In Libor Scandal, Prosecutors Need to Think Criminal

People do what it pays them to do. In the Libor scandal that's taken out Barclays' (BCS) Chief Executive Robert Diamond in the past day, and will soon engulf other big banks, one thing's already clear: Traders at some of the world's largest financial institutions were of the view that it pays to manipulate the London interbank offered rate — the basis for trillions of dollars of commercial and consumer credit.

As emails revealed through the Barclays settlement illustrate, the bank's traders knew what they were doing was manipulation and that it was wrong:

Submitter: "Hi all, just as an FYI, I will be in noonish on Monday."

Trader: "Noonish? Who's going to put my low fixings in? hehehe."

It's akin to the old Enron-Merrill Lynch Nigerian barge scam that became a running joke during the tech bust a decade ago. It's also reminiscent of the insider trading that more recently has resulted in criminal convictions and prison time for several dozen conspirators, including former hedge fund billionaire Raj Rajaratnam and former McKinsey boss Rajat Gupta.

The Libor scandal likewise has all the markings of an insiders' game that calls for more than big fines for the perpetrators. Who's really on the hook for the $450 million settlement that Barclays agreed to pay and the hit to the bank's market cap? Shareholders, of course.

Justice will be far better served — and examples made — if prosecutors take an aggressive and creative look at whether they should try to put behind bars those responsible for manipulating what the world pays for credit and those above them who looked the other way.

In the wake of the tech bust a decade ago, prosecutors showed such initiative, including prosecutions for "failure to provide honest services." The result was that several senior executives behind colossal corporate losses were found guilty of criminal wrongdoing. That included Enron's Ken Lay, Andrew Fastow and Jeffrey Skilling, WorldCom's Bernard Ebbers and Scott Sullivan and Tyco's Dennis Kozlowski and Mark Swartz.

This time around, Lehman's infamous "Repo 105" scandal came and went without anyone responsible taking a hit. Likewise Bear Stearns, AIG, Countrywide and many other financial firms went under as law enforcers shrugged. Those responsible mostly went on with the gilded lives. Only in the egregious case of Taylor, Bean, & Whitaker did top management face criminal consequences.

This lack of accountability has convinced the public that Wall Street plays by a different set of rules than the rank-and-file. JPMorgan Chase's (JPM) recent loss and the kid-glove reception by the Senate in its wake for Chief Executive Jamie Dimon recently only reinforced that view. And now, perhaps the most craven and outrageous scandal of all: Liborgate.

Until the Justice Department, Securities and Exchange Commission and the UK's Financial Services Authority show the same aggressiveness and creativity in prosecuting financial wrongdoing as certain elements on Wall Street show in perpetrating it, the games will go on and the public's cynicism will continue to mount.

In a world where shareholders pick up the tabs for corrupt traders, and where the Federal Reserve's zero interest rate policy bails out debtors at the expense of savers, it's little wonder that Wall Street and capitalism itself are so out of favor. It's time our law enforcers get serious about flushing the crony capitalists out of the system so the good, wealth-creating capitalists — and the bankers who play such a vital role in funding them — won't continue to suffer the consequences.

Neil Weinberg is the editor in chief of American Banker. The views expressed are his own.

QUESTION: Do you think aggressive criminal prosecutions of financial wrongdoing would help clean up the system or result in a witch hunt? Share your views in the Comments section below.