Is "Too Big To Jail" A Sacred Concept In America... Even With A Democrat In The White House?

The story of Henry Frick, one of the worst monsters of American capitalism, should have ended the idea of "too big to jail" in 1889. But he got off scott free and... it didn't-- nor have any of the other outrages against society done so. This week, after the latest HSBC fiasco, George Miller (D-CA) and a group of other progressives are giving it a try again. They blasted the Justice Department’s decision to “defer prosecution” of bank officials as symptomatic of an unacceptable lack of accountability for large financial institutions.

“We believe that the Department of Justice owes a greater duty of diligence to the American people in prosecuting the responsible HSBC officials to the fullest extent of the law for their criminal activities,” Miller and his colleagues wrote in a letter today to Attorney General Eric Holder expressing their strong disagreement with the decision that indictments will not be brought against the HSBC officers and employees responsible for abetting laundering actions.  The Justice Department based its decision to not pursue criminal charges on what it called the “collateral consequences” a prosecution could have on the financial system.

After sending the letter, Miller said the American people have been let down by the Department’s position in this case.  “It’s unconscionable that bank employees will not be held responsible for laundering upwards of a billion dollars in drug money and funds for dangerous foreign regimes that are known to support terrorist organizations,” he said.  “HSBC employees’ actions have helped to facilitate violence on the streets of our communities and the efforts of America’s enemies to attack American troops on the front lines.”

Recent reports have noted that Colombian drug traffickers who utilized HSBC’s lax regulations on money laundering have in fact been charged in U.S. courts and face over a decade in prison. However, no HSBC staff that facilitated those same traffickers’ work will face jail time.

“There has been a chronic lack of accountability for financial institutions for a number of years. Not only has this played a major role in the reckless behavior which collapsed our economy, but it now manifests itself in blatantly criminal activity,” Miller added. “The Justice Department’s decision to ‘defer prosecution’ is irresponsible. It broadcasts a clear message to financial institutions: if you’re big enough, you’re held to a separate set of standards with respect to our nation’s laws. No bank, no matter how large or important to our financial system, should be too big to jail.”

The lawmakers’ letter notes that, “Violations of anti-money laundering statutes in support of drug traffickers and America’s enemies are beyond the pale and must consistently be prosecuted to the fullest extent of the law, and even banks that are very large and systemically important cannot be too big to jail.”

Full text of the letter to U.S. Attorney General Holder is below and attached:

January 14, 2013

Hon. Eric Holder
Attorney General
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Holder:

We are writing you in support of the concerns expressed in the attached letter sent to you on December 13th by Senator Jeff Merkley regarding the deferred prosecution agreement with HSBC. We are committed to achieving needed accountability in the financial sector, particularly for large financial institutions that played a significant role in bringing about the 2008 financial crisis that has caused great pain and suffering over the last several years.

As you know, the case against HSBC details a number of serious offenses involving clear and blatant violations of anti-money laundering statutes, which facilitated the activities of drug traffickers, banks doing business in sanctioned countries such as Iran, and others. It is inconceivable to us that indictments would not be brought against those HSBC officers and employees that were responsible for these laundering violations. Money laundering was carried out on behalf of the Mexican drug cartels that are responsible for significant crime, violence and death in the communities that we represent.

Money laundering was also conducted on behalf of governments that are supporting terrorist organizations that are attacking and killing American troops and citizens around the world. All of us have had the heartbreaking experience of attending the funerals of our fallen heroes. It is unacceptable to us that indictments have not been pursued against those who have engaged in offenses that have supported the criminal drug activities on our streets and terrorist activities against our country, our military and our citizens.

We believe that the Department of Justice owes a greater duty of diligence to the American people in prosecuting the responsible HSBC officials to the fullest extent of the law for their criminal activities. We are particularly shocked by recent reports that Colombian drug traffickers who utilized HSBC’s lax regulations on money laundering have in fact been charged in U.S. courts and face over a decade in prison, yet the HSBC employees who made such laundering possible have not faced criminal prosecution. Violations of anti-money laundering statutes in support of drug traffickers and America’s enemies are beyond the pale and must consistently be prosecuted to the fullest extent of the law, and even banks that are very large and systemically important cannot be too big to jail.

