After 10 years, the Wilmington Trust banker fraud case “is OVER,” as defense appeals lawyer Steven Wood, at Wilmington’s McCarter & English, put it in a short note.
That’s after federal prosecutor David Weiss said he would not re-try four bank executives on securities fraud and conspiracy charges after the appeals court in Philadelphia reversed a jury’s guilty verdict and invited him to try again.
Good news for the bankers whose three- to six-year prison sentences were also reversed. But it’s a disappointment for investors, workers and taxpayers who blamed the executives for trying to conceal loan losses that led to the bank’s costly collapse in the late 2000s financial crisis.
The question for the rest of us: Has Washington given up on even trying to put Wall Street people in jail?
It’s been 30 years since more than 1,000 bankers were convicted (under the first President Bush) of fraud and other crimes. Hundreds were locked up in the savings and loan crisis when that whole class of home lenders, newly freed to finance businesses, made a lot of dangerous loans, and wrecked their banks.
But after that, President Clinton and a Republican-led Congress deregulated banking, leaving fewer laws to break.
Since then, federal interest in the much broader category of white-collar criminals — not just bankers but for all financial crimes — has dropped. Prosecutions fell below 10,000 a year under the younger Bush, rose briefly under Obama before falling to about 6,000 in his final year, and slipped below 4,000 a year under Trump, according to data posted by Syracuse University.
The Obama-Biden administration famously collected billions in civil penalties from big banks that forged phony approvals from homeowner-borrowers and sold bad loans disguised as good ones to investors such as taxpayer-backed Fannie Mae and Freddie Mac. But regulators prosecuted very few people for alleged crimes.
Still, when the Democrats regained power, some corporate lawyers warned clients to expect more criminal charges. “The Biden administration is widely expected to be tougher on corporate wrongdoing than its predecessor,” corporate-law giant Skadden Arps told clients in an April newsletter.
“[”It appears likely that white collar enforcement activity will significantly increase” under Biden Attorney General Merrick Garland, affirmed corporate defense firm Ropes & Gray.
But the new Attorney General has said little about general financial crimes, or the fast-forgotten villains of the last financial crisis. His office has pledged to focus on health-care-related and COVID-19 aid fraudsters, gun criminals and domestic terrorists.
The Wilmington Trust bankers were convicted in May 2018 of conspiracy to defraud the U.S. government by lying to bank regulators, investors and the SEC. The defendants were accused of filing false financial reports to hide hundreds of millions of dollars in loans to developers for projects that were not completed because demand collapsed in the Great Recession.
By hiding the true, lower value of the projects in those years, the bankers hoped they would qualify for new private investments and government aid, prosecutors alleged. The bank collected that money, only to lose it when its true condition was made public, forcing its sale to M&T Bank at a deeply discounted price.
The defense argued that confusing government rules meant the bankers did not break the law in accounting for the loans, and the appeals court agreed.
Weiss, the U.S. Attorney for Delaware who led an army of federal investigators from several agencies against the Wilmington Trust executives, won convictions of seven lower-ranking lenders and their developer-clients along the way.
But Weiss cited some of the Biden and Garland priorities Tuesday when he declined to seek a new trial on securities fraud and conspiracy charges against the bankers.
To be sure, Weiss noted the “extremely disappointing” Third Circuit appeals court reversal of the bankers’ fraud convictions in January. The court found that U.S. bank laws at the time were “ambiguous,” and the practices they were charged for widespread. Senior executives faced no criminal charges at larger commercial banks that failed, such as First Union and National City, or doomed investment banks such as Bear Stearns and Lehman Bros.
In the end, Weiss cited the lack of federal “resources” for another case, given “the challenges currently facing our community — such as unprecedented violent crime, the rising number of opioid overdose deaths, and domestic terrorism.”
It’s hard to argue with those priorities.
Defense lawyer Wood, a former homicide prosecutor, resisted my attempt to put his clients’ case in the larger context of Americans’ resentment of millionaire financiers escaping responsibility for their crumbling institutions and leaving the public to bail them out.
He insisted the loans that got the bank in trouble weren’t fundamentally bad but “excellent” when they were made: “Then the economy changed.”
“No one should be prosecuted in an ambiguous situation,” Wood added at a time when even Fed chairman Ben Bernanke was quoted urging banks not to call in their late loans too quickly.
The Wilmington Trust case may be one of a kind, the last gasp of the limited federal effort to pin criminal blame for the losses of the last financial crisis. Or it could be an early signal of where the Biden administration is heading with white-collar prosecutions. If so, Wall Street can breathe easy.