How Liberals are Getting Spun in the Mortgage Settlement Debate

The Obama administration’s record of prosecuting elite financial frauds is worse than the Bush administration’s record, which is a very large statement. This fact is demonstrated by a November report by Syracuse University’s Transitional Records Access Clearinghouse (TRAC), “Criminal Prosecutions for Financial Institution Fraud Continue to Fall.” The truth is that neither administration has prosecuted any elite CEO for the epidemic of mortgage fraud that drove the ongoing crisis, in contrast to over 1,000 elite felony convictions arising from the Saving & Loan debacle in the 1980s. Yet today's ongoing crisis caused losses more than 70 times greater than the S&L debacle, and the amount of elite fraud driving this crisis is also vastly greater. Bank CEOs leading what I call "accounting control frauds” now do so with impunity. They become wealthy through fraud, and even if they are sued civilly they almost invariably walk away wealthy with the proceeds.

The Obama Administration Prefers Politics and Propaganda to Prosecutions

Elite financial institutions officers engaged in fraud face a dramatically reduced risk of prosecution compared to 20 years ago when financial fraud was far less common. TRAC reports that the number of financial institution fraud prosecutions under Obama is less than one-half the number 20 years ago. Bush (II) was slightly better than Obama in prosecuting non-elite financial institution frauds, but both were pathetically bad.

The New York Times reported on January 23 that the administration rushed to try to reach a settlement with the five largest banks that engaged in massive foreclosure fraud so that it could take credit for it in the State of the Union (SOTU) address. The headline was “Political Push Moves a Deal on Mortgages Inches Closer.” The administration did not deny the statements made in the article, which stated:

“But a final agreement remained out of reach Monday despite political pressure from the White House, which had been trying to have a deal in hand that President Obama could highlight in his State of the Union address Tuesday night.

The housing secretary, Shaun Donovan, met on Monday in Chicago with Democratic attorneys general to iron out the remaining details and to persuade holdouts to agree with any eventual deal. He later held a conference call with Republican attorneys general. But as he renewed his efforts, Democrats in Congress, advocacy groups like and several crucial attorneys general said the deal might be too lenient on the banks.

In a bid to win support from California officials, Mr. Donovan proposed earmarking $8 billion in aid for beleaguered California homeowners, but that left other state attorneys general incensed, according to an official familiar with the negotiations.”

Though the NYT did not mention it, the facts in the article represent multiple disgraces on the administration’s part that go beyond the substance of deal. First, there is the obvious impropriety of pressuring state attorney generals (AGs) who are Democrats to approve a deal so that the President can claim credit for it in the SOTU. Second, it is disgraceful that HUD Secretary Donovan met separately with Democratic AGs. Prosecutions and suits against banks must have nothing to do with political affiliation. Holding separate meetings with AGs based on their party affiliation brings the entire system into disrepute. Third, the idea of offering California a unique earmark in order to buy AG Harris’ support for a deal is as stupid as it was offensive.

The administration, it seems, thinks that everything is about politics. As a former Department of Justice attorney, I regret the administration’s bringing the department into disgrace. I can personally assure the nation that nothing like this ever occurred during the S&L debacle in our prosecutions, civil lawsuits, and agency enforcement actions.

In his SOTU address, President Obama spoke of the need to rise above politics:

“One of my proudest possessions is the flag that the SEAL Team took with them on the mission to get bin Laden. On it are each of their names. Some may be Democrats. Some may be Republicans. But that doesn’t matter. Just like it didn’t matter that day in the Situation Room, when I sat next to Bob Gates – a man who was George Bush’s defense secretary; and Hillary Clinton, a woman who ran against me for president.

All that mattered that day was the mission. No one thought about politics. No one thought about themselves.”

The President was, of course, correct. The same logic applies to everything that government attorneys do. No one should think about politics or themselves. Unfortunately, party, politics, and the pursuit of financial contributions are controlling for the administration in its non-pursuit of the fraudulent elite CEOs that drove the ongoing crisis.

