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Why the S.E.C. Didn’t Hit Goldman Sachs Harder
Why did no top bankers go to prison? Some have pointed out that statutes weren’t strong enough in some areas and resources were scarce, and while there is truth in those arguments, subtler reasons were also at play. During a year spent researching for a book on this subject, I’ve come across case after case in which regulators were reluctant to use the laws and resources available to them. Members of the public don’t have a full sense of the issue, because they rarely get to see how such decisions are made inside government agencies.
.. Kidney, for his part, came to believe that the big banks had “captured” his agency—that is, that the S.E.C., which is charged with keeping financial institutions in line, had become overly cautious to the point of cowardice.
.. The bank, IKB, was cautious enough to ask that Goldman hire an independent asset manager to assemble the deal and look out for its interests.
.. This is where things got dodgy. Unbeknownst to IKB, Paulson & Company improved its odds of success by inducing the manager, a company called ACA Capital, to include the diciest possible housing bonds in the deal. Paulson wasn’t just betting on the horse race. The fund was secretly slipping Quaaludes to the favorite. ACA did not understand that Paulson was betting against the security. Goldman knew, but didn’t give either ACA or IKB the full picture. (For its part, Paulson & Company contended that ACA was free to reject its suggestions and said that it never misled anyone in the deal.)
.. When S.E.C. officials discovered this, in 2009, they decided that Goldman Sachs had misled both the German bank and ACA by making false statements and omitting what the law terms “material details”—and that these actions constituted a violation of securities law.
.. When Kidney looked at the work that had been done on the case, he found what he considered serious shortcomings. For one, S.E.C. investigators had not interviewed enough executives. For another, the staff decided to charge only the lowest man on the totem pole, a midlevel Goldman trader named Fabrice Tourre
.. Charging only Goldman, he said, would send exactly the wrong message to Wall Street. “This appears to be an unbelievable fraud,” he wrote to his boss, Luis Mejia. “I do
.. The S.E.C. team had not interviewed Tourre’s direct superior, Jonathan Egol. Nor had they questioned top bankers in Goldman’s mortgage businesses or any of the bank’s senior executives. Even more surprising to Kidney, the agency had not taken testimony from John Paulson, the key figure at his eponymous hedge fund. It seemed to Kidney, as he reviewed the case materials, that the agency had spent more time and effort investigating much smaller insider-trading cases.
.. Part of the problem was that high-level Goldman executives had been savvier in how they communicated: when topics broached sensitive territory in e-mails, they would often write “LDL”—let’s discuss live.
.. In a December 30th e-mail, sent to the entire group investigating the deal, Muoio offered an explanation for what had happened during the bubble years: “Now that we are gearing up to bring a handful of cases in this area, I suggest that we keep in mind that the vast majority of the losses suffered had nothing to do with fraud and the like and are more fairly attributable to lesser human failings of greed, arrogance and stupidity of which we are all guilty from time to time.”
.. Kidney told me that he thought the S.E.C. could avail itself of a broader interpretation of securities law. He argued that the agency should file civil actions against top players at both the bank and the hedge fund under a concept called “scheme liability”—a doctrine of securities law that makes it illegal to sell financial products whose main purpose is to deceive investors.
.. Muoio, in a recent interview with me, dismissed Kidney’s complaints. “I cannot imagine any basis for claiming ‘regulatory capture,’ given that I have never worked in industry or finance and given the cases I have made, including very significant cases against banks, auditing firms, companies and senior executives,” he said.
.. But to Kidney, the driving force was something subtler. Over the course of three decades, the concept of the government as an active player had been tarnished in the minds of the public and the civil servants working inside the agency. In his view, regulatory capture is a psychological process in which officials become increasingly gun shy in the face of criticism from their bosses, Congress, and the industry the agency is supposed to oversee. Leads aren’t pursued. Cases are never opened. Wall Street executives are not forced to explain their actions.
Men: Thank God We’re Not Women!
It is in chapter 1 of Tractate Kiddushin that we find the classic formulation of men’s and women’s responsibilities when it comes to mitzvot. As the mishna on Kiddushin 29a says, “With regard to all positive, time-bound mitzvot, men are obligated and women are exempt.” That is to say, anytime God commands us to perform a specific action at a specific time, only men are required to do it. If a mitzvah doesn’t have a time restriction, however, or if it is a negative commandment or prohibition, then men and women are equally obligated. This explains why, as we saw last week, both men and women must honor their parents—this a positive, non-time-bound commandment. Likewise, prohibitions on Shabbat labor or theft are binding on both sexes. But since a Jew only sleeps in a sukkah at the designated time during Sukkot, and only wears tefillin during the day, women do not have to perform these mitzvot.
.. It is in the course of this discussion that we come to the matter of women’s beards. The Bible commands that Jews are not permitted to “destroy the corners of your beard.” Exactly what this means is the subject of dispute in the Talmud—the consensus is that shaving is forbidden, but tweezing and trimming with a scissors is permitted. But there is no doubt that it is a prohibition and therefore should apply to men and women equally. Yet the Gemara says that women are not included in this prohibition. Why not?
The first answer the Gemara gives is the obvious one: “If you wish, propose a logical reason, as ordinarily women do not have a beard.” That is, since women can’t grow beards, the rule doesn’t apply to them at all. But the rabbis go on to point out that, in fact, sometimes women do grow facial hair; there is even a baraita stating that “the beard of a woman … is considered like a beard for all matters.” Shouldn’t it follow that, if a woman grows facial hair, she must not destroy it? Once again, it takes some interpretive dexterity to show why women are not included in this prohibition, this time focusing on the singular Hebrew verb in the commandment. Whenever such arguments are employed, I can’t help feeling that the rabbis are arguing ex post facto—that is, they are finding textual reasons to defend what they already believe in as tradition, or simply as common sense.
‘He Brutalized For You’
How Joseph McCarthy henchman Roy Cohn became Donald Trump’s mentor.
Roy Cohn, the lurking legal hit man for red-baiting Sen. Joe McCarthy, whose reign of televised intimidation in the 1950s has become synonymous with demagoguery, fear-mongering and character assassination. In the formative years of Donald Trump’s career, when he went from a rich kid working for his real estate-developing father to a top-line dealmaker in his own right, Cohn was one of the most powerful influences and helpful contacts in Trump’s life.
.. He wrote the cold-hearted prenuptial agreement before the first of his three marriages and filed the headline-generating antitrust suit against the National Football League. To all of these deals, Cohn brought his political connections, his public posturing and a simple credo: Always attack, never apologize.
.. He wrote the cold-hearted prenuptial agreement before the first of his three marriages and filed the headline-generating antitrust suit against the National Football League. To all of these deals, Cohn brought his political connections, his public posturing and a simple credo: Always attack, never apologize.
.. “He considered Cohn a mentor,” Mike Gentile, the lead prosecutor who got Cohn disbarred for fraud and deceit not long before he died, said in a recent interview.
.. A year later, pressed by a reporter from New York magazine to justify his association with Cohn, he was characteristically blunt: “All I can tell you is he’s been vicious to others in his protection of me.”
He elaborated in an interview in 2005. “Roy was brutal, but he was a very loyal guy,” Trump told author Tim O’Brien. “He brutalized for you.”
.. He was a tangle of contradictions, a Jewish anti-Semite and a homosexual homophobe, vehemently closeted but insatiably promiscuous.
..