When JPMorgan Chase agreed to settle mortgage-related securities claims for a record-breaking $13 billion last fall, the deal was hailed in many corners as a historic breakthrough. In some ways, it was. After much delay and apparent reluctance to prosecute the “too big to fail” banks for their fraudulent activities in the months leading up to the 2008 crash, it seemed the Justice Department was finally showing some spine. Using the threat of a strong civil complaint as leverage, federal and state officials negotiated a landmark agreement with JPMorgan that included $9 billion in shareholder cash and $4 billion in mortgage relief.
As William Cohan notes in his expertly reported piece in this issue (see “Jamie Dimon’s $13 Billion Secret”), the Justice Department is using the JPMorgan settlement as a template for similar negotiations with other Wall Street firms. The threat of a civil suit enabled officials to extract $7 billion from Citigroup in a mortgage settlement announced July 14, which included $2.5 billion to assist troubled homeowners. Bank of America is on the brink of signing a deal worth up to $17 billion to resolve investigations into its pre-crash mortgage business, with more than $7 billion in “soft dollar” relief to consumers. And several other big banks that feasted on the mortgage frenzy—including Morgan Stanley, Deutsche Bank and Goldman Sachs—are reportedly waiting in the wings.
While it’s heartening to see the government score such big wins for taxpayers, the Justice Department’s strategy is fundamentally flawed. For starters, those record sums are misleading: JPMorgan’s $9 billion cash penalty is a pittance compared with the $2.4 trillion in total assets the firm reported at the end of 2013—and the money comes from the bank’s coffers, not the bankers’ pockets. When it comes to mortgage relief, the bank has a direct interest in protecting its borrowers from defaulting on their loans. Plus more than half of the settlement is tax-deductible, meaning taxpayers will pick up part of the tab.
JPMorgan is also benefiting from a lack of transparency and follow-through. The arrangement obligates the firm to cover the costs of principal reductions, loan modifications and neighborhood redevelopment. But if the settlement was designed in part to assist those hurt most by the collapse of the subprime market, why did a national group of community organizations led by the Home Defenders League have to file a Freedom of Information Act request in July for a status report on the bank’s compliance? Nearly nine months after the deal was announced, it is not at all clear who qualifies for relief, who’s getting it or what form it’s taking—and the Justice Department is not demanding any answers. New York Attorney General Eric Schneiderman doesn’t even have control over the $613 million he secured for his state, which has been diverted to a general fund jointly managed by Governor Andrew Cuomo and the Legislature.
The most striking flaw in the JPMorgan settlement is the absence of accountability. The anodyne “statement of facts” that accompanied the agreement does not include names or any admission that laws were broken. No one has been indicted or arrested, and no criminal charges are on the horizon. That $13 billion penalty, in other words, is just another cost of doing business.
In the end, the kind of legal and social punishment that would deter the criminality that ran rampant on Wall Street before the crash is not inflicted by a financial penalty, no matter how steep. It is created when bankers are forced to pay out of their own pockets for the frauds they’ve committed, and when they are publicly shamed, prosecuted and put behind bars. Personal accountability—in the form of criminal prosecution and the disgorgement of ill-gotten gains—is the only way to convince Wall Street titans like Jamie Dimon that crime doesn’t pay. To date, the Obama administration and the state attorneys general have failed miserably in fulfilling this public responsibility.