The fact that a NYT story could reveal this outrage without the authors even mentioning the impropriety of the actions described, without the administration feeling any need to respond to the impropriety, and without any scandal demonstrates how badly we have fallen as a society. While the President was reviewing drafts of a major address to the nation that emphasized that politics should never have a role in government service, two of his cabinet officers, Attorney General Holder and HUD Secretary Donovan, were devising a partisan lobbying strategy aimed at getting the state AGs to approve a disgraceful surrender to five of the nation’s largest banks. 

Have we lost our capacity for outrage?

The failure of the article to generate a scandal reflects badly on both parties. The administration’s conduct as described by the NYT article provides the perfect club to the Republican candidates, yet none of them will use it. Why? The Republican candidates could not oppose a settlement that, substantively, was so exceptionally favorable to the largest banks. Finance is the largest contributor to both parties. The only criticism in the article came from liberal Democrats (Senator Brown and Representative Miller).

The administration recognized that the only threat to the disgraceful settlement came from liberal Democrats, and so it devised a sophisticated propaganda campaign to counter this opposition. It bore fruit immediately. The day after the NYT story ran, the Center for Responsible Lending (CRL) issued a press release entitled “AGSettlement: Not Perfect, but Significant Reform of Mortgage Servicing.”

The press release was based on a friendly leak, presumably from the administration, of the terms of the settlement as of January 24, 2012. The release noted that the settlement was defective in that the amount of money the banks would pay was grossly inadequate relative to the claims being released by the federal and state governments. Another substantive defect is not contained in the written release, but it is one of the keys to the governmental surrender to the fraudulent financial CEOs who caused the crisis. It is this: The federal government does not intend to prosecute criminally the large financial firms and their senior officers who committed hundreds of billions of dollars in fraudulent mortgage originations. That figure only counts the fraudulent liar’s loans the five large banks made. The total amount of mortgage origination fraud through liar’s loans exceeds $1 trillion. The five banks’ civil liability for mortgage origination fraud is vastly larger than their civil liability for their endemic foreclosure fraud. I have explained in detail in prior articles and testimony why only fraudulent banks made material amounts of liar’s loans.

Here is how the administration successfully spun the deal to CRL:

“Banks remain accountable. While the state AGs would not be able to bring additional origination or servicing claims against the participating banks, the settlement would preserve the ability of homeowners to pursue claims against banks. Moreover, the settlement would not shield banks from prosecution related to criminal activities, claims based on mortgage securities violations, fair lending suits, or claims against MERS. Finally, the settlement would be enforceable in court by an independent monitor.”

As of January 24, the deal the administration was desperate to conclude prior to the SOTU required the state and federal governments to release civil claims for mortgage origination fraud.

The administration’s efforts to pressure the state AGs (all Democrats) to withdraw their opposition to this cynical deal to immunize expressly the largest banks from civil liability for their mortgage origination fraud and, implicitly, to immunize them from criminal liability for mortgage origination fraud failed. The administration responded to the failure through an elaborate symbolic creation of a new task force and a renewed propaganda campaign designed to neutralize liberal opposition to its proposed surrender to the largest banks. The maneuver, however, required an important substantive change in the proposed deal that reveals how bad for the public the administration’s proposed deal of January 24 was.

The administration is good at spinning, and this effort had a clever twist and a substantive change that added to its credibility. The spin has been largely successful with liberal commentators. The clever twist was adding the AG leading the opposition to the surrender, NY AG Eric Schneiderman, to the newly created working group. Schneiderman has great credibility with liberals because he blocked the administration’s proposed grants of immunity to the five large banks (which were apparently far broader and included express terms raising crippling barriers even to criminal prosecutions). The administration needed Schneiderman on the task force to grant it any credibility. The need for credibility became even more intense after Scot Paltrow’s January 20 expose in Reuters (Insight: Top Justice officials connected to mortgage banks). The article revealed that U.S. Attorney General Holder and Lanny Breuer, head of DOJ’s criminal division, had been partners at the law firm Covington & Burling, which represented many of the largest banks and had provided key legal opinions to the infamous MERS (Mortgage Electronic Registration System) that has contributed greatly to foreclosure fraud.

