Geithner channels Greenspan and Airbrushes Fraud out of our Crises
William K. Black
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On April 25, 2012, Treasury Secretary Geithner made remarkable statements about the role of elite financial fraud and greed in producing our recurrent, intensifying financial crises. In this first installment I focus on the first of five problems with Geithner’s claims: (1) he does not understand the causes of prior crises, (2) he does not understand the causes of the ongoing crisis, (3) he does not understand that if he were correct about the first two points our nation would be in even greater peril and the urgency of Geithner leading a radical transformation of finance and regulation would be greater still, (4) he is not correct that we are prosecuting the elite criminals who drove the ongoing crisis, and (5) the media continues its nine-year pattern of failing to challenge Geithner’s fictions and his failures to lead the radical transformation that he should be desperately seeking given his stated beliefs about the causes of financial crises.
Here are the specifics of what Geithner said about financial crises, fraud, and greed.
“The wheels of justice are turning now,” Geithner said at an event in Portland after touring a factory there. “They are not turning as fast as people would like, but we have the best system in the world for making sure we can enforce the laws of the land,” he said.
Geithner suggested that holding people accountable for the wreckage caused by the recent housing collapse and the ensuing financial meltdown was not that simple since most crises were not caused by criminal activity.
“Most financial crises are caused by a mix of stupidity and greed and recklessness and risk-taking and hope,” said Geithner, who helped tackle the crisis for the Bush administration when he was the head of the New York Federal Reserve and has been urging Europe to act more aggressively to contain its debt problems.
“You can’t legislate away stupidity and risk-taking and greed and recklessness. What you can do is make sure when it happens it does not cause too much damage and to do that you have to make sure you have good rules against fraud and abuse, better protections and you force banks to hold more capital against their risk,” he said.
Geithner’s first claim is that “most financial crises” are caused by non-criminal acts. “Stupidity” is the lead cause of financial crises, compounded by “risk-taking and greed and recklessness.” Fraud does not even make Geithner’s list of contributing factors to financial crises. The U.S. has experienced three recent financial crises – the S&L debacle (which is the subject of this first installment), the Enron era frauds, and the ongoing crisis. Accounting control fraud is the leading cause of each of the crises. “Control fraud” is the term white-collar criminologists use to refer to frauds in which the person controlling a seemingly legitimate entity uses it as a “weapon” to defraud. Accounting is the “weapon of choice” for elite financial frauds. Control frauds cause greater financial losses than all other forms of property crime – combined.
Three preliminary comments are in order. First, Geithner was selected to be the President of the Federal Reserve Bank of New York (FRBNY) in 2003. The President of the FRBNY has the second most important position in the Federal Reserve System. It is essential that the FRBNY President study and understand the causes of financial crises. Geithner had ample time and incentive to conduct such a study. Second, no one challenged Geithner when he (implicitly) claimed that fraud was not even worthy of mention or consideration as a contributor to financial crises. Third, even if Geithner were correct that fraud was only a relatively small contributor to the Great Recession that would provide no basis for not prosecuting the elite frauds who made that illegal contribution.
It is useful to expand slightly on the second point. No one appears to have asked Geithner how he came to believe that “stupidity” is the primary cause of financial crises. I am flabbergasted at the claim. The individuals who are principally responsible for the crisis (whether due to their stupidity or fraud) are the CEOs of the largest financial institutions who made, purchased, pooled, and resold as collateralized debt obligations the pervasively fraudulent liar’s loans that drove the crisis. The enormous extent and growth of liar’s loans and their endemically fraudulent nature is not in dispute. The green slime that drove the crisis is not at issue. The only issue is why the CEOs made and purchased vast amounts of loans they were repeatedly warned were fraudulent and sure to cause catastrophic losses as soon as the housing bubble stalled. Assume solely for the purposes of analysis that Geithner is correct that they did so because of stupidity rather than fraud. That assumption requires the CEOs of Countrywide, Ameriquest, Indymac, WaMu, Fannie, Freddie Mac, Fannie Mae, Lehman, Bear Stearns, Merrill Lynch, Wachovia, Bank of America, Citicorp, and all the largest mortgage banks to have been terminally “stupid.” It also requires the boards of directors of each of these entities to have either been so stupid that they failed to notice that the CEO was stupid or so devoid of integrity and respect for their fiduciary duties that they were indifferent to their CEO’s stupidity. Geithner’s assertion also requires that the regulators to have been so stupid or so insipid that they could not recognize that the CEOs were terminally stupid or so indifferent to their oaths of office that they did not object to stupid CEOs running the largest financial organizations in the United States. Since Geithner dealt personally with these CEOs, his assertion, if true, would require him to either be stupid or indifferent to his oath of office.
