I suppose we shouldn’t be surprised that John Carney thinks “We Should Not Criminally Prosecute Lehman Executives.” After all, this is someone who is a fan of insider trading, which he says “harms no one” and ought to be legalized, and who thinks the Community Reinvestment Act played a significant role in causing the crisis.
Despite his concern for Lehman executives, however, he’s not above, putting together a slideshow on “The People Who Are Going To Get Nailed In The Lehman Examiner Fallout.” Lots of clicks to be had for Clusterstock wasting people’s time with unnecessarily frequent page jumps, after all!
But his argument on why not to prosecute is an even bigger mess, as you might imagine. Skip the first nine paragraphs of throat-clearing and start with this gem:
It’s far from clear that a criminal prosecution would be the best response to alleged fraud at Lehman Brothers. In the first place, the alleged fraud is not what brought down Lehman Brothers and did not cause the broader financial crisis. The questionable Repo 105 transactions may have actually forestalled a collapse for several months because they may have concealed Lehman’s failure to improve its financial condition in 2007 and 2008.
So that $50 billion worth of lying and cheating? Well, it didn’t hurt the company, mind you. In fact, it helped keep it alive! You thought you, Mr. Lehman shareholder, Ms. Lehman counterparty, wanted to know about $50 billion here or there on its balance sheet, but you really didn’t. What you didn’t know didn’t hurt you or something.
Behold, Poor Reason No. 2:
What’s more, we may actually learn less about the collapse of Lehman if the case goes criminal. The problem is criminal prosecutions are rarely the best way to uncover facts. The threat of long prison sentences creates an all-or-nothing situation in which top executives refuse to testify in order to avoid self-incrimination. The public might well lose valuable information—information that could be useful to the formation of new regulations or at least investor awareness of the risk of management shading the truth—if prosecutors insist on bringing criminal charges.
That’s what you call a conclusion in search of an argument.”Investor awareness of the risk of management shading the truth”? Come on. That makes about as much sense as the rest of the paragraph, which is what’s known in the biz as “concern trolling.” It’s written like Carney is auditioning for a spot on The Wall Street Journal editorial page, perhaps as the Holman Jenkins of the Blog Generation. But even those guys aren’t quite this transparently nonsensical.
See Carney tying himself up in knots here (emphasis mine):
The trade-off for the societal cost of this lost information should be the deterrent effect from criminal prosecutions. But it’s not clear that there is much of a deterrent effect at all. The long sentence handed out to Enron’s Jeff Skilling did not seem to deter Lehman executives. It’s doubtful anyone at a major public company or a Wall Street financial firm feel any deterrence effect from the prosecution of Lehman executives.
That’s quite the change from Carney’s thoughts on deterrence four months ago when he was cheering the acquittal of another couple of white-collar defendants, Ralph Cioffi and Matthew Tannin of Bear Stearns:
The very threat of prosecution may be a deterrent enough for many, even if they think they would be acquitted in the end.
A year before that, Carney came to the defense of—you guessed it—Lehman’s very own Dick Fuld, saying he shouldn’t be prosecuted, in part because “there is probably zero deterrent effect to prosecuting Fuld.”
So for Carney, the threat of prosecutions is a deterrent. Actual prosecutions? Not a deterrent.
After saying something about prosecutions not being a deterrent because “Only executives who happened to work at firms that failed face prosecution,” which is just false, Carney writes:
This is the deepest problem with the criminal prosecution of Lehman executives—it would essentially be punishing business failure with criminal liability. The market does a fine job of punishing business failure by putting the worst failures out of business.
But business failure isn’t a crime. You know what is a crime? Breaking the law. And the second sentence there is an inevitable bit of market puffery. Apparently the market does a fine job of punishing business failure by encouraging businesses to get so big and interconnected that we can’t let them fail lest they send the markets over the cliff like Lehman did.