AG Holder Confirms Some Banks 'Too Big to Jail'

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WASHINGTON — U.S. Attorney General Eric Holder said Wednesday that a bank's size can make it difficult to prosecute, adding significant weight to critics' concerns that some institutions are "too big to jail."

Lawmakers, including Sens. Elizabeth Warren, D-Mass., Sherrod Brown, D-Ohio, and Chuck Grassley, R-Iowa, are among a growing coalition of bipartisan policymakers who say more must be done to confront "too big to fail" institutions when they engage in wrongdoing. Their arguments have been bolstered after the Justice Department announced a $1.92 billion settlement with HSBC to settle anti-money laundering problems related to terrorist financing and drug trafficking, but did not seek to prosecute the bank or any of its employees.

Holder told the Senate Judiciary Committee that the size and interconnectedness of some institutions has "made it difficult for us to prosecute" in some cases, in response to a question from Grassley, the panel's lead Republican, about the HSBC deal.

"I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if we do prosecute — if we do bring a criminal charge — it will have a negative impact on the national economy, perhaps even the world economy," said Holder, who cautioned he was speaking generally and not about the HSBC case specifically. "I think that is a function of the fact that some of these institutions have become too large."

Addressing bank size is something lawmakers in Congress would "need to consider," he added.

But Holder defended the Justice Department's efforts in prosecuting those who may have contributed to the financial crisis, like bankers who repackaged bad mortgages into securities that were sold with high ratings. Many critics have asked why more crisis-era cases haven't been made in the five years since the crisis.

"I think we have been appropriately aggressive, these are not always easy cases to make. When you look at these cases, you see that things were done 'wrong' then the question is whether or not they were illegal," said Holder. "And I think the people in our criminal division... I think have been as aggressive as they could be, brought cases where we think we could have brought them. I know that in some instances that has not been a satisfying answer to people, but we have been as aggressive as we could have been."

The top Justice Department official's comments will no doubt fan the flames of those frustrated with the lack of criminal prosecutions brought against the big banks, and likely energize those pushing for legislative reforms to break up the largest institutions or otherwise regulate their size.

"By adding his voice to the 'too big to jail' debate, Holder has now joined a growing chorus of policymakers — on both sides of the aisle — who are focusing their attention on the size of the world's largest banking institutions," said Isaac Boltansky, a policy analyst at Compass Point Research & Trading. "Although Holder's answer was somewhat of a strategic deflection to pointed questions, it was an important admission nonetheless given his position. We continue to doubt that 'too big to fail' legislation can pass in this Congress but Holder's statement will unquestionably add addition momentum to the legislative effort."

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