blindfolded lady with sword in right hand held vertically down to floor, and a set of balance scales in her left hand held neck high

United States District Judge Jed Rakoff has given a scathing rebuke to US Attorney General Eric Holder’s Too Big To Jail rationale for not prosecuting crimes committed by Wall Street banks and executives. Judge Rakoff, in a speech before the New York Bar Association, labeled Holder’s view on Wall Street and rich Wall Street executives as “disturbing.”

To a federal judge, who takes an oath to apply the law equally to rich and to poor, this excuse — sometimes labeled the `too big to jail’ excuse –- is disturbing, frankly, in what it says about the department’s apparent disregard for equality under the law. In fairness, however, Mr. Holder was referring to the prosecution of financial institutions, rather than their CEOs. But if we are talking about prosecuting individuals, the excuse becomes entirely irrelevant.

Apparent disregard for equality under the law. That is a somewhat breathtaking indictment from a sitting federal judge against the Justice Department. Judge Rakoff is saying, with little in the way of equivocation, that Eric Holder’s Justice Department has a different set of rules for the rich. That Wall Street is above the law.

… if, by contrast, the Great Recession was in material part the product of intentional fraud, the failure to prosecute those responsible must be judged one of the more egregious failures of the criminal justice system in many years. Indeed, it would stand in striking contrast to the increased success that federal prosecutors have had over the past 50 years or so in bringing to justice even the highest level figures who orchestrated mammoth frauds.

As we now know, the crisis was a product of intentional fraud. Something Rakoff is also well aware of as he presided over the Bank of America civil fraud trial where a jury found BofA liable for fraud that led to crashing the housing market.

Something has clearly gone wrong with our justice system when judges are humiliating prosecutors for refusing to prosecute criminals.

Photo by ChvhLR10 under Creative Commons license.