The nomination of Mary Jo White to serve as Chair of the SEC has set off a firestorm of discussion. Matt Taibbi of Rolling Stone and John Cassidy of the New Yorker both think her ten years at Debevoise & Plimpton mean that her loyalties run to Wall Street, and that she is a continuation of the practice of appointing lap dogs to enforcement positions. This is a hallmark of President Obama approach to personnel. Neither failure nor close association with the lords of Wall Street is a bar to appointment.
Timothy Geithner presided over the NY Fed where all his contacts were from Wall Street. As Treasury Secretary he has been deeply involved in protecting Wall Street executives from investigation and prosecution. Attorney General Eric Holder came from decades of service to the corporate criminal class and didn’t investigate or prosecute Wall Street. Instead, he appointed Lanny Breuer as head of the criminal division of the Department of Justice. Breuer came from Covington & Burling, where he developed a taste for protecting Wall Street. He is afraid even to investigate Wall Street: he and his crack staff picked up a few documents, gave them a hard look, and then took the advice of the lawyers for the banksters that prosecution would be bad.
Robert Khuzami was appointed SEC Chief of Enforcement in the middle of the worst outbreak of securities fraud in the checkered history of capitalism, and couldn’t find a single criminal on Wall Street. He came from a prosecutorial background, including securities fraud, but then spent years at Deutsche Bank, which was deeply involved in RMBS frauds and foreclosure fraud, all of which has apparently gone without scrutiny from the SEC or the Department of Justice.
These are just the most obvious examples of the personnel approach of President Obama to appointments. He refuses to appoint serious enforcement people to positions of authority over the financial sector. His only concern is that his appointments come from the regulated sector, and have a background that can be cherry-picked to show a fierce approach to enforcement. Once in office, the truth comes out. His appointments refuse to take on their previous benefactors, and only enforce the laws against the hapless and the helpless: mortgage origination fraud cases against homebuyers and mortgage bankers, undocumented workers, pot smokers, whistle-blowers, computer activists and the like. Meanwhile, the thieves who wrecked the economy get richer and more demanding.
It’s this background that makes the nomination of Mary Jo White so interesting. Is she a continuation of the Khuzami practice or a change for the better? She certainly has the appearance of fierceness. The people who have worked for her think the world of her. One stands out to me: Neil Barofsky speaks very highly of her as administrator and prosecutor in his book, Bailout, and he has a strong track record of independence to the point of apparently being too hot for the current administration.
In February 2012, Barofsky hosted a panel with White, Eliot Spitzer and Breuer to discuss whether Wall Street got a free pass on criminal charges. Peter Lattman described it for the New York Times Dealbook Blog. I read it to say Spitzer gave chapter and verse on how publicly available information shows intent and fraud. Breuer whined that he was doing his best, and look, he busted a couple of Ponzi Schemes. Here are the White quotes:
Ms. White, the former prosecutor-cum-defense lawyer, echoed the note of caution.
“We must distinguish what is criminal from what is reckless behavior or bad business decisions and not bow to the frenzy,” Ms. White said. “And I worry the frenzy overrides reason and judgment sometimes.”
The Schneiderman task force had just been announced:
“The concern is that they announce the task force and there will be cases,” she said. “It gets back to my frenzy concern. You don’t want that in the system – that kind of pressure. You don’t want the search for scalps to be the metric for success. Politics doesn’t belong in this space at all, but it still is in the space.”
Both of these quotes are ambiguous, filled with qualifiers and hedging. But, if White were a Wall Street convert, she wouldn’t have bothered with qualifiers. She would have joined Breuer in complaining about the rush to judgment and discussed in detail the grave difficulties in proving intent in securities fraud cases. She didn’t. To me, that is telling. Just because you represent a criminal defendant doesn’t mean you think they are innocent; in fact, you probably are pretty sure they are guilty. At least on this occasion, White showed her independence.
Not all Wall Streeters are toadies. Gary Gensler, the Chair of the Commodity Futures Trading Commission, worked at Goldman Sachs for years. He left and went to work in government service, and has done a good job at the CFTC.
