Credit Suisse, the gigantic Swiss bank, is clearly a criminal organization. In its guilty plea yesterday, Credit Suisse admitted that it has been actively helping Americans (and no doubt people from all around the world) evade taxes for years:
For decades prior to and through in or about 2009, . . . Credit Suisse did unlawfully, voluntary, intentionally, and knowingly conspire, combine, confederate, and agree together with others . . . to willfully aid, assist in, procure, counsel, and advise the preparation and presentation of false income tax returns and other documents to the Internal Revenue Service.
The Justice Department is crowing about its newfound willingness to convict major financial institutions, with Eric Holder claiming, “This case shows that no financial institution, no matter its size or global reach, is above the law.” The guilty plea certainly seems like a step forward from the neither-admit-nor-deny settlements that banks have counted on for the past decade. But there is a risk that the Credit Suisse deal—the guilty plea coupled with ample assurances that the admitted criminal will be allowed to remain in business—could become the new version of the deferred prosecution agreement: an outcome that makes everyone happy, yet punishes no one, and ultimately becomes just another cost of doing business.
There are two main ways to really punish criminals and deter wrongdoing in the future. One is criminal prosecutions of the individuals involved, ideally getting lower-level employees to cooperate and gathering evidence as far up the management hierarchy as possible. (There are ongoing prosecutions against several Credit Suisse employees.) The other is putting a bank out of business by revoking its license. Even if he escapes jail, no CEO wants that on his résumé. And it seems entirely appropriate for a bank that engages in a decades-long criminal conspiracy that costs U.S. taxpayers billions of dollars.
The conventional wisdom, however, is that you can’t revoke a large bank’s license because of potential systemic consequences. (That’s why prosecutors only pressed for the guilty plea after receiving assurances that regulators would not revoke Credit Suisse’s licenses.) If this is true, of course, that’s an overwhelming argument that such “too big to jail” banks shouldn’t exist in the first place. We don’t want a financial system dominated by banks that can willfully flout the law.
But is it even true in the first place? The reason some financial institutions are too big to fail (or jail) is that their collapse could trigger losses at other major institutions and provoke a systemwide panic. That was the lesson of AIG: If it had failed to make good on its credit default swaps, various pillars of the financial system could have collapsed, and no one knew how far the damage would spread.