Democratic and Republican Agreement: Prosecute HSBC

Apparently, Matt Taibbi and Glenn Greenwald and Matt Stoller and Howie Klein and I aren’t the only hippies who believe HSBC should be treated like any other legal person who helped drug gangs and terrorists launder money.

Both Chuck Grassley and Jeff Merkley have written Eric Holder letters complaining about this treatment.

Here’s Grassley (who, as he notes elsewhere in the letter, is the Ranking Member on the Senate Judiciary Committee and has demanded a briefing):

I write today to express my continuing disappointment with the enforcement policies of the Department of Justice (Department). On December 12, 2012, the Department entered into a Deferred Prosecution Agreement (DPA) with HSBC, a global bank that has now admitted to violating federal laws designed to prevent drug lords and terrorists from laundering money in the United States. While the Department has publicly congratulated itself for this settlement, the truth is that the Department has refused to prosecute any individual employees or the bank responsible for these crimes. This troubling lack of real enforcement will have consequences for the health of our economy and the safety and prosperity of the American people.

[snip]

In spite of this egregious criminal conduct, the DPA fails in finding the proper punishment for the bank or its employees.  Under its terms, the DPA obligates HSBC to pay $1.92 billion to the federal government, improve its internal AML controls, and submit to the oversight of an outside monitor for five years.   Despite the fact that this is a “record” settlement,  for a bank as gigantic as HSBC this is hardly even a slap on the wrist.  It only amounts to between 9 and 11% of HBSC’s profits last year alone,  and is a bare fraction of the sums left unmonitored.

[snip]

Even more concerning is the fact that the individuals responsible for these failures are not being held accountable.  The Department has not prosecuted a single employee of HSBC—no executives, no directors, no AML compliance staff members, no one.  By allowing these individuals to walk away without any real punishment, the Department is declaring that crime actually does pay.  Functionally, HSBC has quite literally purchased a get-out-of-jail-free card for its employees for the price of $1.92 billion dollars.

[snip]

Past settlements with large banks prove that they do nothing to change what appears to be a culture of noncompliance for some businesses.According to the U.S. Sentencing Commission, jail time is served by over 96 percent of persons that plead or are found guilty of drug trafficking, 80 percent of those that plead or are found guilty of money laundering, and 63 percent of those caught in possession of drugs.[6]  As the deferred prosecution agreement appears now to be the corporate equivalent of acknowledging guilt, the best way for a guilty party to avoid jail time may be to ensure that the party is or is employed by a globally significant bank  In March 2010, the Department arranged a then-record $160 million deferred prosecution agreement with Wachovia based on its laundering of more than $110 million from Colombian and Mexican drug cartels.   Officials at the time stated that “blatant disregard for our banking laws gave international cocaine cartels a virtual carte blanche to finance their operations.”   In this case, a bank escaped with a record monetary settlement and a conspicuous absence of individuals behind bars.  If the story sounds eerily similar, that’s because it is.  It happened again with HSBC. [my emphasis]

And here’s Merkley (who is on the Senate Banking Committee):

I do not take a position on the merits of this or any other individual case, but I am deeply concerned that four years after the financial crisis, the Department appears to have firmly set the precedent that no bank, bank employee, or bank executive can be prosecuted even for serious criminal actions if that bank is a large, systemically important financial institution. This “too big to jail” approach to law enforcement, which deeply offends the public’s sense of justice, effectively vitiates the law as written by Congress. Had Congress wished to declare that violations of money laundering, terrorist financing, fraud, and a number of other illicit financial actions would only constitute civil violations, it could have done so. It did not.

[snip]

According to the U.S. Sentencing Commission, jail time is served by over 96 percent of persons that plead or are found guilty of drug trafficking, 80 percent of those that plead or are found guilty of money laundering, and 63 percent of those caught in possession of drugs.[6] As the deferred prosecution agreement appears now to be the corporate equivalent of acknowledging guilt, the best way for a guilty party to avoid jail time may be to ensure that the party is or is employed by a globally significant bank. [my emphasis]

Note, unlike Lanny Breuer, both Senators mention terrorism (though Merkley seems unaware how serious HSBC’s ties to Islamic terrorist financing are).

