NEW YORK (TheStreet) -- Every so often, just for the heck of it, I take a look at FINRA monthly list of disciplinary actions. What I see is a crackerjack regulator. Tough as nails, relentless as Eliot Ness. And no, I'm not being sarcastic. Our regulators are everything their press releases and Congressional testimony say they are -- if you're a small-fry broker, and you hijacked some bucks from a customer or misused a corporate credit card.
In the latest list of FINRA
, for instance, one broker agreed to a permanent ban from the brokerage industry for taking $5,000 from a customer and giving him a receipt saying "money market." (See p. 16.)
That's terrific. FINRA should severely discipline dishonest brokers. But let's say you're a big bank, involved in big-time dishonesty. But let's say you're systematically throwing people out of their homes without having any evidence that you have a right to throw people out of their homes. In other words, you're abusing the court system on multiple occasions. What are the consequences for that?
It seems that we're about to find out. And all I can say is that I hope that the past is not prologue. The history of the financial crisis has been of a dreary tale of crimes without punishment. Unless that pattern is broken, we're likely to see a continuation of the same trend, of big-time bankers escaping consequences while the small fry get fried. What the history of financial regulation implies is that the big banks that are snared in the foreclosure web, such as
Bank of America
, simply don't have all that much to worry about.
Oh sure, it
they have a lot to worry about, but that's just spin. As usual in these kinds of situations, there has been a flurry of leaks indicating that the feds are right on the case, and that they're bearing down on the big banks with all the zeal of a FINRA examiner with a no-name broker on his target list. Just last week, word leaked out that a federal multi-agency
is investigating whether banks committed crimes in their handling of foreclosures. The
reported that the FBI is investigating.
So now the media is grappling with the tantalizing prospect of bankers "lawyering up," and perhaps even being paraded around in handcuffs, as Rudy Giuliani used to do to supposed insider-trading investment bankers back in the day. A Time magazine blogger says foreclosure-gate is shaping up to be the financial industry's
and suggests that we may finally see bankers serving time.
I have my doubts not just because of the inexorable march of history, but for the simpler reason that this generation of prosecutors just hasn't been all that game to go after the big-fry. That's been the pattern in the aftermath of the financial crisis. Preet Bharara, the capable but unimaginative U.S. Attorney for the Southern District of New York, has not, to date, shown an appetite for pursuing criminal cases against major players in the financial markets. Every major bank and banker that has been caught doing something naughty, notably
and Lehman Brothers, all in Bharara's jurisdiction, have dodged the bullet. Lehman's officers have yet to face the music for their Repo 105 asset-shifting scheme, and in all likelihood never will. Goldman paid half a billion dollars to settle its Securities and Exchange Commission charges for climbing under the sheets with
. Goldman got off so easily that its stock soared when this
Left in the hot seat at Goldman is, predictably, a small-fry banker named Fabrice Tourre. Tourre's
should illustrate the dictionary definition of "patsy."
I can see Preet Bharara and the legendarily non-relentless Mary Schapiro, chairperson of the SEC, bearing down on Tourre like the nobody he is. I can see them, and their brethren in the regulatory-prosecutor apparatus, stringing up any other nobodies that might fall into their clutches in this foreclosure mess. But that's about it. Remember that the banks involved in "foreclosure-gate" include every big potential employer ... excuse me ... I meant to say, every big name in mortgage banking, including Bank of America, whose CEO, Brian Moynahan, used to serve as chief legal officer. Does anyone seriously think that prosecutors are going to bring criminal charges against the biggest bank and biggest banker in America? I sure don't.
It would be a lovely thing to see, if there is justification for it, but it's hard to believe that the small-fry, big-fry dichotomy is going to be shattered just because a few thousand little people may have been unjustly kicked out of their homes. There's talk that some of the same mortgages may have been
. Sure, that's terrible. But what of it? None of that is on the order of magnitude of the chicanery that we saw time and again in the wake of the financial crisis, and yet the regulatory consequences, two years later, have been nil.
Now, that doesn't mean nobody is going to catch a bullet for the misbehavior that we've been reading about. Apart from nobodies at big firms, there are nobody firms out there, ready to be thrown under the truck. Mortgage-processing firms may well feel the full force of federal wrath. Lawyers getting rich off foreclosures, such as
profiled by Bloomberg, are likely to be hit hard if their paperwork hasn't been totally kosher.
Am I being cynical? I don't think so. Just realistic. You have to remember that the Obama administration, bless its non-vindictive heart, is not in the mood to get Wall Street any madder than it already is. The people who brought us to a post-racial era have also founded a new era in the prosecution of white-collar crime, what I call the post-punishment era.
described it yesterday as the Obama administration not having a "prosecutorial gene." Its credo goes something like this: If you can do the crime, you don't necessarily have to serve the time.
Gary Weiss has covered Wall Street wrongdoing for almost a quarter century. His coverage of stock fraud at BusinessWeek won many awards, and included a cover story, �The Mob on Wall Street,� which exposed mob infiltration of brokerages. He uncovered the Salomon Brothers bond-trading scandal, and wrote extensively on the dangers posed by hedge funds, Internet fraud and out-of-control leverage. He was a contributing editor at Conde Nast Porfolio, writing about the people most intimately involved in the financial crisis, from Timothy Geithner to Bernard Madoff. His book "Born to Steal" (Warner Books: 2003), described the Mafia's takeover of brokerage houses in the 1990s. "Wall Street Versus America" (Portfolio: 2006) was an account of investor rip-offs. He blogs at garyweiss.blogspot.com.