JPMorgan Facing Criminal Probe For Pre-Crash Mortgage Securities Fraud

With the clock ticking down on the 10-year statute of limitations for financial crimes prior to the 2008 financial crisis, the Department of Justice appears to be finally ready to take a shot at criminal charges against the Wall Street banks that brought the economy to its knees. On Tuesday, The Wall Street Journal reported JPMorgan Chase and Royal Bank of Scotland (RBS) are facing criminal probes for selling fraudulent mortgage-backed securities that led to the 08 crash.

Both RBS and JPMorgan have acknowledged in company filings that they are facing criminal investigations related to their mortgage securities practices. RBS disclosed it was facing a civil and criminal investigation in a July securities filing and JPMorgan confirmed the existence of a criminal probe by DOJ in its quarterly securities filing on November 2, which referred to “an ongoing investigation being conducted by DOJ’s Criminal Division.”

According to the Journal’s report, DOJ officials think the case against RBS is stronger and officials are divided as to whether there is enough evidence to bring a criminal case against JPMorgan. The focus of the investigation at JPMorgan is reportedly on two employees that worked on a “residential mortgage deal.”

The criminal investigation into JPMorgan reportedly emanates from the evidence gathered during the investigation that led to the historic $9 billion civil settlement [PDF]. JPMorgan agreed to pay the settlement, in part, because the government had a whistleblower named Alayne Fleischmann willing to testify that she, as a compliance officer at JPMorgan, personally witnessed management participate and facilitate mortgage-securities fraud. There was even a smoking gun 2007 memo.

In other words, the Justice Department undeniably has grounds for a case. Previous to this point, the justification for not bringing criminal charges against JPMorgan was fear that doing so would re-crash financial markets, the so-called Too Big To Jail theory promoted by both former US Attorney General Eric Holder and former DOJ Criminal Division Head Lanny Breuer.

Many never bought into that theory in the first place and found it to be a self-serving rationalization from former Wall Street lawyers to not bring charges against prior and future private sector clients.

Regardless of the virtues (or lack thereof) of Too Big To Jail, there is little evidence that under current conditions, bringing criminal charges against JPMorgan executives would cause another financial crisis. In fact, DOJ announced a new policy that should, in theory, normalize the practice of bringing criminal charges against corporate executives, including those in the financial services industry.

So what is the Department of Justice waiting for? They have the mandate, they have the evidence, and the clock is ticking.