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Even there his record was more mixed than is popularly understood. As Sheelah Kolhatkar
demonstrates in her propulsive and riveting “Black Edge,” when it came to bringing his
biggest whale to justice, Steve Cohen of SAC Capital, the Southern District blinked. They
did not charge him, only securing a guilty plea from his firm.
Present and former prosecutors say Bharara did not give much emphasis to investigations
arising from the financial meltdown, an approach shared by his boss, Attorney General Eric
Holder. Justice Department insiders say many of those inquiries withered not because they
were unpromising, but because they had little support.
Bharara missed an opportunity by not bringing any significant criminal charges against
individuals in the wake of the collapses of Lehman, investment bank Merrill Lynch, the
insurer AIG, the mortgage securities and collateralized debt obligation businesses, or the
myriad public misrepresentations from bank CEOs about their finances.
Bharara and senior officials in Washington argue that there were no criminal cases to file
after the 2008 crisis. But the U.S. attorney’s office in Manhattan did pursue significant civil
cases against the banks for their mortgage activities, cases that had to proove misconduct by
the “preponderance of the evidence.” And DOJ did win guilty pleas from the banks
themselves, an indication that prosecutors might have been able to charge individuals for
their part in crimes their institutions had acknowledged. Academics who studied those years,
including Columbia’s Tomasz Piskorski and James Witkin and Chicago’s Amit Seru found
widespread patterns of fraud in the mortgage business.
The exception makes this failure all the more puzzling. As I detailed in 2014, Bharara’s
office brought one case for misconduct during the financial crisis — against a mid-level
banker. Prosecutors charged Kareem Serageldin of Credit Suisse with overseeing traders
who knowingly misrepresented the value of mortgage securities. Serageldin pleaded guilty
and went to prison.
Serageldin’s colleagues in the industry and others familiar with Credit Suisse found it hard
to believe that he was the only person involved in that particular fraud.
Bharara’s reluctance to pursue senior executives was seen in other investigations of big
banks. His office wrested a $1.7 billion fine from JPMorgan Chase over its complicity in the
Bernie Madoff Ponzi scheme, but it brought no charges against individual bankers.
One odd aspect of his tenure was the Southern District’s willingness to defer to other
jurisdictions when it came to Wall Street cases.
Historically, the SDNY has been the leading enforcers of securities laws, nicknamed the
“sovereign district” for its propensity to grab corporate fraud cases from elsewhere on the
flimsiest of jurisdictional pretexts. Under Bharara, the southern district let other U.S.
attorneys claim investigations into residential mortgage-backed securities, the instruments at
the heart of the financial crisis. Those other offices were not nearly as versed in complex
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