More importantly, they sound like the rest of us dirty hippies, making the audacious argument that banks ought to be subject to laws.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

31 replies
  1. Arbusto says:

    Holder never met a case he and his couldn’t walk away from. After Chuckles and Merkley go away with their Senatorial eog stroked, this too shall pass. No hit no run no error.

  2. angry bitter drunk says:

    @seedeevee: Ya those are impressive words from Grassley and Merkley, but similar statements could have been made and stands taken long before now.

    The Taibbi piece is just brilliant, btw…

  3. orionATL says:

    should be easier now that justice roberts has assured us that corps are persons with free-speech rights, no?

    hsbc – free to be in jail

  4. FFein says:

    When my kids were growing up I used to tell them that if they ever thought about robbing a bank, they should rob BIG and not use a gun. That seems to be true. Too big to prosecute?

  5. thatvisionthing says:

    Grassley

    By allowing these individuals to walk away without any real punishment, the Department is declaring that crime actually does pay. Functionally, HSBC has quite literally purchased a get-out-of-jail-free card for its employees for the price of $1.92 billion dollars. […] If the story sounds eerily similar, that’s because it is.

    sounds eerily similar to Yves Smith’s first of her top twelve reasons the mortgage settlement deal stinks:

    http://www.nakedcapitalism.com/2012/02/the-top-twelve-reasons-why-you-should-hate-the-mortgage-settlement.html

    1. We’ve now set a price for forgeries and fabricating documents. It’s $2000 per loan. This is a rounding error compared to the chain of title problem these systematic practices were designed to circumvent. The cost is also trivial in comparison to the average loan, which is roughly $180k, so the settlement represents about 1% of loan balances. It is less than the price of the title insurance that banks failed to get when they transferred the loans to the trust. It is a fraction of the cost of the legal expenses when foreclosures are challenged. It’s a great deal for the banks because no one is at any of the servicers going to jail for forgery and the banks have set the upper bound of the cost of riding roughshod over 300 years of real estate law.

    And actually, that $2000 per loan, didn’t all or most of it get gobbled up by the states for other purposes? It’s just the government and the criminals with their hands in each other’s pockets. Friendly like. Junkie like.

  6. rg says:

    OT. Emptywheel, I thought you might like to know about this rival scatological entry. On the local PBS news program there was a discussion about whether local congressman Raul Grijalva might accept a rumored offer for the Interior Dept. The juicy part came when a Republican strategist referred to the notion as a “wet dream” for environmentalists. It was said with a straight face, and apparently there was no immediate reaction from the roundtable participants.

  7. pdaly says:

    OT: was there any development today on the Electronic Frontier Foundation’s case Jewel v. NSA?

    from EFF website not much except this blurb
    https://www.eff.org/cases/jewel

    “The court instead ruled that the case should be dismissed on standing grounds. Fortunately, in December of 2011, the 9th U.S. Circuit Court of Appeals ruled that Jewel could proceed in district court. In July, 2012, EFF moved to have the court declare that the FISA law applies instead of the state secrets privilege; in September, 2012 the government renewed its “state secrets” claims and the matter was heard by the federal district court in San Francisco on December 14, 2012.”

    I know that the Al-Haramain case was recently dealt a blow. Can the Jewel v. NSA case claw back some freedoms for US citizens?

  8. FFein says:

    @JohnT: Thank you! Made me chuckle outloud. I think cartoonists are such great communicators — a picture and just a couple words can convey really complex issues.

  9. P J Evans says:

    @rg:
    The GOP is really eager for certain D congresspeople to get appointments elsewhere in government. That says to me that it’s a really bad idea for said D congresspeople to do any such thing.

