Obama Administration Essentially Admits That Some Banks Are Too Big To Jail, Which Is Troubling

NEW YORK, NY - DECEMBER 11: Assistant US Attorney General Lanny Breuer speaks during a news conference to announce money laun
NEW YORK, NY - DECEMBER 11: Assistant US Attorney General Lanny Breuer speaks during a news conference to announce money laundering charges against HSBC on December 11, 2012 in the Brooklyn borough of New York City. HSBC Holdings plc and HSBC USA NA have agreed to pay $1.92 billion and enter into a deferred prosecution agreement with the U.S. Department of Justice in regards to charges involving money laundering with Mexican drug cartels. (Photo by Ramin Talaie/Getty Images)

One of the great things about being too big to fail is that you're also too big to jail, apparently.

So saith the Obama administration, via the New York Times, in its front-page story on Tuesday about HSBC's settlement with the government over money-laundering charges. Though the British banking giant had to pay a wrist-stinging $1.9 billion, the settlement helped it avoid formal criminal charges. The NYT quotes anonymous government officials who say they were skittish about indicting HSBC because formal charges would amount to a "death penalty" for the bank, potentially roiling the financial system.

This is at least three very specific flavors of bullshit.

For one thing, according to University of Notre Dame law professor Jimmy Gurulé, a former assistant U.S. Attorney General and former Undersecretary for Enforcement for the U.S. Treasury Department, the government could have formally charged Europe's biggest bank in such a way as to help it avoid death. The bank's U.S. business may have been disrupted for some time, but the bank could have survived. The punishment that was meted out -- taking about half a quarter's profit -- was so far removed from a "death penalty" that it can't possibly be a deterrent for any other big bank.

And even if the government felt it could not formally charge HSBC, it could easily have charged individuals at the bank without causing financial armageddon. Instead, not a single HSBC individual faces criminal prosecution, despite evidence that billions of dollars were laundered on behalf of Mexican drug lords, the Iranian government and other evildoers for years.

Nor have any individuals been charged at the five other big European banks that have also managed to dodge formal money-laundering charges in recent years, including British bank Standard Chartered, which entered its own deferred prosecution agreement on Monday. Apparently, all of this constant money laundering was done by robots.

"The message this is sending is if you want to engage in money laundering, make sure you're doing it within the context of your employment at a bank," Gurulé said in a phone interview. "And don't go small. Do it on a very large scale, and you won't get prosecuted."

"It's essentially telling the executives in these institutions crime pays," Neil Barofsky, former Special Inspector General for the Troubled Asset Relief Program, the government's bailout program, told CNN. "Go ahead, do whatever you want to do, enjoy your profits, and the worst thing that happens, well, you have some fines that really make up a couple of weeks of profits that you lose."

Finally, if the Obama administration's attitude about banks is truly that it is terrified of prosecuting them, for fear of upsetting the global economic order, then that is a damning statement about our financial system -- though it is of a piece with everything else we've learned since the crisis: If you're a bank and you're big enough, you're basically going to get away with everything short of murder. And maybe that, too. You can certainly create and sell toxic securities while also betting against them and trigger a global depression without having to worry about doing any jail time.

"Somebody else is bound to look for the next hole in the system at another international bank, and exploit it," Anthony Michael Sabino, a professor at St. John's University's Peter J. Tobin College of Business, wrote in an email. "It’s time we started asking are these banks just too big to meaningfully regulate.”

That time actually passed long ago.