Sen. Warren demands investigation into lack of post-crisis prosecutions

Sen. Elizabeth Warren (D-Mass.) is demanding answers as to why the Department of Justice failed to pursue criminal prosecutions for activities associated with the Great Recession of 2008.

On Sept. 15, the eighth anniversary of the recession-ushering Lehman Brothers bankruptcy, Warren wrote to the Department of Justice’s Office of the Inspector General seeking an investigation into the enforcement agency’s “inability to prosecute any of the individuals referred to the agency by the Financial Crisis Inquiry Commission for potential law-breaking related to the 2008 financial crisis.”

The FCIC, an independent, 10-member panel of private citizens, was established as part of the Fraud Enforcement and Recovery Act, passed by Congress in 2009. It was given a mandate to “examine the causes, domestic and global, of the current financial and economic crisis in the United States.” The FCIC's 633-page report, released in January 2011, determined that “dramatic breakdowns of corporate governance, profound lapses in regulatory oversight, and near fatal flaws in our financial system.. . . [and] that a series of choices and actions led us toward a catastrophe for which we were ill prepared.” One month later, the FCIC, having completed its statutory requirements, disbanded.

Recently-released documents show that the FCIC referred nine individuals and 14 corporations to the Justice Department in 2010 based on “serious indications of violation” of federal securities or other laws. None of these individuals or corporations were criminally prosecuted.

 "The outcome of the referrals by the FCIC to the DOJ represents an abysmal failure,” Warren wrote in a letter to DOJ Inspector General Michael E. Horowitz. “It means that key companies and individuals that were responsible for the financial crisis and were the cause of substantial hardship for millions of Americans faced no criminal charges. This failure is outrageous and baffling, and it requires an explanation.”

In March 2016, the National Archives released large portions of the Commission's records for the first time. This release contained thousands of files: 500 boxes of documents and 13 terabytes of data. A review conducted by Warren’s staff identified 11 separate referrals of individuals or corporations to the Justice Department in cases where the FCIC found “serious indications of violation[s]” of federal securities or other laws. Nine individuals were implicated in these referrals (two were implicated twice).

“Not one of the nine has gone to prison or been convicted of a criminal offense,” Warren wrote. “Not a single one has even been indicted or brought to trial. Only one individual was fined, in the amount of $100,000, and that was to settle a civil case brought by the SEC. A second individual recently agreed to a civil settlement with the SEC in which he admitted no wrongdoing and paid no personal fine.”

Similarly, FCIC referrals identified potentially illegal activity at 14 corporations (including five that were implicated in multiple referrals). Not one of the 14, or any of the individuals responsible for potential wrongdoing at these corporations, was criminally indicted or brought to trial. Five of these 14 corporations settled with Justice Department, paying fines but suffering no additional consequences. Of the remaining nine, some were investigated or reached civil settlements, but none suffered any criminal consequences for their alleged violations.

“Not every individual or company accused of a crime is guilty of that crime and not every DOJ referral results in a conviction,” Warren wrote. “But the DOJ' s failure to obtain any criminal convictions of any of the individuals or corporations named in the FCIC referrals suggests that the department has failed to hold the individuals and companies most responsible for the financial crisis and the Great Recession accountable. This failure requires an explanation.”

Among the firms named in the FCIC documents for potential violations of securities laws: Citigroup, Goldman Sachs, JPMorgan Chase, Lehman Brothers, Washington Mutual (acquired by JPMorgan), and Merrill Lynch (acquired b Bank of America), UBS, Credit Suisse, and Société Generale, PwC, credit rating agency Moody’s, insurance company AIG, and mortgage giants Fannie Mae and Freddie Mac.

Specific executives (serving at the time of alleged firm illegalities) that the FCIC referred to the Justice Department: Fannie Mae CEO Daniel Mudd and CFO Stephen Swad; AIG CEO Martin Sullivan and CFO Stephen Bensinger; Merill Lynch CEO Stan O’Neal and CFO Jeffrey Edwards; and CEO Chuck Prince, CFO Gary Crittenden, and Board Chairman Robert Rubin of Citigroup.

In a separate letter, Warren also asked FBI Director James Comey to take the unusual step of releasing “any and all materials related to the FBI' s investigations and prosecutorial decisions regarding these referrals.”

“The DOJ's inability to obtain meaningful convictions or settlements in the vast majority of these FCIC referrals—let alone in any other cases involving senior Wall Street executives—suggests that the Department failed to hold the individuals and companies most responsible for the financial crisis and the Great Recession accountable. Releasing additional information may help in the examination of this failure,” she wrote.