Schneiderman apparently recognized the great leverage he had over the administration and insisted on the modification of the deal’s release of the big banks’ civil liability for their mortgage origination fraud. The administration used Schneiderman’s willingness to serve on the new task force and the reduced grant of immunity for the big banks’ mortgage origination fraud as the centerpiece of its effort to spin liberals. It promptly leaked a description of the new proposed deal terms to several liberals – and was immediately rewarded with praise. Given the fact that Holder and Breuer have no credibility with liberals, this was an exceptional achievement that has delighted the administration. Mike Lux, who has consistently and strongly opposed the administration’s earlier proposed settlement drafts, broke the story of the substantive improvements to the deal on January 27. His story explains that two sources he trusts leaked the terms of the new deal to him. I encourage reading Lux’s entire article (Settlement Release Looks Tight), but here is the key excerpt:

“Big breaking news about the long-fought over bank settlement: senior sources high up in the negotiations have outlined the terms of the legal release. Here's what I was told:

No release on the "vast majority" of origination claims.

No release on the "vast majority" of securitization claims, including all claims of state pension funds.

According to these (two) sources, the release is almost entirely confined to robosigning cases.

Now, I haven't seen the actual language, so I can't verify all this, and I don't know what the phrase "vast majority" means. I also don't know if every player in the negotiations is 100 percent signed off on it. But I have a lot of trust in my sources that this real and that they wouldn't be trying to BS me on how narrow this is. If the language is indeed as tight as my sources are telling me, this is very big news.

All along in this battle, there have been two things progressives working on this issue have been fighting hardest for: one was that we got a broad, deep, well-resourced, and serious investigation of the big financial fraud issues that have gone down in this country over the last decade; the other was that if there was a settlement, that the legal releases the banks got was drawn as narrowly as it could be drawn, as tight as a drum. That combination, in the view of New York Attorney General Eric Schneiderman and those of us fighting by his side, would create real potential of finally holding the Wall Street bankers who wrecked our economy and abused us all accountable for their actions, and for getting a serious amount of money for writing down underwater mortgages. While there are still legitimate questions in both areas, it is looking like we may be achieving both of these huge goals.

One other big question remains in all this: with a release this narrow, will the big banks actually settle? JP Morgan Chase CEO Jamie Dimon and unnamed bank lobbyists are already threatening to walk away, and are clearly really unhappy, so that isn't clear. If they walk away, though, progressives can certainly live very well knowing that they will be prosecuted aggressively by AGs like Schneiderman, Beau Biden of Delaware, Kamala Harris of California, and hopefully others, so it's a win-win for us. My view is: anything that makes Jamie Dimon and big-bank lobbyists unhappy is good for the rest of us.”

Lux obviously recognizes that there are important outstanding questions about the proposed deal. I write to add several cautions.

1. There is no reason for granting any civil immunity on mortgage origination or securitization frauds and the grant of even limited immunity for such frauds can only create future problems.

2. The state AGs do not have the resources to investigate mortgage origination fraud. It isn’t even close. Collectively, the 50 state AGs could investigate Countrywide’s frauds if they took every investigator with expertise in financial institutions and assigned them to the case for five years.

3. The state AGs are not investigating mortgage origination fraud by major lenders.

4. The new working group will not investigate mortgage origination fraud. Obama described the task force in these words in his SOTU address:

“And tonight, I am asking my Attorney General to create a special unit of federal prosecutors and leading state attorneys general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis. This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans.”

The working group will not “investigate … abusive lending” and it will not “hold accountable those who broke the law … [by defrauding] homeowners.” It will not “speed assistance to homeowners.” It will not “turn the page on an era of recklessness” – and fraud, not “recklessness” is what prosecutors should prosecute. The name of the working group makes its crippling limitations clear: the "Residential Mortgage-Backed Securities Working Group." Attorney General Holder’s memorandum about the working group makes clear that the name is not misleading. The working group will deal only with mortgage backed securities (MBS) – not the fraudulent mortgage origination that drove the crisis (the only exception is federally insured mortgages).

Fraudulent mortgage originators engaged in fraudulent sales of the mortgages, mostly to Wall Street and, eventually, Fannie and Freddie. The administration is continuing to grant de facto immunity to CEOs at the large lenders whose massive mortgage origination frauds drove the crisis. The working group’s mandate helps confirm the administration’s continued refusal to prosecute elite mortgage origination fraud.

