(Bloomberg News) In November 2009, Attorney General Eric Holder vowed before television cameras to prosecute those responsible for the market collapse a year earlier, saying the U.S. would be "relentless" in pursuing corporate criminals.
In the 18 months since, no senior Wall Street executive has been criminally charged, and some lawmakers are questioning whether the U.S. Justice Department has been aggressive enough after declining to bring cases against officials at American International Group Inc. and Countrywide Financial Corp.
Prosecutions of three categories of crime that could be linked to the causes of the crisis -- corporate, securities and bank fraud -- declined last fiscal year by 39 percent from 2003, the period after the accounting scandals at Enron Corp. and WorldCom Inc., Justice Department records show.
"You need a massive prosecutorial effort," said Solomon Wisenberg, a white-collar defense attorney at Barnes & Thornburg LLP in Washington and a former federal prosecutor. "I don't see evidence that it's happening. If we were talking baseball, it would be at the AAA level."
The Justice Department and Federal Bureau of Investigation dispute that, saying they are continuing to investigate potential wrongdoing connected to the emergency, and some probes didn't find criminal behavior. They say they stepped up mortgage-fraud prosecutions, which more than doubled in fiscal 2010 from 2009, the first full year for which there is data.
Hard to Prove
To prosecute fraud, the government generally must show executives knowingly made false statements or omitted the truth about a company's financial health. Bankers have argued that they broke no laws and can't be blamed for an industry-wide breakdown in risk controls.
An unsuccessful Justice Department criminal prosecution in 2009 of two Bear Stearns Cos. hedge-fund managers accused of misleading investors about the health of their funds suggests that such cases can be difficult to prove.
Using e-mails as evidence, prosecutors alleged the managers touted their funds while privately saying they were financially unsound. Jurors acquitted the managers and said in subsequent interviews the e-mails were inconclusive.
While prosecutors have struggled to bring criminal cases, there have been civil actions, which require a lower standard of proof. The Justice Department this month filed a civil suit for more than $1 billion against Deutsche Bank AG for allegedly lying repeatedly to qualify risky mortgages for a government insurance program. And as of April, the Securities and Exchange Commission had brought cases against more than two-dozen senior corporate officers for misconduct related to the financial crisis, Chairman Mary Schapiro said last month.
Blaming the Banks