10 Highlights From Frontline Report On Why No Wall Street Execs Are In Jail Over Mortgage Mess

Assistant Attorney General Lanny Breuer has been accused by some of being overly fearful of prosecuting big banks.

Assistant Attorney General Lanny Breuer has been accused by some of being overly fearful of prosecuting big banks.

Last night, PBS’ Frontline looked at a question many Americans have asked — Why have no top Wall Street executives been prosecuted for their part in the 2008 financial crisis? — and took it right to man at the Justice Dept. who isn’t bringing those charges.

You can watch the entire show — broken up into four segments — below, and there are a ton of supporting materials and content available on the Frontline website. But for those who just want to get a run-down of the episode, here are some highlights:

1. Former Countrywide exec realizes that maybe his company’s lending policies are a bit lax
Only months after starting at Countrywide in 2005, Michael Winston saw a car in the parking lot with a plate reading “FUND EM.” Here is his recollection of the conversation he had with a co-worker –
Winston: “‘FUND EM’… That’s an interesting plate. What do you suppose that means?”
Co-worker: “That’s [Countrywide CEO] Angelo Mozilo’s growth strategy… We have a loan for every customer.”
Winston: “A loan for every customer. How can that be? What if the person doesn’t have a job?”
Co-worker: “Fund ‘em.”
Winston: “What if he has no income?”
Co-worker: “Fund ‘em.”
Winston: “What if he has no assets?”
Co-worker: “Fund ‘em.”
Winston: “What are the criteria you use to make lending decisions?”
Co-worker (smiling): “If they can fog a mirror we’ll give them a loan.”

2. Interviews with due diligence underwriters reveal how lenders knowingly ignored fraud.
Before banks buy up bundles of mortgages made by other lenders, they send teams of due diligence underwriters to review the files and make sure they aren’t buying piles of radioactive mortgages.

Tom, a due diligence supervisor who would go on to become a whistle-blower, recalls his underwriters laughing and comparing stories as they came across mortgages that were obviously problematic.

“Here’s a guy that’s moving from $500 rent to a $650,000 house, and he’s an electrician and his wife’s a waitress — HA HA HA — everyone in the room laughing,” he says.

In cases where it was obvious that the lender had made a mistake or that fraud had occurred during the approval process, the underwriters say there were forbidden from calling it by its real name.

“We couldn’t say the word ‘fraud’ because we couldn’t prove that it was fraud,” explains another underwriter, who says she and her co-workers were repeatedly told to never use that word. “Even if we suspected, we had to say ‘This appears to be… incorrect.’ You would never say ‘fraudulent’.”

Tom says that when due diligence teams would tell their contacts at the bank about high levels of defective loans — such as one bundle where the defect rate was around 50% — “Everything got… renegotiated and redone.”

In spite of the fact that Tom has been a whistle-blower in private lawsuits against banks, he says he was only recently contacted by anyone from the Dept. of Justice.

3. The Citi Exec who tried to warn everyone the sky was falling.
As the housing bubble began to swell, Richard Bowen, a former Senior VP and chief underwriter in Citi’s commercial lending group, responsible for purchasing $90 billion/year in mortgages from other lenders, noticed that “approximately 60% of these loans did not meet” the bank’s credit policy guidelines.

As the volume of mortgages increased through 2007, the rate of defective mortgages increased from 60% to in excess of 80%.

In November 2007, Bowen tried to alert Citi higher-ups, including then-chairman, and former Secretary of the Treasury, Robert Rubin, to the breakdowns in Citi’s internal controls. He requested an outside investigation, and pleaded for the executives to call him ASAP.

Bowen heard nothing back, so he tried again a month later. “I said, ‘Please, contact me! You need to know the details behind this,” he recalls.

Bowen, who was demoted before ultimately leaving the company, testified before lawmakers about his failed efforts. Citi has since admitted to some wrongdoing in various civil actions, but not a single top executive has been indicted on criminal charges.

4. How an oddball Senator from Delaware tried to goad the DOJ into properly investigating Wall Street.
Ted Kaufman had been appointed to the U.S. Senate in 2009 to fill the seat vacated by new Vice President Joe Biden. He had no intention of seeking re-election, and didn’t care about what Wall Street thought of him. So who better to be the one to push investigators to take a hard look at big banks?

After the DOJ failed to successfully prosecute a pair of Bear Sterns hedge fund managers, there were rumblings that investigators had become gun-shy about going after employees at another big bank.

So in 2009, Kaufman announced he was convening an oversight committee to see what exactly the DOJ was doing with regard to its investigation into Wall Street’s involvement in the mess.

“They started telling me about this great thing they had out in California, this web to catch the mortgage brokers who had given out the loans,” he recalls about an early meeting with investigators. “I made it clear to them — absolutely positively — This is not about L.A., this is totally about what went on on Wall Street. That’s what the bill says and that’s where the emphasis is.”

And, what do you know, one week before the hearing was to convene, the Obama administration suddenly announces the creation of the Financial Fraud Enforcement Task Force, which claimed that it would not hesitate to bring charges, where appropriate, against any level of the financial world.

“The only reason that fraud task force was announced at that point was because someone had to go to the hearing,” says Kaufman.

