Adding to Frontline’s case against Breuer and DOJ are the whistleblowers Smith digs up who have never been contacted by the feds. This is becoming something of a running theme of these televised exposés. In the 60 Minutes piece I noted above, Steve Kroft talked to Eileen Foster, who not only had been the top fraud-investigations executive at Countrywide, but had won a whistleblower suit against the company. Michael Hudson of the Center for Public Integrity had spotlighted her in a standout piece months earlier, but by the time Kroft got to her, she had never been contacted by the Justice Department.

Frontline’s whistleblowers were dug up by attorneys for private litigants. One due-diligence supervisor, Tom Leonard, said he had never heard from the feds until “just recently.”

So why not? Why haven’t there been tough investigations, much less indictments? Is it the promise of post-government riches or the incestuous ties of the power elite?

It’s worth remembering this Reuters report from a year ago looking at how Breuer and Holder were both partners at white-shoe D.C. law firm Covington & Burling, which represented a “Who’s Who” of the Wall Street banks and mortgage companies that caused the crisis. “Both the Justice Department and Covington declined to say if either official had personally worked on matters for the big mortgage industry clients,” reported Scot Paltrow.

Frontline goes another route, using Breuer’s own words:

SMITH: … in that speech, you made a reference to “losing sleep at night over worrying about what a lawsuit might result in at a large financial institution.” Is that really the job of a prosecutor, to worry about anything other than simply pursuing justice?

BREUER: I think I am pursuing justice. And I think the whole entire responsibility of the department is to pursue justice. But in any given case, I think I and prosecutors around the country, being responsible, should speak to regulators, should speak to experts, because if I bring a case against institution A, and as a result of bringing that case there’s some huge economic effect, it affects the economy so that employees who had nothing to do with the wrongdoing of the company…

Back in 2011, this tremendous NYT investigation showed how Tim Geithner warned then-New York AG Andrew Cuomo about pushing too hard on financial fraud:

According to three people briefed at the time about the meeting, Mr. Geithner expressed concern about the fragility of the financial system.

His worry, according to these people, sprang from a desire to calm markets, a goal that could be complicated by a hard-charging attorney general.

And here’s Breuer, in September, in the speech Smith refers to above:

We are frequently on the receiving end of presentations from defense counsel, CEOs, and economists who argue that the collateral consequences of an indictment would be devastating for their client. In my conference room, over the years, I have heard sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effects. Sometimes - though, let me stress, not always - these presentations are compelling. In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders, just as we must take into account the nature of the crimes committed and the pervasiveness of the misconduct. I personally feel that it’s my duty to consider whether individual employees with no responsibility for, or knowledge of, misconduct committed by others in the same company are going to lose their livelihood if we indict the corporation. In large multi-national companies, the jobs of tens of thousands of employees can be at stake. And, in some cases, the health of an industry or the markets are a real factor. Those are the kinds of considerations in white collar crime cases that literally keep me up at night, and which must play a role in responsible enforcement.
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Ryan Chittum , a former Wall Street Journal reporter, is deputy editor of The Audit, CJR's business section. If you see notable business journalism, give him a heads-up at rc2538@columbia.edu.