An early tell will be the nomination for Chief of Enforcement at the SEC. Will it be someone like Barofsky or someone like Breuer?
Photo courtesy of Columbia Law School




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Jamie Dimon thinks she is perfect for the job. Tells you all you need to know.
“You don’t want the search for scalps to be the metric for success. “
Scalps has been the metric for success for the FBI, the justice department and any DA at any level with ambition to higher office. Just look at the drug war and any campaign against “organized crime” going back to prohibition.
It’s hard to believe Obama would appoint a regulator/prosecutor. I’ll believe that when I see it. I expect White to go into the agency and disappear.
A complete straw man. Oh to live in an alternate universe where there had been a prosecutorial frenzy.
Let’s all calm down here. This is the practice Obama uses called ‘inviting stake-holders to the table’. How better to police the miscreants than have a miscreant in charge of the policing? Remember the ACA negotiations? Recall how well that turned out? Prepare for more of the same.
Does Obama have the guts to nominate Spitzer?
The MSM likes her too. I saw a puff piece on the NBC 6:30 news, the gist being she was a “tough on Wall Street” type. Hardly reassuring as the MSM is owned by the same 1% that own Wall Street.
Sometimes reckless behavior is criminal as in Reckless Endangerment in NY’s Penal Law. People go to prison for that here.
And as far as scalps being the metric for success goes, she quite happily exhibited scalps in 1994 when she helped prosecute the Dirty Thirty case against cops in West Harlem. That isn’t said to exonerate the cops who were guilty as hell, but she never sheid away from publicly hanging people out.
Bread, meet butter.
“We must distinguish what is criminal from what is reckless behavior or bad business decisions and not bow to the frenzy.”
What “frenzy”, precisely, is White referring to?
Whose heads have been rolling? Where are the circling sharks, those jaws about to clamp down on those poor, half-naked, swimming for their lives, capitalists?
Masaccio, while a modicum of “cautions hopefulness” might well be a good and useful thing, I would advise a less cautious pessimism … the percentages in the very examples you offered require such a thing.
Yet, beyond that, should Mary Jo White prove true the perspectives revealed in the responses of bmaz, Coach Bill, and liberalarts; what might reasonable and rational human beings, lied to again and again, poorly “represented”, time after time, what should the non-thieves do?
Should they continue to “believe” that President Barack Obama really, really wants to do the “right thing”, oh yes … but, but, but … he just can’t because of the mean old Republicans? Should they be urged , once again, to support the “lesser evil” and continue to believe, continue to hold on to their cautious hope?
How much longer must the, “give him another chance” chant be heard?
When will it become evident that President Barack Obama will continue to protect the “astute” Wall Street Banking class until … the very last day he may remain in office?
DW
Slightly off topic but I recall in the90′s there was a bust of a cocaine distribution ring in NYC that used limos to deliver product up and down Madison Ave. and Wall Street. The limo sitting outside the high rises as the delivery person ran up to the offices and presumably gave the package addressed to the executive to the receptionist. In the bust and probably during the investigation they got all the names and of course they were big names. The upshot is Ms. White declined to prosecute any of the buyers. Nuf said.
What happened to due process?So now Barofsky = Dimon?
Thanks masaccio.
The big ego’s on Wall Street means none of those folks want to take the fall. Let’s hope guys like Dimon and Paulson are considering immunity deals to avoid paying out large portions of their estates to defense attorneys.
For its own long term good, Wall Street should want some folks in jail. Tough to get suckers to play if everyone thinks the game is rigged. Per Rupert Murdoch’s WSJ
Despite Gains, Many Flee Stock Market
The SEC is dysfunctional and really has been for 40 years or so, on an admittedly ever escalating basis. Regulatory Capture hardly begins to describe the extent of their role. After all this time it goes far beyond the Chairperson. Setting aside as impossible the appointment of an aggressive attack dog Chairman no other single SEC head could significantly alter the culture or performance of the place. Besides which any moderately professional new chairman will be told in direct and offhand ways over and over that the fate of The Nation depends upon a certain amount of discretion and moderation in selecting cases. Thus any new chairman, on their last big professional gig before golden retirement, is not going to risk firestorms and rejection by the elites for not going along with what everyone else has gone along with for a long time.
