LyrArc Article Gist
Judge Rakoff is interviewed by Adam Liptak as an essay by Rakoff appears in the December 22 issue of The New York Review of Books. Judge Rakoff is critical of the Justice Department for not prosecuting individuals responsible in the 2008-2009 financial crisis and merely offering excuses. He discounts the Justice Department argument that proving intent is difficult or that proving fraud is hard because of the sophisticated counterparties on both sides. He says assistant attorney general in the criminal division Bauer's assertion that you have to prove the individual involved made a false statement, intended to commit a crime, and that the other side depended on this for what they were doing, is misleading. The government is not required to prove that one party to a transaction relied on another party. On the difficulty to prove wilful criminal intent for individuals several layers above those who made and marketed the bad securities, Rakoff says the legal doctrine of wilfull blindness could have been used. Reflecting on why the Justice Department has not prosecuted individuals for wrongdoing the way Milken, Keating and Skilling were prosecuted in prior financial crises, Rakoff comes up with a explanation. He says the government's own role and the role of firms throughout the financial system is suspect in the 2008-2009 financial crisis unlike prior crises. Not only regulators are failing to to do their job. The financial system offers incentives for the packaging of bad debt securities. Fannie Mae has government backing and its management buys these securities to expand access to housing for low income people. The profits made on these securities brings U.S. and foreign banks into this business and leads to a proliferation of these securities around the globe to the point that small towns near the North Pole end up with these securities in their portfolio. This complicates things for prosecutors who in some situations have themselves worked for banks selling these securities. In its slow deliberative way the Obama administration, the Justice Department, and the S.E.C.'s new head, move to prosecute firms during the administration's second term, but not enough is done and tackling individual responsibility for deterring future wrongdoing in the interests of a safe and fair financial system seems a long way off.