  10. Greg Bean (@GregLBean) says:

    I know it is simplistic but it appears that Holder/Obama have accepted 10% of HSBC profits, from illegal money laundering for drug cartels and terrorists, as their cut for doing fuck all.

    One might even call it ‘protection money’.

  11. thatvisionthing says:

    @P J Evans: What about too — was going to use the word “busted,” but criminal rich tbtf can’t be busted — ok, “guilty,” even when that word is nullfied but yeah we know that’s what it is — too guilty to contribute politically? Maybe just “anyone in a deferred prosecution agreement”? Their money flow is their WMD, excuse me speech, so take them out of the room and put them in a free speech pen? Dam them.

    I mean, felons can’t vote or run for office in many cases, yes? All these banks and officers are felons. I include the DOJ and AGs, because they’re in the revolving door/material support loop. Ex-AGs go on to be the corporate monitors who monitor the deferred prosecution agreements, yes? Mukasey, Gonzalez, Ashcroft all went on to become corporate monitors?

    Hey! Who’s the corporate monitor here? Has he been named? And what’s his fee?

    The DOJ isn’t going to be any help here. But if Congress is serious? Wait, where did deferred prosecution agreements come from in the first place? They’re not in the Constitution. Congress?

  12. thatvisionthing says:

    @thatvisionthing: What IS in the Constitution is “jury” — so how is this constitutional if it never goes to a jury? Senator Grassley, Senator Merkley, I’m looking at you. ?

    Article III, Section 2: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

  13. thatvisionthing says:

    Marcy has been writing about DOJ/ex-AG corporate monitor crap since at least 2008 — here she is quoting from Matt Friedman/PolitickerNJ:

    http://emptywheel.firedoglake.com/2008/02/20/what-do-chris-christie-and-john-ashcroft-have-to-hide/

    United States Attorney Christopher Christie and former Attorney General John Ashcroft will not testify in front of the House Judiciary subcommittee next week.

    The hearing, which was tentatively but not officially set for Tuesday, has been postponed until next month.

    The Judiciary Committee had asked Christie to testify about the lucrative federal monitoring contract he gave to John Ashcroft to oversee the medical implant company Zimmer Holdings, LLC. Christie had said he would testify if asked by the Justice Department.

    Justice Department spokesman Paul Bresson did not say whether his department had asked Christie to testify, or whether they were refusing to do so.

    Man, what could possibly go wrong?

    Emptywheel:

    It sure does look like they’re trying to avoid Congressional scrutiny, though. … Click through to see the sheer obstinence of Bresson’s reply (don’t want to break fair use when quoting DOJ’s crappy press office).

    I clicked.

    “I don’t know that we’d want to really have a discussion about that,” he said…

    Read more at http://www.politickernj.com/christie-won039t-testify-tuesday-16554

  14. thatvisionthing says:

    @thatvisionthing:
    Hey, are Grassley and Merkley or anyone in Congress scheduling hearings on the DOJ-HSBC material support terrorism loop? Should say, additional hearings, since Carl Levin’s Permanent Subcommittee on Investigations has already reported (53 pages of a 340 page report) on HSBC’s role in material support of terrorism. Will Levin now add the DOJ to his investigations?

    http://www.emptywheel.net/2012/12/12/lanny-breuer-covers-up-material-support-for-terrorism/

    In short, Lanny Breuer and his prosecutors did not mention that this bank they were letting off without prosecution provided a terrorist-connected bank with US dollars for years.

    Rather than prosecute HSBC for helping a bank with ties to al Qaeda get US dollars that might be more easily used in terrorist attacks, Lanny Breuer is slapping them on the wrist and pretending the terrorist financing aspect of HSBC’s violations doesn’t even exist.

  15. thatvisionthing says:

    @Greg Bean (@GregLBean): Right, see comment thread in Marcy’s post from 2010: Bhopal Justice, Sort Of. A lot of gray text, but the questions and issues may be worthwhile wading to revisit. I put one line in bold because I think that’s what it all boils down to.