Unfortunately, though investigators talked a good game in the early going, the Task Force has not resulted in a single high-level prosecution tied to the 2008 crash.

5. The DOJ Prosecutor tries to explain the lack of Wall Street indictments
In spite of documents and testimony uncovered by private lawsuits and investigators for the Financial Crisis Inquiry Commission that would seem to point to rampant fraud at high levels of many banks, the DOJ has not sought a criminal indictment against any executives.

So Frontline asked Lanny Breuer, the Assistant Attorney General who should be prosecuting these offenses, why no criminal cases have come to fruition.

“We have to prove beyond a reasonable doubt — not a preponderance, not 51% — beyond any reasonable doubt that a crime was committed,” explains Breuer. “If we can not establish that, that we can not bring a criminal case.

“But we don’t let these institutions go. We’ve brought civil cases. We’ve brought regulatory cases and the entire approach here is to have a multi-pronged, comprehensive approach to what gave to the financial crisis.”

As for criticisms that his office has not made prosecuting Wall Street a priority, he responds, “I made it an incredibly top priority. But when we can’t bring a case, we have an ethical obligation not to bring those cases. But it’s not for lack of trying. Our lawyers are working incredibly hard and it’s a disservice for anyone to suggest otherwise.”

Frontline confronted Breuer with claims made by former lawyers in his office who claimed the prosecutor was overly fearful of losing a high-profile case, and that Breuer’s office had begun no investigations into Wall Street, had issued no subpoenas, reviewed no documents, nor requested any wiretaps.

“We have looked hard at the very types of matters you’re talking about,” says Breuer.

In an attempt to demonstrate that his office is not afraid of tackling Wall Street, Breuer points to the prosecution of Raj Rajaratnam on insider trading charges.

When Frontline’s Martin Smith points out that this case has nothing to do with the financial crisis of 2008, Breuer replies, “The financial crisis is multifaceted, and what we’ve had is a multi-pronged, multifaceted response. And it’s simply a fiction to say that where crimes were committed we didn’t pursue those cases… You have more people in jail today for securities fraud and bank fraud than ever before.”

But not a single Wall Street executive.

6. The moment an optimist gave up hope of ever seeing justice.
Before leaving office, Sen. Kaufman convened a hearing to see what exactly Breuer and his colleagues had been up to. At the hearing, the prosecutor did not seem to show any urgency in going after Wall Street executives.

“At that point, I just began to feel like ‘I’m being gamed here,'” recalls Jeff Connaughton, Kaufman’s former Chief of Staff and author of the book The Payoff. “Not only was no one going to be held to account for the financial crisis, but… no one was going to be held to account for the failure to hold Wall Street to account.”

7. Documentary maker wonders why he’s not having trouble finding whistle-blowers
Director Nick Verbitsky’s documentary, Confidence Game, features candid interviews with former Bear Stearns employees who have since gone on to become whistle-blower witnesses in private lawsuits against the bank.

“The ease with which I found these people and the things that they were telling me — it wouldn’t have taken a lot of effort on the part of a regulatory entity in Washington to have done this,” says Verbitsky. “What have you guys been doing? I went out and found these people in my spare time, basically.”

He says it wasn’t until a year after the public learned of his film that he was contacted by the DOJ.

8. Breuer dismisses Frontline’s ability find reliable sources
When Frontline’s Smith asks Breuer about why the DOJ is having such a problem bringing indictments when whistle-blowers seem to be readily available, the prosecutor almost loses his temper.

“I don’t accept for one moment that you all are finding whistle-blowers that we’re not,” he declares emphatically, eliciting a startled response from Smith. “What I do believe is that when we speak to the whistle-blowers we have to make a determination as to whether what they say is really a criminal case.”

9. Breuer explains why it’s okay for him to worry about the welfare of banks
In 2012, Breuer spoke at the New York Bar Association and mentioned that he loses sleep at night thinking about the impact a high-profile lawsuit could have on financial institutions.

“Is that really the job of a prosecutor — to worry about anything other than simply pursuing justice?” asks Smith.

To which Breuer responds, “I think I am pursuing justice… 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 the case against Institution A and as a result of that case there’s some huge economic effect — if it creates a ripple effect so that suddenly counter-parties and other financial institutions or other companies that have nothing to do with this are affected badly, it’s a factor we need to know and understand.”

Kaufman says Breuer never once discussed this concern with him during any of their meetings: “That is not the job of a prosecutor, to worry about the health of the banks, in my opinion. The job of the prosecutor is to prosecute criminal behavior. It’s not to lie awake at night and decide the future of the banks.”

10. Have Wall Street execs finally dodged prosecution?
While there have been numerous civil and regulatory actions against banks, these suits do not single out individuals within the institutions, and there don’t appear to be any criminal charges coming down the pike.

Attorney David Boies, who has represented both plaintiffs and defendants in suits against banks, says that while financial institutions may continue to be put through the lawsuit mill for a while, “There are probably a lot of individuals who have breathed sighs of relief over the last two or three years.”

Watch The Untouchables on PBS. See more from FRONTLINE.

Watch The Untouchables on PBS. See more from FRONTLINE.

Watch The Untouchables on PBS. See more from FRONTLINE.

Watch The Untouchables on PBS. See more from FRONTLINE.