5. The working group is a symbolic political gesture designed to neutralize criticism of the administration’s continuing failure to hold accountable the elite frauds that drove the crisis. Neither the Bush nor the Obama administration has convicted a single elite fraud that drove the crisis. This is a national disgrace and represents the triumph of crony capitalism. Remember that the FBI warned in September 2004 that there was an “epidemic” of mortgage fraud and predicted that it would cause a financial “crisis.” There are no valid excuses for the Bush and Obama administrations’ failures. The ugly truth is that we are three full years into Obama's presidency and Holder could not find a single indictment to bring that the President could brag about in his SOTU address. Who doubts that Holder and Obama would have done so if they had anything in the prosecutorial pipeline? Why is there nothing? There are three fundamental problems which the working group has not even addressed, much less resolved.

One, criminal prosecutions of elite financial criminals have to come from investigations initiated by those with the expertise and resources to detect and investigate “accounting control fraud” (the form of fraud that can hyper-inflate financial bubbles and cause catastrophic losses and financial crises). Only the federal banking regulators have this capability. Success demands superb criminal referrals from those regulators. The central difficulty with such referrals should be that roughly 75 percent of the fraudulent mortgage loans were made by entities not regulated by the federal (or state) banking regulators. They were primarily made by mortgage bankers. Sadly, that did not prove to be the central difficulty with federal banking regulators’ criminal referrals. The federal banking regulators essentially ceased making criminal referrals last decade.

Banks will not file criminal charges against their CEOs – the people who run the accounting control frauds that produced the epidemics of mortgage fraud. Police and detectives do not investigate elite accounting control frauds. The FBI does not patrol a beat. Unless the regulatory cops on the beat (e.g., the banking regulators) make the criminal referrals, the DOJ and the FBI will never investigate or prosecute the fraud. Indeed, because accounting control fraud is inherently complex and requires specialized knowledge to recognize, the DOJ will rarely recognize it even when the facts are clear. Absent high quality criminal referrals from the banking regulatory agencies, DOJ may have episodic successes but it will fail utterly to prosecute any epidemic of elite accounting control fraud. Criminal referrals provide the road map that allows effective investigations and prosecutions.

Two, DOJ has not provided remotely enough resources to investigate the large accounting control frauds. Three, DOJ has adopted a self-serving definition of mortgage fraud that implicitly defines accounting control fraud out of existence. DOJ has violated the central rule of investigating elite white-collar crime – if you don’t look; you don’t find.

We have forgotten the successes of the past. During the S&L debacle, Congress responded to the S&L crisis, once the presidentially-ordered cover up of the scope of the crisis ended in 1989, by ordering and funding a dramatic increase in DOJ resources dedicated to prosecuting the S&L accounting control frauds that drove the second phase of the debacle. President Bush (II), President Obama, and Congress have each failed to emulate such policies. DOJ and the S&L regulators made the prosecution of the elite frauds a top priority by their deeds as well as their words. Contrast that with Holder’s press release announcing the formation of the working group:

“Over the past three years, we have been aggressively investigating the causes of the financial crisis. And we have learned that much of the conduct that led to the crisis was – as the President has said – unethical, and, in many instances, extremely reckless. We also have learned that behavior that is unethical or reckless may not necessarily be criminal. When we find evidence of criminal wrongdoing, we bring criminal prosecutions. When we don’t, we endeavor to use other tools available to us – such as civil sanctions – to seek justice.”

Holder was even more dismissive of criminality in his memorandum to the financial fraud task force officially informing it of the creation of the working group: “To the extent there was any fraud or misconduct in the RMBS market, we remain committed to discovering it….” This phrase indicates his doubt that there was any fraud – he is saying that they have not “discover[ed]” any fraud. That is a remarkable statement on three grounds. It is a statement made without any credible DOJ investigation. It is a statement contrary to all recent experience with financial crises. Accounting control frauds caused the largest losses in the Enron-era frauds and the S&L debacle. It is also extraordinary because other federal agencies have documented endemic fraud and charged many of the world’s largest financial institutions with intentionally selling loans they knew to be fraudulent through false reps and warranties.