    I said:

    http://emptywheel.firedoglake.com/2010/06/08/bhopal-justice-sort-of/#comment-241562

    In fact, the way laws are going now, what with corporations not having to admit guilt for property damage and maimings and disablings and deaths, and instead being put on (wink wink) corporate monitoring where they pay sweet fines and then sweet fees to corporate monitors (which is where old AGs go when they move on to sweeter places; e.g., Ashcroft, Mukasey), it’s just such a sweet loop, I bet BP can’t wait to get charged with a crime and the government can’t wait to charge them. BP: Bed partners.

    A question I raised in the earlier diary is, who is BP’s corporate monitor for their Alaska and Texas open cases? Is this a knowable unknown?

    and bmaz replied with this distinction:

    http://emptywheel.firedoglake.com/2010/06/08/bhopal-justice-sort-of/#comment-241731

    They are on Federal criminal probation, they have a probation officer, not a civil monitor.

    I asked bmaz a lot more questions then, but comments closed without an answer. They all seem potentially relevant here. More links in original than here:

    http://emptywheel.firedoglake.com/2010/06/08/bhopal-justice-sort-of/#comment-241830

    A few questions:

    – What’s the difference between a probation officer and a corporate monitor? Can DOJ outsource probation officing to a private party? In which case, same thing? I’m making that up, but it seems a fair suspicion, and I wonder if the probation officer is known? Per Lichtblau’s article:

    In many cases, the name of the monitor and the details of the agreement are kept secret.

    – How is it decided to charge a case civilly OR criminally? 1) How did BP even get charged criminally here–twice? An oil company charged by the Bush DOJ, what could be more perfect for a corporate monitor? 2) I would think there should still be a civil hook open to hang BP on, or said another way, a lucky sweetheart payola chip still to be played.

    – I read through your original post ( http://emptywheel.firedoglake.com/2010/05/03/bp-oil-slick-the-result-of-republican-doj-and-regulatory-policy/ ) again this morning and got as far as Mary’s comment:

    [bmaz – wasn’t it a deferred prosecution boondoggle deal that gave Gonzales some of his only work since leaving office?]

    Is Gonzalez a corporate monitor (deferred prosecution) too? I thought he had been left out of the club. What deal?

    Also the big picture you paint in that story is that BP has captured regulators (but not Congress?) and DOJ is protecting that scam even when it breaks the law to do so (per EPA investigator Scott West’s letter that DOJ obstructed his investigation and imposed illegally low fines). Come on, where’s the check and balance? It’s crazy, where is it? Can an outside group like the ACLU or NRDC sue? (Who has standing?) I expect nothing from Obama and Holder, which is a separate shame in itself. Both you and Jason Leopold noted that since BP failed probation in Texas and Alaska, they should still be open for renewed or new criminal charges…and then you both laughed at the thought that that would ever happen. Well, damn it, there must be a way–?

    Thanks.

    (I’m with OrionATL):

    bmaz

    you can’t stop here.

    you’ve just given us chapter 1 of this mystery.

    this has the feel off a major story.

    you can’t leave us not knowing the political origins of the doj sweetheart settlements.

    who ordered them?

    who got paid?

    in what currency and how much?

    this could be a major story, one that might force holder to get off his ass and act like an attorney general.

    i’m gonna be waitin’ for chapter 2!

    And finally, from looking at the Alaska sentencing order:

    Also, is this usual for a court document? p. 1 the signature of the judicial officer is redacted — wtf?

  16. P J Evans says:

    OT, sort of:
    Rmoney’s campaign is billing the media for the food and so forth provided by the campaign. More accurately, because they ran the campaign incompetently, they’re overbilling the media. Seven or eight hundred dollars for a meal. Reports are that the meals were generally far more food than was even wanted, because the groups in Rmoney’s campaign organization weren’t talking to each other enough.

