The opening line of a December 11, 2012 New York Times editorial on federal and state authorities choosing not to indict HSBC for money laundering reads: "It is a dark day for the rule of law."
It may be a dark day for the rule of law, but it's business as usual for the banks.
America's heralded and frighteningly powerful Department of Justice, along with all of the not so heralded or frightening banking regulators, simply refused to prosecute Britain's biggest bank out of fear of "collateral consequences."
In other words, they're "too big to prosecute."
That's what Andrew Bailey, the chief executive-designate of the Prudential Regulation Authority, said about the usual deferred prosecution agreement that accompanied HSBC's $1.9 billion fine. The Prudential Regulation Authority is set to replace the U.K.'s Financial Services Authority – the country's current toothless watch dog,
It's just another example of too big to fail and too big to jail.
Deferred prosecution agreements and hefty fines levied against the world's TBTF banks have become commonplace. Still, there are relatively few criminal charges, just wrist-slapping, don't-do-it-again fines and public spankings.
It is a dark day for the rule of law because the money cloak has effectively been cast over all things having to do with justice.
Let's call it what it is: buying immunity.
The world's biggest banks are too powerful, too intertwined, too "systemically important", and just plain too rich to be challenged.
Regulatory "authorities", along with the most powerful global policeman the world has ever known all shake in their boots when they have to apologize to their bankster masters for putting on a show for the public. But the law is the law and the law apparently needs publicly orchestrated payoffs.
Let's put aside for the moment the corporations themselves and their extraordinary ability to make billions of dollars and laugh behind closed doors at having to pay fines that they can more than cover by the end of the following quarter…
Let's put aside for the moment the fact that those fines are paid, not by insurance policies, not by executives or traders or any of the individuals that commit the crimes, but by shareholders…
And let's put aside for the moment the fact that banks make so much money that they can buy off stupid shareholders by always offering dividends and stock buybacks (that's like to luring them back to be set up and knocked down again like bowling pins).
We'll put all of that aside, just for a moment, and talk about the guilty individuals…
No banking executives or traders or salesmen ever go to jail for the "systemic" banking crimes they commit. Don't you think that's part of the problem?
There is a travesty of justice as the laws are constantly trampled on by the individuals who commit these crimes – not the nameless, faceless corporate entities that publicly take the blame and pay the fines.
Now our moment is up. We can't put aside anything that the banks do, as corporations, because that's where the individuals hide.
Banks that are too big and too powerful and far too dangerous should be dismantled. There should be safety measures to ensure that the banks work for the betterment of the people who expect them to protect the fruits of their life's labors and their business and entrepreneurial endeavors.
People should expect to be able to borrow their own money safely, while the banks put that money to work for the benefit of the depositors.
People should not have to worry about how they're getting ripped off or how the banks are subjecting the global economy to crisis after crisis only to be bailed out again and again.
Here's my New Year's wish, plain and simple: Prosecute all the criminals at all the banks and send the guilty parties to jail after they are stripped of their ill-gotten riches. Then break up all the too-big-to fail, too big too jail banks into bite-sized pieces that no watchdog would ever have trouble eating.
Is that too much to ask?
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About the Author
Shah Gilani boasts a financial pedigree unlike any other. He ran his first hedge fund in 1982 from his seat on the floor of the Chicago Board of Options Exchange. When options on the Standard & Poor's 100 began trading on March 11, 1983, Shah worked in "the pit" as a market maker.
He helped develop what has become known as the Volatility Index (VIX) - to this day one of the most widely used indicators worldwide. After leaving Chicago to run the futures and options division of the British banking giant Lloyd's TSB, Shah moved up to Roosevelt & Cross Inc., an old-line New York boutique firm. There he originated and ran a packaged fixed-income trading desk, and established that company's "listed" and OTC trading desks.
Shah founded a second hedge fund in 1999, which he ran until 2003.
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