Accused swindler Bernard Madoff enters the Manhattan federal court house in New York, March 12, 2009. REUTERS/Shannon Stapleton

 

JPMorgan Chase (NYSE:JM) had offered to settle the potential case regarding the work for Madoff in exchange for no formal criminal charges being brought against it. But top aides to Preet Bharara, the U.S. attorney for the Southern District of New York, as well as several senior career prosecutors in the Justice Department’s Criminal Division, have been adamant that such a deal is unacceptable, according to the sources.

Why have prosecutors taken such a tough stance?:

It is highly unusual for such a major bank to be pressured by prosecutors to admit criminal guilt. That pressure reflects the seriousness of what prosecutors consider senior JPMorgan officials to have done: Sources close to the investigation say investigators learned from the bank’s own internal, confidential records that even though senior JPMorgan executives suspected Madoff was running a Ponzi scheme, they never informed federal regulators of their suspicions, as is required by federal law.

Such a warning might have tipped off regulators — and more importantly, investors — years earlier. Said one federal law enforcement official: “If they had stricter controls in place, if they had stricter money-laundering standards, if they simply informed regulators of their suspicions … perhaps someone in government would have given Madoff a look, and shut him down earlier.” Billions of investors’ dollars might very well have been saved.

Prosecutors advocating a guilty plea might face an uphill battle, however:

The position taken by prosecutors who work for Bharara and others in the Criminal Division in Washington may once again pit them against the highest levels of the Justice Department, who have long argued that some banks that were once “too big to fail” are also too big to face criminal charges due to the potential impact on the economy. The long-running debate over the proper punishment for these misdeeds has long stymied the aides in the U.S. Attorney’s Office in New York. “It does feel a lot like Groundhog Day,” said one government official involved in the matter. This time, however, they have greater optimism that they — and to their mind, the public — will prevail.

Lanny Breuer, who headed the Criminal Division until March and was in charge of prosecuting Wall Street crimes, has said decisions as to which banks to charge were based on “sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effects.” His boss, Attorney General Eric Holder, has echoed those comments: “The impact on the stability of the financial markets around the world is something we take into consideration.

On the positive side, however, as I report, Breuer left the Justice Department in March.

In addition, Preet Bharara, the United States Attorney for the Southern District of New York, has been pushing for a more aggressive prosecutorial approach towards banks and financial institutions involved in causing the financial crisis:

Bharara has at times appeared to openly signal defiance of that doctrine: “I don’t think anyone is too big to indict — no one is too big to jail,” he declared in a July 2013 speech. Prosecutors who work for Bharara and others in D.C. hope he will now powerfully advocate their position that JPMorgan must not escape criminal charges for its involvement with Madoff.

Ben Protess and Jessica Silver-Greenberg have even greater detail of this particular angle of the story in the New York Times:

For the government, [the case] would represent an extraordinarily rare show of force. Ever since a criminal indictment led to the demise of the accounting firm Arthur Andersen, Enron’s auditor, the government has been wary of imposing criminal charges on big corporations for fear that it would imperil the institution and have ripple effects on the broader economy. Under federal guidelines, prosecutors must weigh “collateral consequences,” like job losses and economic implications, in such an action.

HSBC, for example, paid $1.9 billion to settle a money-laundering case, but the Justice Department stopped short of indicting the British bank. The case reinforced concerns that big banks, having grown so large and interconnected, are too big to indict.

Yet Preet Bharara, the United States attorney in Manhattan whose office is handling the JPMorgan case, has disputed that theory. In a recent speech, Mr. Bharara said he rejected the idea from companies that “because we’re so big, to take action against us, the sky is going to fall.”

Also helping the faction in the DOJ that wants the Obama administrative and its Justice Department take a more activist stance in prosecuting Wall Street firms and banks has been a trio of Seantors:  Sherrod Brown (D-Ohio), Jeff Merkley (D-Ore.) and Elizabeth Warren (D-Mass.).  The thrree most recently flexed their muscles by torpedoing the nomination of Larry Summers to head the Federal Reserve Board.  A demand by Eric Holder and DOJ that JPMorgan plead guilty would is just the type of tough behavior that the three Senators have been pressing for.

My entire story can be found here.  The Times report is here.  Matt Taibi’s take.

– Muray Waas

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It seemed like a minor adjustment. To comply with the Massachusetts Supreme Judicial Court ruling that legalized gay marriage in 2003, the state Registry of Vital Records and Statistics said it needed to revise its birth certificate forms for babies born to same-sex couples. The box for “father” would be relabeled “father or second parent,’’ reflecting the new law.

But to then-Governor Mitt Romney, who opposed child-rearing by gay couples, the proposal symbolized unacceptable changes in traditional family structures.

He rejected the Registry of Vital Records plan and insisted that his top legal staff individually review the circumstances of every birth to same-sex parents. Only after winning approval from Romney’s lawyers could hospital officials and town clerks across the state be permitted to cross out by hand the word “father’’ on individual birth certificates, and then write in “second parent,’’ in ink…

More:

The practice of requiring high-level legal review continued for the rest of Romney’s term, despite a warning from a Department of Public Health lawyer who said such a system placed the children of same-sex parents at an unfair disadvantage.

Crossouts and handwritten alterations constituted “violations of existing statutes’’ and harmed “the integrity of the vital record-keeping system,’’ the deputy general counsel of the department, Peggy Wiesenberg, warned in a confidential Dec. 13, 2004, memo to Mark Nielsen, Romney’s general counsel.

The changes also would impair law enforcement and security efforts in a post-9/11 world, she said, and children with altered certificates would be likely to “encounter [difficulties] later in life . . . as they try to register for school, or apply for a passport or a driver’s license, or enlist in the military, or register to vote.”

The video I am now putting up is for this portion of the story:

The next month, Romney delivered remarks before the Senate Judiciary Committee in Washington in which he decried the state Supreme Judicial Court’s ruling and its effect on child-rearing. He outlined his misgivings about the request from the Registry of Vital Records.

“The children of America have the right to have a father and a mother,’’ Romney said in his prepared remarks. “What should be the ideal for raising a child? Not a village, not ‘parent A’ and ‘parent B,’ but a mother and a father.’’

Romney also warned about the societal impact of gay parents raising children. “Scientific studies of children raised by same-sex couples are almost nonexistent,’’ he said. “It may affect the development of children and thereby future society as a whole.’’

Romney expressed similar beliefs during a speech in 2005 to socially conservative voters in South Carolina, as he was beginning to be viewed as a serious candidate for president.

“Some gays are actually having children born to them,’’ he declared. “It’s not right on paper. It’s not right in fact. Every child has a right to a mother and father.’’

Video of Romney’s remarks in Spartanburg, South Carolina and his testimony before the Senate Judiciary Committee can be found here:

A truncated video clip of Romney’s remarks in South Carolina is here:

Earlier, also in the Boston Globe, “No mention of ‘Bisexual’, “Transgender’ Under Romney,” June 12, 2012.

– Murray Waas