  17. thatvisionthing says:

    Thinking more. If Merkley or Grassley or Levin — anyone in Congress, really — is serious about laws being laws, then unless they clean up the DOJ and put an end to deferred prosecution agreements and nonprosecution agreements, every law they write is just feeding the junkie. And in this case the laws they give the DOJ to “enforce” are being used as material support for terrorism, which I think by the transitive property of material support makes Congress terrorists too, right? (Congress-DOJ-HSBC-AlQaeda)

    http://www.emptywheel.net/2012/12/12/lanny-breuer-covers-up-material-support-for-terrorism/

    HSBC had ties to a crime that DOJ currently has someone sitting in prison for, and is still pursuing at the appellate level. Yet not only didn’t DOJ indict HSBC for that crime, but they don’t even think HSBC’s role in it is worth a mention.

    Congress isn’t doing oversight, isn’t an innocent bystander — it’s in the loop.

  18. emptywheel says:

    @thatvisionthing: And the crazy thing is after Dems beat up Christie for DPAs, Holder’s DOJ has done far far more, and for far more egregious crimes.

    I don’t know what Lanny Breuer is doing after he leaves govt. But I do know he will be enormously wealthy.

  19. emptywheel says:

    @thatvisionthing: Levin actually issued a fairly pathetic release on the HSBC settlement:

    In an age of international terrorism, drug violence, and organized crime, stopping illicit money flows is a national security imperative. Global banks have global responsibilities to prevent participation in illicit or suspect transactions. The HSBC settlement sends a powerful wakeup call to multinational banks about the consequences of disregarding their anti-money laundering obligations. It also shows the value of congressional oversight in exposing wrongdoing and the ongoing need to hold banks accountable.

  20. thatvisionthing says:

    @emptywheel: Right, I was just coming back to post this, it’s the same thing, Masaccio linked to it on FDL:

    http://abcnews.go.com/Blotter/hsbc-pay-record-19-billion-settle-money-laundering/story?id=17934134

    “The HSBC settlement sends a powerful wake-up call to multinational banks about the consequences of disregarding their anti-money laundering obligations,” said Sen. Carl Levin (D-Mich.), whose investigative subcommittee first aired concerns about HSBC’s actions in hearings earlier this year.

    So scratch Levin (or maybe say he is scratched, backwise? Does he get HSBC support?).

    Pathetic is right.

  21. thatvisionthing says:

    Al Jazeera (!) interviews Jeffrey Robinson, author of The Laundrymen. Raises interesting question about grand jury. Also pain by Bruce:

    http://youtu.be/8gZ6_-BU0Wo?t=2m22s

    Interview: Jeffrey Robinson on HSBC fine for money-laundering

    […]

    KIMBERLY HALKETT, AL JAZEERA: And HSBC, though, has said, for its credit, has said that, you know, “that was then, this is now. It’s a very different company now. We’ve put internal controls into place to make sure this doesn’t happen again.” I mean, isn’t that demonstration at least that the company is trying to change its behavior?

    JEFFREY ROBINSON: Oh, sure, and when I rob your bank and they come and catch me, I’ll say, “You know what, guys? It was only one time. That was then, this is now. I won’t rob any banks any more.” No! It doesn’t work like that! The people who committed this crime need to be held accountable.

    And when you look at what the Justice Department has done, you have all sorts of questions. First of all, did they have a grand jury? Did they pull a grand jury to indict them criminally and simply not announce that? If they did, why didn’t they announce it, why didn’t they charge criminal charges? If they didn’t convene a grand jury, why not? I mean, the idea of a deferred prosecution, which is what this is, they have said to the bank, “Okay, this is now. We will defer the prosecution of the criminal charges and you have to be a good boy from now on, and we will fine you 1.9 billion dollars.” Now that sounds like a lot of money, and to you and me it probably is. To HSBC, where the value of the bank is $190 billion, that represents 1% of the market value of HSBC. That doesn’t hurt. That does not hurt them. Now, if you’re going to inflict pain to change behavior, this is not the way to do it.

    KIMBERLY HALKETT, AL JAZEERA: But won’t it be painful, the fact that it will be subject to further scrutiny and perhaps punitive action if it doesn’t continue to comply with the conditions of this settlement?

