I mentioned yesterday that Goldman Sachs got a rare “reverse Wells notice” from the SEC, when they were told that a mortgage-backed securities deal which they earlier heard they would face prosecution for would not net them any civil enforcement. But that was just the beginning. Later in the day, they learned they would not face any prosecution from the Justice Department for the misdealings brought to light in a Senate Permanent Subcommittee on Investigations report a year ago.
In a written statement, the department said it conducted an exhaustive investigation of allegations brought to light by a Senate panel investigating the 2008-2009 financial crisis.
“The department and investigative agencies ultimately concluded that the burden of proof to bring a criminal case could not be met based on the law and facts as they exist at this time,” the department said [...]
A Senate subcommittee chaired by Sen. Carl Levin, D-Mich., in April 2011 found that Goldman marketed four sets of complex mortgage securities to banks and other investors but that the firm failed to tell clients that the securities were very risky. The Senate panel said Goldman secretly bet against the investors’ positions and deceived the investors about its own positions to shift risk from its balance sheet to theirs [...]
The Senate panel probe turned up company emails showing Goldman employees deriding complex mortgage securities sold to banks and other investors as “junk” and “crap.”
Levin said during his subcommittee’s investigation that he believed that Goldman executives “misled the Congress” and that Goldman “gained at the expense of their clients and they used abusive practices to do it.”
So Goldman got off for two separate things here, detailed in this contemporaneous report on the SPSCI report: one, the securities fraud elements of lying to their investors and profiting off their lack of disclosure; and two, lying to Congress about it. The Justice Department didn’t see a problem with it. So any upstart investment bank looking to make it in the world, you have your marching orders. You have to lie to your investors, take the other side of the bet on the deals you offer them, and when questioned about it, obfuscate and obstruct the investigatory body. That’s the way to the top.
I swear that “if the Justice Department saw crimes committed, they would have done something” and “it’s a higher bar” are macros on the keyboards of defenders of the lack of prosecutions. But it’s pretty simple to come up with ways to prosecute on this conduct if you really wanted. Just take the Sarbanes-Oxley Act alone. Section 802 clearly states:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Even if lying to Congress weren’t a crime, this would potentially cover it. And then there’s Section 906:
(a) Certification of Periodic Financial Reports.— Each periodic report containing financial statements filed by an issuer with the Securities Exchange Commission pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m (a) or 78o (d)) shall be accompanied bySection 802(a) of the SOX a written statement by the chief executive officer and chief financial officer (or equivalent thereof) of the issuer.
(b) Content.— The statement required under subsection (a) shall certify that the periodic report containing the financial statements fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of  1934 (15 U.S.C. 78m or 78o (d)) and that information contained in the periodic report fairly presents, in all material respects, the financial condition and results of operations of the issuer.
(c) Criminal Penalties.— Whoever— (1) certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $1,000,000 or imprisoned not more than 10 years, or both; or
(2) willfully certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $5,000,000, or imprisoned not more than 20 years, or both.
Goldman has paid $550 million in civil fines (with that ever-present “neither admit nor deny wrongdoing” clause) to the SEC on precisely these types of mortgage backed securities deals. The annual certification was clearly fraudulent, and yet no major investment bank has been prosecuted under that statute.
However, you can take comfort in the fact that one Goldman Sachs alum was arrested yesterday. That would be the programmer accused of ripping off the company’s source code:
The legal odyssey of a former Goldman Sachs programmer, Sergey Aleynikov, took a surprising turn on Thursday when the Manhattan district attorney charged him with state crimes.
Mr. Aleynikov was charged in state court less than six months after a federal appeals court overturned his conviction on federal criminal charges that he stole secret source code from Goldman’s computers.
While the case involved a relatively low-level ex-employee at a financial firm, the government has taken a particularly hard line. The district attorney, Cyrus R. Vance Jr., and Preet Bharara, the United States attorney in Manhattan, have made the prosecution of corporate espionage and high-tech theft a top priority.
So the only way to get arrested if you worked at Goldman Sachs is if you’re accused of stealing from Goldman Sachs.
Talk about adding insult to injury.