We join Sen. Merkley in urging your immediate attention to this issue and look forward to your response to his inquiry. Thank you in advance for your consideration of our concerns.

HSBC-- Too Big To Jail

Doug Flint, Stuart Gulliver, Vincent Cheng, Sandy Flockhart, Iain Mackay will not be wearing orange jumpsuits & meeting a guy named Bruce with 2 fang tattoos

We've been reading for years now about how HSBC-- the world's third largest bank-- has been guilty of systemic money laundering for Mexican drug lords, of working to help finance Middle East terrorist organizations and of teaching first Iraqi and then Iranian bankers how to circumvent American Trading With the Enemy statutes. They've been under investigation for a long time here and Tuesday a settlement was announced that included a $1.92 billion fine, the biggest ban fine in American history. Last month it was revealed that HSBC had set up offshore accounts in Jersey (a convenient U.K. version of the Cayman Islands) for drug dealers and other British and international criminals to launder their plunder and avoid taxes. The HSBC business model is apparent.

Hensarling, Lucas, Crowley

HSBC, which was founded in 1991, holds over $2.64 trillion in assets, making it the sixth largest public company in the world. Spending in U.S. elections is way down from what it was when they were spending millions to bribe politicians in 2006, but this year they spent $462,574 on legalistic bribes, primarily to Republicans and conservative Democrats. They gave $10,000 each to the Blue Dog PAC and the New Dem Coalition, the same amount they handed over to leadership PACs run by John Boehner, and by House Financial Services Committee members Patrick McHenry and Jeb Hensarling. The top direct payments to campaigns were flat-out bribes to notoriously corrupt congressmen in leadership positions and on financial committees with reputations for doing special favors for special interests: Joe Crowley (D-NY), a sleazy member of the House Ways and Means Committee and the newest member of Nancy Pelosi's House Leadership team ($10,000, the biggest amount to any congressional campaign this cycle); Scott Garrett (R-NJ), a member of the House Financial Services Committee with a reputation for corruption almost as shady as Crowley's; Ed Royce (R-CA); Randy Neugebauer (R-TX); Eric Cantor (R-VA); Jim Matheson (Blue Dog-UT); Frank Lucas (R-OK); congressional Mafioso Michael "Mikey Suits" Grimm (R-NY); and John Boehner (R-OH). Crowley, Boehner, Cantor, Royce and the rest of the crooked politicians are refusing to divest themselves of the HSBC bribes even in light of the company's criminal and national security violations. On can only speculate if the approximately $10 million HSBC has spent bribing Members of Congress had anything to do with the sweetheart deal they just got from the Justice Department.

Wait... a $1.92 billion fine is a sweetheart deal? You betcha! That money comes out of the hide of the bank's shareholders, not out of the pockets of the perpetrators of the bank's criminal operations, which, of course, are still ongoing. And, of course, no one who planned or carried out the bank's criminal schemes is going to prison. It makes me think about another bankster several decades back who was also violating Trading With the Enemy statutes and also had enough political juice to get away scott free. Prescott Bush was a bankster and Wall Street executive, a director of Union Bank and the key man in a scheme to do Hitler's banking for him during World War II. In 1943 the bank was seized by the U.S. government under the Trading With the Enemy Act but Bush himself was never prosecuted. "[E]ven after America had entered the war and when there was already significant information about the Nazis' plans and policies, he worked for and profited from companies closely involved with the very German businesses that financed Hitler's rise to power. It has also been suggested that the money he made from these dealings helped to establish the Bush family fortune and set up its political dynasty. Remarkably, little of Bush's dealings with Germany has received public scrutiny, partly because of the secret status of the documentation involving him." Instead he went on to be a U.S. senator, the father of one awful president and the grandfather of the worst president in American history. The U.S. has a real problem with accountability-- at least when it comes to our elites.

A NY Times editorial, Too Big To Indict, states it as clearly as anyone could in it's very first sentence: "It is a dark day for the rule of law." It was decided by the Justice Department that if HSBC were prosecuted as a criminal enterprise, which it clearly was, and still is, the bank would collapse, which would cost tens of thousands of jobs and threaten the financial system.