    JEFFREY ROBINSON: Rob a bank and try and get away with that excuse. It does not work. They have committed a criminal act. What’s more, in fining the bank this $1.9 billion, the markets themselves were expecting a much more serious reaction, and you can tell that because when it was announced in London this morning, HSBC shares ticked up just a little bit. They should have died. They didn’t. The market was expecting worse. They figured, “Whew! They certainly dodged this bullet and we’ll stick with them in the share markets.”

    KIMBERLY HALKETT, AL JAZEERA: So are you saying that it’s not likely to have any impact moving forward on HSBC?

    JEFFREY ROBINSON: None whatsoever. Because when you fine these guys, look at what happened – you know, this is one of a series of things that happened in the past few years. ING’s been done, Standard Charter’s been done, Wachovia before it. When you fine these guys, you don’t change their behavior. The fine is simply the cost of doing business. What changes the banker’s behavior is when you put him in an orange jumpsuit and you lock him in a 6×4′ cell with a guy named Bruce who’s got two fang tattoos on the side of his neck. That gets his attention.

  22. thatvisionthing says:

    @emptywheel: re tbtf and Levin’s “powerful wakeup call to multinational banks” — On Democracy Now, Matt Taibbi pointed out how it’s actually destructive of global finance:

    http://www.democracynow.org/2012/12/13/matt_taibbi_after_laundering_800_million

    AMY GOODMAN: Now, how did Forbes put it, Matt? “What’s a bank got to do to get into some real trouble around here?”

    MATT TAIBBI: Exactly, exactly. And what’s amazing about that is that’s Forbes saying that. I mean, universally, the reaction, even in—among the financial press, which is normally very bank-friendly and gives all these guys the benefit of the doubt, the reaction is, is “What do you have to do to get a criminal indictment?” What HSBC has now admitted to is, more or less, the worst behavior that a bank can possibly be guilty of. You know, they violated the Trading with the Enemy Act, the Bank Secrecy Act. And we’re talking about massive amounts of money. It was $9 billion that they failed to supervise properly. These crimes were so obvious that apparently the cartels in Mexico specifically designed boxes to put cash in so that they would fit through the windows of HSBC teller windows. So, it was so out in the open, these crimes, and there’s going to be no criminal prosecution whatsoever, which is incredible.

    […]

    JUAN GONZÁLEZ: And is it too big to be indicted?

    MATT TAIBBI: The amazing thing about that rationale is that it’s exactly the opposite of the truth. The message that this sends to everybody, when banks commit crimes and nobody is punished for it, is that you can do it again. You know, if there’s no criminal penalty for committing even the most obvious kinds of crimes, that tells everybody, investors all over the world, that the banking system is inherently unsafe. And so, the message is, this is not a move to preserve the banking system at all. In fact, it’s incredibly destructive. It undermines the entire world confidence in the banking system. It’s an incredible decision that, again, is met with surprise even with—by people in the financial community.

    Don’t know if Levin watches Democracy Now.

  23. thatvisionthing says:

    Also, about the fine, again eerily similar @8…

    JUAN GONZÁLEZ: And, of course, the way that big banks these days can borrow money from the U.S. Fed for no interest—

    MATT TAIBBI: For free.

    JUAN GONZÁLEZ: For free.

    MATT TAIBBI: Free.

    JUAN GONZÁLEZ: Basically, they can just take money from the government and pay the government back.

    In this case, HSBC is a British bank, or do you say British multinational bank? Do they have a custom-made box that fits the Fed window like all our TBTFs?

  24. thatvisionthing says:

    @emptywheel:

    I don’t know what Lanny Breuer is doing after he leaves govt. But I do know he will be enormously wealthy.

    I was thinking of the DC judge and his band name, made me laugh — Deaf Dog and the Indictments — I was thinking it could be Holder and the Laundrymen. But Lanny and the Laundrymen sounds better. Sounds perfect.

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