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.
So there you have it. Whatever the corrupting effects of the revolving door, at base Wall Street is too big to jail. This is at least in part the hangover from the Arthur Andersen prosecution. At the same time, you can indict subsidiaries and executives of companies without indicting the whole corporation, so this hardly explains the government-wide reticence to prosecute individuals. We may never know what really happened there.