Why the SEC Might Fail to Bring Down Goldman

Populists: start praying

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Almost as soon as the SEC filed suit against popular bugbear Goldman Sachs, the questions began: would the SEC really be able to pin down the megabank in a court of law? Could the head honchos finally feel the heat? Today, top media headlines are expressing more skepticism. What started out looking like a dramatic, "gotcha" sort of case is beginning to look more wobbly--at least to some analysts. Here are the elements of their case against the case against Goldman--in short, what the SEC fans should be worried about:

  • 'Experts' Skeptical, reports Binyamin Appelbaum in analysis for The New York Times, explaining why the SEC is "pursuing an unusual claim that could be difficult to prove in court"; those familiar with securities law say "fraud cases like this one, which focuses on context rather than content, are generally more difficult to win, because it can be hard to persuade a jury that the missing information might have led buyers to walk away." The SEC could have a watertight case, but it's kept its cards close so far, so it's hard to tell.
  • Ex-Obama Counsel Defending Goldman  Politico's Eamon Javers and Mike Allen analyze the hiring of Gregory Craig, former White House counsel: "in Craig, Goldman Sachs will have help from a lawyer with deep connections in Democratic circles." That, combined with his understanding of how Washington works, Javers and Allen argue, could be very helpful in a defense that will be largely "an attempt to discredit the [SEC] by painting the case as tainted by politics." Michael Roston dives into just how bad this looks, over at True/Slant.
Republicans keep charging that they're too friendly to Wall Street to really reform Wall Street. And now here's evidence--Obama's former top legal adviser goes to work for Goldman Sachs as it faces down the Securities and Exchange Commission's fraud allegations. That Obama couldn't personally ask that Craig step away from Goldman’s request is a sign of how deep the breach was between the two upon the latter's ouster. Unless, of course, Obama doesn’t want to confront Goldman that seriously. In which case this is perfect.
  • Goldman's Defense Has Legs?  If Goldman is out to prove the SEC's suit is merely political, it's got some support in the media. The Atlantic's Daniel Indiviglio compares the "fishy" timing of the suit (in the midst of financial reform debate) to Reese Witherspoon contracting "a rare, aggressive--but curable--illness" on the eve of health care reform. Meanwhile Kara Scannell reports for The Wall Street Journal that the SEC commissioners "split on party lines" over the suit. She calls this "unusual" and suggests the news could "exacerbate partisan tensions."
  • The Market Sure Thinks So, notes Business Insider's Joe Weisenthal (Business Insider's Henry Blodget has been highly skeptical of the SEC case from the beginning). He proposes that the bounceback in Goldman stocks may have something to do with the SEC case "look[ing] more and more porous ... not just porous but partisan."
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