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Oct. 25 (Bloomberg) — See if you can make sense of this. Somehow, in the space of seven months, U.S. Attorney General Eric Holder has gone from being:

1) The defeatist law-enforcement chief who told the Senate Judiciary Committee that some banks are too big to prosecute because of the economic damage that might ensue, to

2) The crackdown artist who presided over a meeting in which his team told JPMorgan Chase & Co. Chief Executive Officer Jamie Dimon that the bank would need to enter a guilty plea in order to end a criminal investigation by prosecutors in California.

What gives? Maybe Holder will let JPMorgan skate once the probe is completed. Yet clearly a new approach is afoot. After that meeting, the Justice Department proposed that JPMorgan plead guilty to making false statements related to sales of defective mortgage bonds. The bank proposed a non-prosecution agreement, which Holder rejected, according to an Oct. 22 article by Bloomberg News.

Not long ago, large banks could be fairly confident they wouldn’t face criminal charges in the U.S. no matter what they got caught doing. Now the Justice Department is keeping the threat of such charges hanging over JPMorgan while the bank wraps up $13 billion in civil settlements with various government agencies.

Holder said in an interview that the department’s new aggressiveness on bank investigations was a top priority for both President Barack Obama and himself. (Holder didn’t talk about JPMorgan specifically.) Obama promised in his 2012 State of the Union address to hold banks accountable for their role in helping cause the worst recession since the Great Depression. A task force was set up, and it played a significant role in the pending JPMorgan deal.

Other important questions remain unanswered. For instance, what about before 2012? Why did the Justice Department do so little to go after banks during Obama’s first term?

Here is one way to look at it: For about five years, there were entire categories of wrongdoing by large financial-services companies that were all but deemed exempt from criminal prosecution. We’ve never gotten a satisfactory explanation from anyone in the government as to why.

But it wouldn’t be a surprise if someday we learned that a conscious policy decision was made during the Obama administration’s early days that aggressive investigations of too-big-to-fail banks and their senior executives would be contrary to the national interest because of the threat that prosecutions posed to financial stability and the economic recovery.

Even if this isn’t what happened, the White House and Justice Department must know this is the outward impression they created by their unexplained inaction. What’s more, the facade of trying to look tough while doing almost nothing was coming undone. In August, for example, the Justice Department admitted to grossly inflating how many mortgage-fraud prosecutions it had brought in years past.

A crucial difference between now and when Obama took office is that the stock market has rebounded and the financial-services industry has stabilized after much help from the government, especially the Federal Reserve. Even so, public anger over the lack of accountability has failed to subside, and cynicism about Wall Street’s pull in Washington has skyrocketed. The government didn’t want to be seen as giving the banking industry a pass.

So the administration had to come up with new, creative ways of holding the country’s banks to account. The largest ones seem healthy enough again to withstand government attacks. Yet the five-year statute of limitations for many fraud cases has elapsed. This, of course, presented a problem for the Justice Department, which had to be a bit more inventive than normal.

One of the department’s favorite new tools has been a once-obscure statute called the Financial Institutions Reform, Recovery and Enforcement Act of 1989, which was passed in response to the 1980s savings-and-loan crisis. Federal prosecutors in New York used the act, known as FIRREA, to win their jury verdict this week in a civil trial against Bank of America Corp.

The law, which has a 10-year statute of limitations, lets prosecutors file civil claims for violations of criminal mail-fraud and wire-fraud statutes that affect “a federally insured financial institution.” It is a strange creature that has led to some odd outcomes.

In the case against Bank of America, prosecutors accused the company of defrauding Fannie Mae and Freddie Mac. Those two entities don’t take federally insured deposits. Nonetheless, in an August ruling, U.S. District Judge Jed Rakoff said the case could proceed on the grounds that Bank of America is a federally insured financial institution and that any fraud it may have committed would have affected itself.

That reasoning may follow the letter of the statute, but it isn’t an intuitive basis for a lawsuit. Plus, if the government believes criminal laws were broken, why pursue only civil claims? Maybe it’s because even on their best days, prosecutors seem interested mainly in easy wins for which the burden of proof is low.

We have yet to see what violations the Justice Department will cite in its civil settlement with JPMorgan. Another FIRREA case may be possible. The Justice Department filed a second FIRREA lawsuit against Bank of America in August and, as Bloomberg News reported this week, Bank of America faces three other FIRREA probes across the country. Several other large banks, including Citigroup Inc. and Credit Suisse, are contending with FIRREA investigations, too.

Prosecutors also used FIRREA in their February lawsuit against Standard & Poor’s. In that case, the government alleged that Citigroup was duped by S&P credit ratings on subprime mortgage bonds that Citigroup itself created and sold. Bank of America, too, allegedly was “affected” by S&P’s ratings in the same way. The theory is bizarre at first glance. But for now, the law seems to be on the Justice Department’s side.

