Note to Senate: Ask Mary Jo White About DPAs

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3 Responses

  1. Henry Levine says:

    I acknowledge that the crux of your post is really DPAs, and that I am focusing elsewhere. To the extend that you think DPAs are excessive interference (I think this is your position, yes?), my point directly challenges your subwarrants.
    Anyway, I’m very surprised by and skeptical of your premise that the HSBC plea agreement represents ‘tough prosecution’. As a variety of commentators including Glenn Greenwald at the Guardian (see, eg, http://www.guardian.co.uk/commentisfree/2013/jan/23/untouchables-wall-street-prosecutions-obama) have noted, citizens without extensive influence have been (routinely) heavily prosecuted without meaningful plea negotiations for acts much less offensive and much less strongly evidenced. Eg, many Americans of Arabic-language cultures have been jailed for making financial contributions to organizations that they thought were charitable and that are not directly connected to terrorist acts. By contrast, HSBC knowingly and ongoingly laundered money for actual terrorist organizations and no one is going to jail. This is not about serious prosecution, this is about merely nominal law enforcement that shields the powerful from accountability.

  2. mls says:

    Isn’t the problem here complexity? The banks are complex, the laws are complex and the DPAs are complex. Its difficult to see how Congress, or anyone, is going to be able to monitor this or distinguish “good” DPAs from “bad” ones. Members of Congress, academics and others will just divide into “pro-regulation” (focusing on the bad things that banks do and assuming that regulation will improve things) or “anti-regulation” (focusing on the bad things that regulators do and assuming that regulation does not improve things). In the meantime, regulators and the regulated will work out arrangements over time that will presumably be to their mutual benefit, and probably to the detriment of customers, shareholders, taxpayers and others who lack the ability to see or understand what is going on.

  3. Lawrence Cunningham says:

    Henry: I’m examining DPAs and note that the HSBC fine of $2 billion is not trivial and the extensive internal governance reforms demonstrate muscular prosecutorial action. My concern is about the unintended consequences of such internal reforms, on everyone, not a comparison to the weak.

    mls: Yes, and my suggestion is to develop a practice and expectation that prosecutors publicly articulate the rationales for the reforms they propose. This would require simplifying some of the complexity to equip all the constituents you mention with the tools to see and understand what is going on. It would also help prosecutors learn what is going on too which, alas, sometimes they do not. I have a full law review article on this in circulation this article submission season.