Nobody in power wants the SEC to do it’s job and few within it do either. As the other leaders are often looking beyond their service at the SEC to something a bit better perhaps, to pave their golden years.
That reminds me of that old TV game show, “Who Do You Trust?”, BooRadley.
Who DO you trust?
We have have $25, $50, and $75 (million) categories.
Anyone care to play?
Think of it like the board game, “Monopoly” …
Who gets to be “Banker”?
DW
That doesn’t sound off-topic at all.
Another case of Brand Obomba trumping Product Obomba. Those who continually wait for the “real” Barry to show up have the same relationship as Lucy and Charley Brown when it comes to kicking a football.
Ah ha!
You’re a hard-nosed realist, rapier51.
I trust your assessment to be closest to the truth.
;~DW
I’m cautiously hopeful. The fact that Dimon supports her says more about Dimon than it does about White. He is a pig, and he assumes that anyone who has worked on Wall Street is a pig also. It isn’t necessarily so. Besides Gensler, there is Jeff Connaughton, Ted Kaufman’s chief of staff, who made the turn, Kaufman himself, and others. It is true, to some extent, that you have to understand the business to do enforcement right. I doubt, for example, that White would fall for the stupid lines that kept the weasel Breuer from enforcing the law, that nonsense about crushing the banking sector and throwing innocent people out of jobs.
I’d love to see someone like Barofsky or Bill Black, but the President isn’t going to do that, and I doubt they could get confirmed. There is some question as to whether White can be confirmed. I prefer not to be a cynic all the time, and here’s my big chance.
One more thing. Her husband is old enough to retire. He should, and let her do this without his ugly minion baggage. It means there will be one more law job, for some connected slime from some east coast hotbed of right-wing money-grubbing.
This is an important point. No one trusts the financial markets, and with good reason. Appointing a real enforcer is the first step to restoring that trust. The current crowd can’t or won’t deal with the Flash Crash issues or the RMBS frauds or the favoritism shown to the rich, and they don’t think regular investors care about them or any of the other sleazy tricks of the sector.
That atmosphere is poisoning the nation’s investment stream.
I don’t trust Obama. He probably thinks Dimon is right to assume that Wall Street has corrupted Mary Jo White’s conscience. I have hopes for Mary Jo White, based on the matters I discussed. There is a big difference between rooting for her and assuming Obama set out to do the right thing.
Bush appointed New Yorker Mike Mukasey as AG back in 2007. At that time, we had a wonderful commenter/poster who was a NYC attorney. Wish I could remember her name, Cynthia Kouril might recall. She knew people who knew Mukasey. She posted he might be ok. She turned out to be wrong, but I always appreciated her taking a position. It never hurt her credibility with me, she was right on a ton of other things. She used her knowledge of the law to explain to a lot of us what the heck was going on.
She was extremely able, but wasn’t nearly the intellectual force that masaccio is. If he and Barofsky are wrong on this, it won’t hurt their credibility with me. It’s a vast understatement to say that masaccio has been extremely able over the years in chronicling the corruption at the SEC, FINRA, and DOJ. If he thinks she’s at least got a fighting chance to be a little better than her predecessors, I’m down with him.
Frankly, Boo, the “cost” is not to the reputations of Masaccio OR Barofsky, they are entitled to think as they do and to share those thoughts.
The COST will be to social justice, to civil society.
Consider:
http://www.huffingtonpost.com/dennis-m-kelleher/crime-and-no-punishment_b_2533318.html
and this link of Kelleher’s:
http://bettermarkets.com/blogs/sec-litigates-judge-lets-wall-street-hook#.UQWSDPIhVmW
I certainly respect Masaccio, and have no reason to doubt Barofsky’s good intentions, however, opinion is NOT the issue, consequence, real and brutal, is the issue, and Obama’s “tenure” has produced no remedy to the massive criminal fraud which defines that tenure, along with perpetual war, extra-legal drone killings, and a two-tiered system of “justice”.
