head of the Financial Crimes Enforcement Network to become a senior compliance officer with HSBC.
By David Dayen