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Too big to fail, too rich to jail: HSBC, Reddit's Aaron Swartz and the rule of law

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Aaron Swartz
Reddit co-founder Aaron Swartz  Planetivy.com

It was called a “dark day for the rule of law” by the New York Times when the Department of Justice (DOJ) decided not to pursue criminal charges against banking giant HSBC for helping terrorist groups, foreign governments and Mexican drug cartels launder money. That day became even darker, if only by contrast, with the recent news of Aaron Swartz's suicide.

Swartz was the co-founder of the hugely popular website Reddit and an activist who argued that technological developments could be used to democratize information. In 2011, Swartz downloaded 5 million scholarly articles from the JSTOR archive and purportedly planned to release them to the public, earning Swartz a federal indictment and 13 federal felony charges.

It’s still not clear how much his impending trial may have contributed to Swartz’s propensity for depression, but friends and family have publicly speculated that the federal charges drove him to suicide.

HSBC is one of the largest banks in the world, with 2008 global assets totaling over $2,300 billion. A 2012 investigation by the Office of the Comptroller of Currency (OCC) found that HSBC had assisted in laundering money for Mexican drug cartels, the Iranian and Syrian governments and other blacklisted groups.

Subsequent investigations by the Federal Reserve found “significant potential for unreported money laundering or terrorist financing,” including $19.4 billion in transactions for the Iranian government, $7 billion in banknote transfers from the Mexican to the U.S. HSBC branch (the majority of which were drug-related), knowingly ignoring terrorist financing links, and actively assisting money launderers in avoiding scrutiny from U.S. law enforcement.

HSBC’s only punishment for these transgressions was a $1.92 billion settlement to the U.S. government, with more payments expected as other federal investigations are settled.  

When pressed as to why HSBC would not face any criminal charges, the DOJ responded that HSBC had effectively threatened capital flight. “[T]the consequences of a criminal prosecution would have been dire,” explained assistant attorney general Lanny Breuer during a DOJ press conference. “Had the U.S. authorities decided to press criminal charges, HSBC would almost certainly have lost its banking license in the U.S.… and the entire banking system would have been destabilized."

 The yawning gap between Swartz’s punishment and HSBC’s lack thereof represents yet another cynical reminder that the wealthy and powerful play by their own rules.

In other words, HSBC is too big and too rich to prosecute. 

We need not waste time with a thought experiment that imagines what would happen if an ordinary citizen had committed the same crimes as HSBC. As Glenn Greenwald points on in a seething Guardian op-ed, “powerless, obscure, low-level [bank] employees are routinely sentenced to long prison terms for engaging in relatively petty money laundering schemes, unrelated to terrorism, and on a scale that is a tiny fraction of what HSBC and its senior officials are alleged to have done.”

Greenwald also points out that $2 billion amounts to about four weeks of earnings for the banking giant — a speeding ticket to the great unwashed masses.

Contrast HSBC’s “punishment” with that of Swartz. What kind of message does it send when a man whose only crime was planning to release scholarly research to the public for free is treated as more of a criminal than a multinational corporation that helped drug traffickers, terrorists and despots finance their nefarious activities?

The yawning gap between Swartz’s punishment and HSBC’s lack thereof represents yet another cynical reminder that the wealthy and powerful play by their own rules.

The qualification that HSBC is “too big to prosecute” recalls another familiar construction, circa 2008, when the U.S. government put taxpayers on the hook to bail out corporations which had torpedoed the economy through systematic acts of fraud and con artistry, all because these corporations were “too big to fail.”

Allowing them to go out of business, the logic went, would cripple the economy critically, since these banks had positioned themselves with such overwhelming control of economic activity that, if they went down, the rest of the economy would go down with them.

To citizens already feeling the squeeze of a recession, it seemed that the government had taken money from those affected most by the financial collapse and used it to pay those who caused the financial collapse. In my view, these criticisms, while justified, missed the most important question: Why were these corporations allowed to become so large that they could hold the entire economy hostage in the first place?

Worse, all the banks at the heart of the financial collapse are now bigger than they were in 2008. The five largest banks in the U.S. now have control over around 44 percent of all U.S. bank deposits, up from 37 percent in 2007 and 28 percent in 2003. The reason the banks have grown, according to economist and former Clinton labor secretary Robert Reich, is that investors feel assured that the government will require taxpayers to pick up the tab no matter what the banks do.

By immunizing HSBC from prosecution, the government has effectively given investors the added comfort that these banks can even engage in heinous criminal activities and will still be treated as being above the law.

Reich predicted that the big banks will be broken up by the government this year, as more private sector and government officials realize that a bank too big to fail is a bank too big to exist. Certainly a bank too big to be subject to the rule of law is too big to exist as well.

If there could be some quiet note of optimism to this shameful miscarriage of justice, perhaps it would be that HSBC’s crimes and the U.S. government’s tolerance of them will only further propel efforts to break up the big banks and to end corporate personhood — the judicial precedent which, in theory, legally treats corporations as persons but in practice actually grants corporations all the benefits of legally being considered persons (such as the right to claim freedom of speech) and none of the responsibilities (such as being held accountable for crimes).

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