Holder consistently emphasizes the lack of criminality. Indeed, since he has prosecuted no elite CEO involved in causing this crisis, he is actually saying that he believes this is our first Virgin Crisis. Countrywide and its ilk made millions of fraudulent mortgage loans – yet Holder thinks that Countrywide’s CEO was a victim of the fraud.

The entire working group gambit upsets me so much because it rests on such crude propaganda. Holder decided to embellish the gambit with the illusion of concrete action. Reuters reported Holder’s claims at his press conference on the working group.

“The Justice Department issued civil subpoenas to 11 financial institutions as part of a new effort to investigate misconduct in the packaging and sale of home loans to investors, Attorney General Eric Holder said on Friday.

Holder declined to provide specifics, including the names of the firms.

"We are wasting no time in aggressively pursuing any and all leads," Holder said at a news conference announcing details of a new working group to investigate misconduct in the residential mortgage-backed securities (RMBS) market, "you can expect more to follow."”

One assumes that reporters were so stunned by Holder’s audacity that they failed to challenge his claim that “we are wasting no time in aggressively pursuing any and all leads.” Let us review only the most obvious reasons why this statement is preposterous. The subpoenas are civil subpoenas, not grand jury subpoenas. There is no indication that Holder is serious even now about conducting any criminal investigation of elite banks or bankers.

The question is not whether the working group wasted a day or two in issuing civil subpoenas. The Obama administration has wasted three years before issuing these subpoenas. (The Bush administration wasted eight years. The total waste is cumulative.) Civil subpoenas are the most preliminary form of investigation. DOJ should have been issuing grand jury subpoenas to every lender making liar’s loans and every entity packaging liar’s loans no later than September 2004 when the FBI warned that there was an “epidemic” of mortgage fraud and predicted that it would cause a financial “crisis.”

The Obama and Bush administrations have consistently failed to “pursu[e] any and all leads.” The DOJ has typically failed to pursue leads against the elite officers whose frauds drove this crisis, from its failure to use grand juries to its failure to assign remotely adequate staff to investigate and prosecute frauds.  Conversely, DOJ has assigned its inadequate staff almost exclusively to non-elite mortgage fraud, has formed a “partnership” with the Mortgage Bankers Association (MBA) – the trade association of the “perps”, and has adopted the MBA’s absurd “definition” of mortgage fraud that implicitly defines accounting control fraud out of existence. How does Holder expect to get “leads” against elite frauds when he gets no criminal referrals from the banking regulatory agencies, “defines” the leading fraud perpetrators of mortgage fraud as the “victim” of mortgage fraud, conducts no credible investigation of elite frauds, takes no proactive steps to investigate (e.g., using undercover FBI investigations), makes no plea for whistleblowers to come forward with evidence on the elite frauds, and provides training for regulators, FBI agents, and AUSAs that implicitly denies the existence of accounting control fraud? I understand that he inherited a disaster and a disgrace from his predecessor, but he has made it worse.

Collectively, the Bush and Obama administrations have provided de facto impunity from the criminal laws for our largest financial firms and their elite officers who drove our crisis. DOJ has had episodic successes against financial elites not involved in creating the crisis (e.g., Madoff and a prominent insider trader). These “successes” were bittersweet. Madoff conducted a Ponzi scheme that last for decades. DOJ only learned about the scheme because Madoff confessed to his family. He only confessed because the Ponzi scheme was about to collapse. The government learned of the insider trading through a whistleblower and found key facts through electronic surveillance and “wiring” “flipped” participants in the insider trading. The insider trading fraud went on for many years and likely would have gone on for many more years without the government learning of it but for the whistleblower. Both of these frauds were elite financial control frauds, so it is bizarre that Holder simultaneously takes credit for their successful prosecution while implicitly denying that control fraud could exist in elite financial institutions in the mortgage fraud context.