There is no telling what great things U.S. prosecutors might have accomplished had Holder and his team been this determined and creative all along, before the biggest fraud cases of the financial crisis turned cold.

(Jonathan Weil is a Bloomberg View columnist.)

Photo: ryanjreilly via Flickr

Many Democrats are getting nervous about the upcoming presidential election. Ominous, extensively reported articles by two of the best in the business—the New Yorker's Jeffrey Toobin and The Atlantic's Barton Gellman—outline Boss Trump's plot to keep control of the White House in 2021 no matter how the American people vote.
Trump is hardly making a secret of it. He's pointedly refused to commit to "a peaceful transfer of power."

"Well, we're going to have to see what happens," is how he answered the question. He added that after we "get rid of the ballots"—presumably mail-in ballots he's been whining about for weeks--"there won't be a transfer, frankly. There'll be a continuation."

Of course, Trump himself has always voted by mail, but then brazen hypocrisy is his standard operating mode. If you haven't noticed, he also lies a lot. Without prevaricating, boasting, and bitching, he'd be mute. And even then, he'd still have Twitter. He recently tweeted that the winner "may NEVER BE ACCURATELY DETERMINED" because mail-in ballots make it a "RIGGED ELECTION in waiting."
Gellman gets this part exactly right in The Atlantic: "Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.
"Trump's invincible commitment to this stance will be the most important fact about the coming Interregnum. It will deform the proceedings from beginning to end. We have not experienced anything like it before."
No, we haven't. However, it's important to remember that Trump makes threats and promises almost daily that never happen. Remember that gigantic border wall Mexico was going to pay for? Trump has built exactly five miles of the fool thing, leaving roughly two thousand to go.
His brilliant cheaper, better health care plan? Non-existent.
On Labor Day, Boss Trump boasted of his unparalleled success in strong-arming Japan into building new auto-manufacturing plants. "They're being built in Ohio, they're being built in South Carolina, North Carolina, they're being built all over and expanded at a level that we've never seen before."
Not a word of that is true. Two new plants, one German, another Swedish have opened in South Carolina, but construction began before Trump took office. Auto industry investment during Barack Obama's second term far exceeded Trump's. His version is sheer make-believe.
But back to the GOP scheme to steal the election.
First, it's clear that even Trump understands that he has virtually no chance of winning the national popular vote. He's been polling in the low 40s, with no sign of change. To have any chance of prevailing in the Electoral College, he's got to do the electoral equivalent of drawing to an inside straight all over again—winning a half-dozen so-called battleground states where he defeated Hillary Clinton in 2016 by the narrowest of margins.
At this writing, that looks highly unlikely. The latest polling in must-win Pennsylvania, for example, shows Trump trailing Joe Biden by nine points. That's a landslide. Trump's down ten in Wisconsin, eight in Michigan. And so on.
So spare me the screeching emails in ALL CAPS, OK? Polls were actually quite accurate in 2016. Trump narrowly defeated the odds. It can happen. But he's in far worse shape this time. Furthermore, early voting turnout is very high, with Democrats outnumbering Republicans two to one.
Hence, The Atlantic reports, "Trump's state and national legal teams are already laying the groundwork for post-election maneuvers that would circumvent the results of the vote count in battleground states."
The plan is clear. Because more Democrats than Republicans are choosing mail-in voting during the COVID pandemic, Trump hopes to prevent those ballots from being counted. Assuming he'll have a narrow "swing state" lead on election night, he'll declare victory and start filing lawsuits. "The red mirage," some Democrats call it.
"As a result," Toobin writes, "the aftermath of the 2020 election has the potential to make 2000 look like a mere skirmish." With Trump in the White House urging armed militias to take to the street.
Mail-in votes take a long time to count. Things could definitely get crazy.
True, but filing a lawsuit to halt a Florida recount was one thing. Filing suits against a half dozen states to prevent votes from being counted at all is quite another. Public reaction would be strong. Also, winning such lawsuits requires serious evidence of fraud. Trumpian bluster ain't evidence.
The Atlantic reports that GOP-controlled state legislatures are thinking about sending Trumpist delegations to the Electoral College regardless of the popular vote winner—theoretically constitutional but currently illegal.
Fat chance. If that's the best they've got, they've got nothing.
Anyway, here's the answer: Vote early, and in person*.

[Editor's note: In some states, receiving an absentee ballot means that a voter can no longer vote in person* or may have to surrender the absentee ballot, including the envelope in which it arrived, at their polling place. Please check with your local election authorities.]