DW
For whatever reason, it’s clear that Obama has decided to at least make motions of tacking to the left at the start of his second term. This is evidenced by his second inaugural address as well as by the appointment of Mary Jo White, who at least Neil Barofsky and masaccio (two very credible analysts) find hopeful. Following Obama’s first term, it is more than reasonable to be very cynical about this latest move by Obama. It is near certain he has something in mind on the political chess board but not yet apparent why he is appearing to move left AFTER the election rather than (as in 2008) before it.
I know it’s real passe to think that grand juries are anything but prosecution tools, but the Grand Jury was included in the Fifth Amendment for reasons not only to protect innocent. It was included there to allow the voice of the community to decide who should be prosecuted.
The government lawyers can talk all day about what can or cannot be prosecuted but their talk is completely empty rhetoric as long they are not busy cross examining Wall Street in front of a Grand Jury.
Do you refer to LooseHeadProp, Boo?
Mukasey was a thug, as was apparent.
Simply because Obama seemingly appoints more genteel protectors of privilege (and that is a very questionable perception) does not excuse his unwillingness to prosecute the Big Wigs of Wall Street.
Just as it is that bmaz did not equate Barofsky with Dimon … you did.
Lanny Breuer’s “bosses” are/were Eric Holder (who also worked for Covinton and Burling) and that “Constitutional Scholar”, Barack Obama, who pointedly said that Bradley Manning was “guilty”, before trial or hearing, and, equally pointedly, said, before any evidence of merit was attempted to be collected, that the “astute” Banksters had done “nothing illegal” …
The “buck” stops WITH Barack Obama and honesty, “trust”, requires that we do not try to fool ourselves … OR each other … beyond reasonable bounds or a rational and necessary grasp of reality.
That is merely my opinion, of course.
DW
As RMN would have put it, “when Wall St does it, it is not a crime.”
Thanks for this lhp, nice catch. looseheadprop. Hope she is ok.
If you know of some way to reinvigorate Occupy Wall Street, so we can get Obama to nominate and the Senate to confirm Barofsky or Black to run the SEC, please, write that post.
Book Salon up with Donald Tomaskovic-Devey’s Documenting Desegregation: Racial and Gender Segregation in Private-Sector Employment Since the Civil Rights Act hosted by June Carbone
Obama will NOT nominate and the Senate will NOT confirm ANYONE to “run” the SEC, in the way it should be run, Boo.
Occupy Wall Street is NOT dead.
The post that needs to be written addresses both of those facts, builds upon them and asks readers WHAT kind of world, of county, of civil society that they want …
That diary will encourage an expression of what, very specifically is NECESSARY to that better world, country, and civil society … what would it look like, what would it require?
If THAT may happen, then and only then, when the destination is CLEAR, may pathways be found to that place, that destination.
It will require NOT a savior, not a wise man or wise woman, but an informed, aware and courageous society, composed of individuals able to imagine and work, for as long as it takes to bring about that world.
What we “have” now CANNOT be fixed, it must be rebuilt on a foundation of agreed upon principles.
My conviction is that this must, eventually, happen … else humankind will perish from the earth.
It is NOT “outside” entities we must beseech, it is within ourselves that such salvation as we may find … must be sought, encouraged, honored, respected … and ACTED upon.
ALL of us are required to realize and understand these truths.
Our world, our time, and our collective humanity demand NOTHING LESS of us, those who understand, who care, and who value life and all living things, who value the planet which permits and makes possible all of these things.
It is up to us. You .. and I … and everyone else … that responsibility cannot be delegated, cannot be evaded, cannot be denied.
What do you think?
What are you prepared to do?
This is not about money.
