Bank of America Settlement Only Proves Invincibility of Wall Street

It's not nothing, say critics, but the U.S. government's announced $16.65 billion settlement with Bank of America announced on Thursday--so far the largest associated with the Wall Street-fueled mortgage malpractice that led to the 2008 financial meltdown--is more stage-acting than justice and more business-as-usual than real punishment.

Presented to the public as a victory for the Justice Department who negotiated the deal on behalf of the government, details of the BofA settlement--as with previous high-profile agreements with Citibank and JPMorgan--offer a clear view of how large banks have avoided responsibility for the behavior that sent the global economy into a tailspin just six years ago. Much of the money--as much as $7 billion of it--is not paid in cash as a fine, but is instead included as "soft money" in which banks are credited for writing down existing mortgages. Other large portions of the settlement are allowed to serve as business expenses which allows the banks to exploit them as tax write-offs.

Speaking with the New York Times about the settlement, Phineas Baxandall, an analyst with the public advocacy group U.S. PIRG, said, "The American public is expecting the Justice Department to hold the banks accountable for its misdeeds in the mortgage meltdown. But these tax write-offs shift the burden back onto taxpayers and send the wrong message by treating parts of the settlement as an ordinary business expense."

Following announcement of the deal, the stock price of the bank--one of the nation's largest--rose four points.

Criticizing the BofA settlement and other similar deals, William D. Cohan, a former senior mergers and acquisitions banker who has written three books about Wall Street, wrote a scathing op-ed for the Times this week in which he called out Attorney General Eric Holder for trumpeting the agreements as wild success stories. Cohan wrote:

The fact is that by settling with the big Wall Street banks for billions of dollars -- money that comes out of their shareholders' pockets -- Mr. Holder is allowing them to avoid the sunshine that Louis Brandeis wrote 100 years ago was the best disinfectant. Instead of shining the bright light on wrongdoing that took place at the Wall Street banks, Mr. Holder's settlements allow them to cover it up permanently.

And that helps no one. The American people are deprived of knowing precisely how bad things got inside these banks in the years leading up to the financial crisis, and the banks, knowing they will be saved the humiliation caused by the public airing of a trove of emails and documents, will no doubt soon be repeating their callous and indifferent behavior.

Instead of the truth, we get from the Justice Department a heavily negotiated and sanitized "statement of facts" about what supposedly went wrong. In the case of JPMorgan, the statement of facts was 21 pages but contained little of substance beyond the fact that an unidentified whistle-blower at the bank tried to alert her superiors to her belief that shoddy mortgages were being packaged and sold as securities. Her warnings went unheeded and the mortgages were packaged and sold all the same.

Critics of both the banks and the government's effort to go after them in the wake of the crisis have repeatedly said that criminal prosecutions--including the threat of prison sentences for individual bankers and executives--would be the strongest and best response to activities that have unleashed so significant and widespread pain across society.

Dean Baker, an economist and director of the progressive Center for Economic & Policy Research, in a post this week titled, Prosecutors Could Send Bankers to Jail, argued: "Knowingly packaging and selling fraudulent mortgages is fraud. It is a serious crime that could be punished by years in jail. The risk of jail time is likely to discourage bankers from engaging in this sort of behavior." Absent such a threat, Baker suggests, there is little to dissuade these banks, and those who work for them and make decisions, from acting differently.

According to Yves Smith, who runs the Naked Capitalism blog, "the dirty secret" of these agreements is that "the Administration is not just protecting the banks. It now also needs to hide how cronyistic its behavior has been."

On the various agreement now worked out between the large banks and government officials Cohan concluded, "Something tells me this is precisely the way the powers that be wanted these deals to go down. But the American people deserve -- nay, we demand -- better."