Grassley Q & A- “Too Big to Jail”
March 8, 2013
Q. What does “too big to jail” mean? A. “Too big to jail” refers to the federal government’s recent philosophy to decline to pursue criminal prosecution of Wall Street megabanks for financial fraud and other wrongdoing. The Obama administration has not sought aggressively to prosecute large financial institutions for their role in the financial crisis and other high-profile matters. Despite receiving $165 million for the prosecution of entities and individuals whose actions resulted in the financial crisis, the Justice Department still has no high-profile financial crisis criminal convictions of either companies or individuals. The phrase “too big to jail” is a play on “too big to fail,” the controversial idea that government policy and tax dollars must bail out the major banks and the government must decline to prosecute the banks because their failure would be devastating to the economy. This policy encourages excessive risk-taking and misbehavior because it removes the consequences that normally would result from financial failure or criminal sanctions. Q. Why has the Justice Department largely declined to pursue criminal cases against the major banks for wrongdoing? A. I’m working to get answers to that question. So far, the Justice Department’s top leaders say their decisions are based on a fear of disrupting the financial markets or causing “a ripple effect so that suddenly, counterparties and other financial institutions or other companies that had nothing to do with this are affected badly,” in the words of outgoing Assistant Attorney General Lanny Breuer. Both Breuer and Attorney General Eric Holder said the Justice Department consults outside “experts” in determining whether to prosecute banks. With Sen. Sherrod Brown, I’m pressing the Justice Department to explain who those experts are, whether they have any ulterior motives in their decision-making, and whether they’re looking out for the public’s best interest in advising prosecutors. Q. Why does “too big to jail” matter? A. Declining to prosecute either the banks themselves or individuals at the banks for financial fraud sends the message that crime pays and in the unlikely event of a financial penalty from the Justice Department in lieu of prison, that any financial penalty is just part of the cost of doing business. It enables those willing to commit crime to do it repeatedly. Meanwhile, the best deterrent to crime is to put criminals in prison. That includes those at powerful banks and corporations. No one should be above the law. If we saw some serious prosecutions, we’d see fewer instances of malfeasance, such as the recent interest rate manipulation scandal, that harm innocent bank customers and homeowners.
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