Or power …
It is about our essential purpose in being … here, now …
Namaste
DW
Get back to me when there’s an Aaron Swartz with a Wall Street address.
I agree with you — cautiously hopeful. White was a tough prosecutor for nine years, and she was a tough lawyer after that. She has been faithful to her profession in both cases. She works hard and well for the person who pays her salary, and she delivers. That’s what one is supposed to do.
The fish rots from the head down.
We will not see any significant reform on Wall St until Obama wants reform. He does not.
To seriously think anything else beggars belief.
But the olink to the panel is great and everyone should watch it. My snap conclusions:
Breuer => White
Spitzer => Barofsky
Meaning that the attitudes towards Wall St. actions, how to act and evidence available, seem to line Ms. White up fairly well with her predecessor.
Let’s hope Ms. White values her legacy more than Mr. Breuer. when they come to write the history of how America failed to act to save the middle class in America, Mr. Breuer will be prominent on the list.
My sister, the first woman on the London Stock Exchange, told me one day
“The stock market (LSE) is not the same at it used to be. We focused on our clients.”
I asked, so “It’s just about the money earned?”
“Yes”.
yup.
I think Linda Hunt would have been a better choice. If you want someone to engage in theater for the masses, why not hire the real thing?
It will take another two months for us to feel the knife O’s second term betrayal. We will hear more caution from White and the alternative route for tar sands will be approved. At some point, surely this optimism about O experiencing an epiphony of progressiveism will come to an end and we can return to a clear eyed appreciation of dissonance. As GW said, “can’t get fooled again.” Perhaps his most astute quote.
I guess I agree with always being cautiously optimistic, but I don’t see what White has said or done to suggest she either
1) Feels strongly that one of the major problems in our economy is the lack of prosecution of criminal behavior, or
2) Would act on such a feeling in the face of a different set of priorities from the President.
It was great that Warren and Barofsky were named to COP and SIGTARP. But that doesn’t mean EESA (TARP) was anything other than bad. It’s pretty remarkable that the best case outcome out of this is leadership that is
Unless of course if the whole piece is a backhanded compliment. I do enjoy such sarcasm.
I hope I’m wrong, but anything o does in regard to wall street always seems to support their interests and never gives them any reason to fear real investigation and prosecution. It always seems to me that the o admin is where real justice goes into a black hole and comes out as parody of itself.
I am not convinced, nor reasonably willing to accept, that the term, “cynic”, applies to those who consider that Obama will, once again, fall down on his responsibility to prosecute criminal fraud, masaccio.
Repeated observation has shown, as you make clear in the examples that you provide, and the clear fact that NOTHING AT ALL has happened to those who committed the fraud, indeed, Obama has said the Banksters did “nothing illegal” and Lanny Breuer said that he could find no evidence that they had … even as PBS and others have provided such evidence … that anything is about to radically change.
It is a a bit like the “law” of gravity: On this planet, things, heavier than air, held aloft, when let go of, fall to the ground (allowing for the friction of the air and the possibility that they might go into orbit, of course). Still, one might say, “This time, things might just not work that way, and it is important to keep an open mind”. It might be said, but it is VERY hopeful, perhaps exuberant, “optimism” to say so …
True cynicism is reserved for the bankers and politicians, the ruling and political classes, they are the ones gaming the system and making mock of civil society’s laws, of the Rule of Law, of blind lady Justice.
Consider, we have seen that administration after administration, Republican and Democrat, have protected the elite and “their” money, even removed barriers to the plundering of more of the common wealth … think Glass Steagall … therefore, this is not some happenstance “accident”, it was long intended and part of a pattern of weakening rules, of regulatory capture, of revolving doors, and so on, it is not about to change, it is not about to abruptly become what we agree that it should be … and realizing that, saying that, and anticipating that “it” will go on is NOT cynical … it is reasonable and rational, in the face of behavior that is neither , in terms of the larger societal good, the behavior of the elite, the powerful, the wealthy, and the politically well-connected, while “rationally” (as is said) self-serving, does not serve ANY but the most cynical of purposes.
DW