That’s a lot of abject stupidity among the most elite CEOs – drawing an average salary of about $10 million annually in compensation for their stupidity. The boards, the regulators, the media, and shareholders are incapable of recognizing the CEOs stupidity. Everyone suspended disbelief and emulated the fools in the movie “Being There” who treated Peter Seller’s character’s (Chance the Gardener’s) inane ramblings as profound pearls of wisdom. If Geithner is correct, big bank CEOs never shave with Occam’s razor – and stupidity is omnipresent in the C-suites. Geithner also doesn’t seem to view it as particularly alarming that many of most elite CEOs are paid hundreds of millions of dollars as rewards for their surpassing stupidity.
Geithner does not reveal, and the media lacked the curiosity to ask, how he determines the answers to questions as essential to the performance of his duties as “why are we suffering recurrent, intensifying financial crises?” I will explain how I approached that question when it was essential to the performance of my duties upon becoming an S&L regulator on April 2, 1984. I decided that it was critical to study what was causing over one S&L per week to fail. I was the newly minted Litigation Director of the Federal Home Loan Bank Board (Bank Board) and every failure came across my desk so that I could (1) prepare to defend a legal challenge to our placing failed S&Ls in receivership and (2) determine whether we should sue the failed S&L’s officers, directors, and professionals because acted negligently or fraudulently. We called the process the “autopsy” and I was the “chief coroner.”
We decided that the financial autopsies provided us a priceless opportunity to study systematically the causes of the failures and to search for patterns and indicators that we could use to spot the frauds prior to their failures and to prove that they were frauds. This required us to distinguish between officers who were fraudulent, stupid, or engaged in high risk, but not illegal, “gambles for resurrection.”
To assist our analytics we worked with agency accountants, appraisers, real estate experts, and economists to provide multidisciplinary lenses with which to understand the failures. We also worked closely with the examiners who best knew the facts about the individual institutions. The examination reports and supervisory files contained the failed S&Ls’ officers’ explanations and attempted rebuttals of the examiners’ criticisms.
We did not know we were doing it (because no agency has a “Chief Criminologist”), but we had implemented the suggestion of two researchers who studied elite white-collar crimes and proposed two years earlier that investigators develop analogs to CSI-style crime labs to study elite white-collar crime. Wheeler, S., Rothman, M., 1982. The Organization as Weapon in White Collar Crime. Michigan Law Review 80, No. 7: 1403-1426.
We found that there was a distinctive fraud pattern, that the frauds used accounting as their “weapon of choice” (a metaphor that we also developed in parallel to Wheeler and Rothman), and that they followed a fraud “recipe” that was a “sure thing.” The recipe had four ingredients:
- Grow like crazy
- By making really crappy loans at a premium yield
- While employing extreme leverage, and
- Providing only trivial allowances for loan and lease losses (ALLL)
The recipe produced three sure things. The S&L was certain to report extreme (albeit fictional) income in the near term, the CEO would ensure that the S&L adopted a plan of executive compensation that would turn the fictional reported income into real wealth to the CEO, and the S&L was certain to suffer catastrophic losses because the loans had a negative expected value when made. These three “sure things” allowed us to understand several things that proved critical in containing the S&L debacle, which was growing rapidly in 1984. One, we realized that “risk” as we conventionally conceptualize it in finance had nothing to do with the frauds. Optimizing the recipe, by making loans at a premium yield, caused them to make loans that would have been exceptionally risky for an honest lender, but the risk was irrelevant to the frauds’ decision-making. Looting is liberating for the CEO. The frauds weren’t engaged in an honest gamble for resurrection. They were following a strategy that ensured they could loot the S&L and walk away wealthy when it failed.
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