Goldman Sachs $5bn fine is a sham and a disgrace

“Recently Goldman Sachs reached a settlement with the federal government for $5 billion because they were selling worthless packages of subprime mortgages,” Bernie Sanders shouted (as he does) in the last Democratic presidential debate. “If you are a kid caught with marijuana in Michigan, you get a police record. If you are an executive on Wall Street that destroys the American economy, you pay a $5 billion fine, no police record.”

This lack of accountability for Wall Street and the perception of a two-tiered justice system gnaws away at Americans’ trust. But now that the Goldman Sachs settlement Sanders referred to has been finalized, I’m sorry to say that he was wrong. If you are an executive on Wall Street who destroys the American economy, you don’t pay a $5 billion fine. You pay much, much less. In fact, you can make a credible case that Goldman won’t pay a fine at all. They will merely send a cut of profits from long-ago fraudulent activity to a shakedown artist, also known as U.S. law enforcement.

The Justice Department announcement in the Goldman case states that between 2005 and 2007, the investment bank marketed and sold mortgage-backed securities to investors that were of lower quality than promised. As a result, Goldman will pay a $2.385 billion civil penalty to the Justice Department, $875 million resolving claims from other state and federal agencies, and $1.8 billion in so-called “consumer relief” measures, like forgiving principal on loans and providing financing for affordable housing. That’s where the much-touted $5 billion figure comes from.

In The New York Times, Nathaniel Popper took a careful look at the consumer relief provisions, finding that Goldman Sachs could pay up to $1 billion less than advertised, because the company gets extra credit for spending in certain hard-hit communities or for meeting its obligations within the first six months. I appreciate Popper’s precision, but it’s unnecessary. None of this consumer relief represents a penalty on Goldman at all.

That’s because Goldman Sachs doesn’t own any of the loans it’ll be modifying. They were sold to investors years ago. Goldman will quite literally pay that fine with someone else’s money; in fact, the money comes from the very investors Goldman victimized, by selling them toxic securities under false pretenses.

So what about the consumer relief that goes toward financing affordable housing and community reinvestment? This involves making loans, a moneymaking activity for banks (indeed, their primary function). Getting banks to lend in poor communities, which they often neglect, is laudable in some sense. But it’s hardly a penalty for Goldman Sachs. I have described this in the past as akin to sentencing a bank robber to opening a lemonade stand.

This brings the $5 billion settlement down to $3.2 billion. But only $2.385 billion of the total comes in the form of a cash civil penalty. The rest is tax deductible, as a business expense. Considering the indeterminate dollar value of the consumer relief, it’s hard to say how much money Goldman will be able to write off. But going with the Justice Department’s numbers, you have $2.615 billion in tax-deductible penalty, which at a 35 percent corporate tax rate equals a write-off of $915 million. That means nearly $1 billion of the settlement is effectively financed by taxpayers.

So now we’re at approximately $2.3 billion. But let’s go back: The misconduct in question occurred between 2005 and 2007. The real value in 2016 dollars of a portion of profits made from 2005 to 2007 is substantially less, perhaps closer to $2 billion. More important, Goldman got to keep the money it made illegally for a decade before having to give any of it back. Goldman’s asset-management unit consistently predicts annual growth above ten percent, meaning that the company fully expects to double its money within ten years. Taking that into account, Goldman didn’t really pay a penalty at all, but used ill-gotten gains to generate a bunch of money, only returning some principal well after the fact while keeping the returns.

Goldman Sachs made far more than $2 billion on the sale of mortgage-backed securities, by the way. Check out this list from the settlement documents of all the securitizations they issued that are covered by the settlement; it comes to roughly 530 securitizations, each of which typically held $1 billion in loans. I wouldn’t insult Goldman’s money-earning prowess by suggesting it only made $2 billion in profit on $530 billion in mortgage-backed securities. So even if you think Goldman is paying some kind of penalty, at best it’s a cut of the profits.

And who benefits from Goldman’s payments? Not the investors who were the actual victims of the misconduct; as I noted before they end up paying more money by seeing principal cut on the loans they own. Some homeowners get affordable loans or reduced mortgage debt, even though Goldman Sachs specifically harmed investors. But the biggest beneficiaries in this transaction are the Justice Department, the New York Attorney General’s office, and the other state and federal agencies who receive cash awards, from the civil penalty and the resolution of other claims.

The upshot: Law enforcement settled a case on behalf of investors and then walked away with the proceeds, while investors got nothing. Goldman Sachs and the Justice Department get to divvy up the profits of a fraud scheme perpetrated on the public.

The Goldman Sachs settlement is the last of a series of enforcement actions hammered out by a state/federal task force on financial fraud, co-chaired by New York Attorney General Eric Schneiderman. Four other banks—JPMorgan Chase, Bank of America, Citigroup, and Morgan Stanley—paid similarly dubious fines over the packaging and sale of fraudulent mortgage-backed securities. The origins of this task force represent a failed choice by Schneiderman that let even more damaging misconduct on the part of banks go relatively unpunished.

I recount this full story in my book Chain of Title, which comes out next month. But to summarize, mortgage companies (units of these same big banks) delivered millions of forged and fabricated documents to courthouses and county registrars nationwide, false evidence used to foreclose on homeowners when the companies otherwise had no standing to do so. This was dubbed foreclosure fraud, and with millions of examples of wrongdoing, it represented the best opportunity to prosecute executives who authorized and directed the scheme, as well as to use that legal exposure to reach an equitable resolution that kept people in their homes.

Instead of a vigorous investigation, the Justice Department and 50 state attorneys general moved directly to negotiating a settlement. Schneiderman initially opposed that, but reversed himself. He theorized that the real money wasn’t in foreclosure fraud, but in this criminal packaging and selling of securitizations, this defrauding of investors. So he made a deal to create a task force with enough resources to examine and prosecute that misconduct.

All that evidence of fraudulent foreclosures, the largest consumer fraud in American history, turned into the National Mortgage Settlement, a “$25 billion penalty” against five mortgage companies, where only $5 billion was in the form of cash. Despite promises that 1 million homeowners would see principal reductions from that settlement, only 83,000 ever did. But no matter; Schneiderman promised that the task force would result in outcomes “an order of magnitude” bigger.

That simply didn’t happen. Once you weed out the tax deductions, the payments with other people’s money, and all the rest, the final task force tally is miniscule. A couple years ago I surmised that the $36.65 billion coughed up by Bank of America, Citigroup, and JPMorgan Chase translated into just $11.5 billion in reality. And the Goldman settlement looks like it will cost the bank more like $0, when all is said and done.

So the most wide-ranging financial crisis misconduct was quickly settled without investigation. And despite Schneiderman swearing that the task force would explore all options for accountability, none of its members ever issued a single criminal subpoena. The banks bought their way out of the problem on the cheap, no executive saw a jail cell or had to return a penny of personal compensation, and the law enforcement agencies, not the victims, reaped the majority of the rewards.

At that March 9 Democratic debate, Sanders closed his remarks on Goldman Sachs by vowing, “we are going to bring justice back to a broken criminal justice system.” He has no idea how dire that need is. We don’t have a justice system with the courage to convict everyone, regardless of wealth and power. And that ensures that the wealthy and powerful will keep committing crimes.