Clearly, the government has bought into the notion that too big to fail is too big to jail. When prosecutors choose not to prosecute to the full extent of the law in a case as egregious as this, the law itself is diminished. The deterrence that comes from the threat of criminal prosecution is weakened, if not lost.

...Yet government officials will argue that it is counterproductive to levy punishment so severe that a bank could be destroyed in the process. That may be true as far as it goes. But if banks operating at the center of the global economy cannot be held fully accountable, the solution is to reduce their size by breaking them up and restricting their activities-- not shield them and their leaders from prosecution for illegal activities.

In his Guardian column this morning, Glenn Greenwald, was even more outraged than the Times editors, comparing the sweetheart deal HSBC got with the dehumanizing brutality of the U.S. "justice" and prison system for ordinary people.

[N]ot everyone is subjected to that system of penal harshness. It all changes radically when the nation's most powerful actors are caught breaking the law. With few exceptions, they are gifted not merely with leniency, but full-scale immunity from criminal punishment. Thus have the most egregious crimes of the last decade been fully shielded from prosecution when committed by those with the greatest political and economic power: the construction of a worldwide torture regime, spying on Americans' communications without the warrants required by criminal law by government agencies and the telecom industry, an aggressive war launched on false pretenses, and massive, systemic financial fraud in the banking and credit industry that triggered the 2008 financial crisis.

...The US government is expressly saying that banking giants reside outside of - above - the rule of law, that they will not be punished when they get caught red-handed committing criminal offenses for which ordinary people are imprisoned for decades. Aside from the grotesque injustice, the signal it sends is as clear as it is destructive: you are free to commit whatever crimes you want without fear of prosecution. And obviously, if the US government would not prosecute these banks on the ground that they're too big and important, it would-- yet again, or rather still-- never let them fail.

But this case is the opposite of an anomaly. That the most powerful actors should be immunized from the rule of law-- not merely treated better, but fully immunized-- is a constant, widely affirmed precept in US justice. It's applied to powerful political and private sector actors alike. Over the past four years, the CIA and NSA have received the same gift, as have top Executive Branch officials, as has the telecom industry, as has most of the banking industry. This is how I described it in With Liberty and Justice for Some:

"To hear our politicians and our press tell it, the conclusion is inescapable: we're far better off when political and financial elites-- and they alone-- are shielded from criminal accountability.

"It has become a virtual consensus among the elites that their members are so indispensable to the running of American society that vesting them with immunity from prosecution-- even for the most egregious crimes-- is not only in their interest but in our interest, too. Prosecutions, courtrooms, and prisons, it's hinted-- and sometimes even explicitly stated-- are for the rabble, like the street-side drug peddlers we occasionally glimpse from our car windows, not for the political and financial leaders who manage our nation and fuel our prosperity.

"It is simply too disruptive, distracting, and unjust, we are told, to subject them to the burden of legal consequences."

That is precisely the rationale explicitly invoked by DOJ officials to justify their decision to protect HSBC from criminal accountability. These are the same officials who previously immunized Bush-era torturers and warrantless eavesdroppers, telecom giants, and Wall Street executives, even as they continue to persecute whistleblowers at record rates and prosecute ordinary citizens-- particularly poor and minorities-- with extreme harshness even for trivial offenses. The administration that now offers the excuse that HSBC is too big to prosecute is the same one that quite consciously refused to attempt to break up these banks in the aftermath of the "too-big-to-fail" crisis of 2008, as former TARP overseer Neil Barofsky, among others, has spent years arguing.

...Having the US government act specially to protect the most powerful factions, particularly banks, was a major impetus that sent people into the streets protesting both as part of the early Tea Party movement as well as the Occupy movement. As well as it should: it is truly difficult to imagine corruption and lawlessness more extreme than having the government explicitly place the most powerful factions above the rule of law even as it continues to subject everyone else to disgracefully harsh "justice." If this HSBC gift makes more manifest this radical corruption, then it will at least have achieved some good.