The best estimate is that there were roughly two million new cases of mortgage fraud in 2006. Worse, DOJ formed a “partnership” with the Mortgage Bankers Association (the MBA) – the trade association of the “perps” and adopted the MBA’s contrary-to-fact definition of “mortgage fraud” in which the lender originating the fraudulent mortgages is always the victim of the fraud. Accounting control fraud is, implicitly, defined out of existence. The DOJ repeats this self-serving definition of mortgage fraud repeatedly, without any critical consideration. After the dominant role of accounting control fraud in the second phase of the S&L debacle and the Enron-era frauds we are faced with the conclusive assumption (unsullied by any real investigation or analytics) that the current crisis is the Virgin Crisis. Because they know that the lender is the victim, virtually every FBI agent has been assigned to investigating relatively minor mortgage frauds in which the lender is the purported victim. There has been no meaningful criminal investigation of any of the large fraudulent lenders. Given the pathetically low number of FBI agents assigned to mortgage frauds and their assignment to review staggering numbers of relatively small mortgage fraud cases there were never, remotely, adequate numbers of FBI agents to conduct a real investigation of Countrywide or Washington Mutual (WaMu). Each of these S&Ls made hundreds of thousands of fraudulent mortgage loans. Each of these S&Ls is substantially larger and more complex to investigate than Enron. Each of the S&L originated their hundreds of thousands of fraudulent mortgages by crafting perverse incentives for a vast network of mortgage brokers that induced them to commit endemic mortgage fraud. It took roughly 100 DOJ professionals several years to investigate Enron, so a comparable competent investigation of Countrywide or WaMu would require well over 100 DOJ professionals for several years. Any credible investigation of Countrywide or WaMu would have also required a group of OTS examiners to be “detailed” to work with the FBI investigation and serve as their internal experts. There is no evidence that either of these events ever occurred. Any purported FBI investigation of those massive shops was a sham.

The working group continues the sham and political symbolism at the expense of substance. Holder’s press release explained its staffing levels.

“Attorney General Holder announced that the new Working Group will consist of at least 55 Department of Justice attorneys, analysts, agents and investigators from around the country. Currently, 15 civil and criminal attorneys are part of the Working Group, along with 10 FBI agents and analysts who will be assigned to the Working Group efforts. An additional 30 attorneys, investigators and other staff around the country will join the Working Group efforts in the coming weeks. This team will join existing state and federal resources investigating similar misconduct under those authorities.”

Compare that staffing with the staffing levels we know from experience are required to be successful against elite accounting control frauds. The working group does not pass even the most generous laugh test. No one who has ever been involved in a successful, complex criminal investigation of a large organization could take it seriously.

The Settlement is too good, or too bad to be true

Lux notes that Jamie Dimon (JP Morgan Chase’s CEO) has expressed skepticism about whether the five large banks will continue to support the settlement now that its substance has been changed (assuming the accuracy of the leaks) to remove the “great majority” of the grants of immunity from civil liability and all grants of criminal immunity. The banks considered the earlier drafts of the deal that offered substantial immunity for mortgage origination fraud to be worth far more than the $25 billion they would pay in return to secure the immunity. Their civil liability exposure for mortgage origination fraud is in the hundreds of billions of dollars, so being released from both mortgage origination and foreclosure fraud for $25 billion would have been a spectacular win for the banks. Even if they received no express immunity from criminal prosecutions, it was clear that the administration was implicitly signaling that it would prosecute their mortgage origination frauds. By eliminating civil liability for mortgage origination fraud, the banks also would have made civil suits far less likely or even impossible and that would greatly reduce the risk that civil investigations would disclose criminal conduct that DOJ could not avoid prosecuting, particularly in an election year.

If the revised settlement has virtually no releases from civil liability for mortgage origination fraud and none for criminal actions, then it should be a no brainer that the deal no longer makes any sense for the banks. Their civil liability for their foreclosure fraud should be far less than $25 billion. It will be instructive to see whether the banks walk away from the deal or the government sweetens the deal for the banks by reducing the settlement amount or broadening again the releases from civil liability. If the banks sign the revised deal, as it is has been represented to Lux, then we will know that the big banks realize that they have such rotten skeletons in their foreclosure fraud closets that it is imperative that they settle the suits and prevent the civil suits from going forward and bringing the skeletons to light.

*A longer version of this post available at New Economic Perspectives.

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