The US Attorney for the Southern District of New York, Preet Bharara, indicated today that criminal charges may be pending against a major Wall Street financial institution.

Preet Bharara Financial Institution

Charging the institution and not individuals

“You can expect that before long a significant financial institution will be changed with a felony or be made to plead guilty to a felony,” the Twitter account of the Southern District of New York (@SDNYnews) posted.

Hesitation to investigate and much less prosecute financial firms

The US Department of Justice has long been hesitant to prosecute Wall Street financial institutions for fear it could lead to damaging the US economy.  In fact, the DoJ’s criminal division, when led by Lanny Breuer, had admitted that it did not fully investigate criminal leads in the mortgage-backed derivatives market, in particular at Countrywide.  Further, when interviewed by FrontLine’s Martin Smith, Breuer admitted that investigations into some of Wall Street’s most powerful figures were halted.  The days following this interview, Breuer and his press chief left the DoJ.

Financial institution’s lack of deterrence

Failure to investigate and prosecute criminal behavior on Wall Street has led to calls from large hedge fund players that Wall Street is “lawless,” and that deterrence of crime has completely broken down, Wall Street observers had assumed the prosecution would come on an individual basis where the potential for market damage was the lightest.  However, in the Tweets from Bharara, indications are the US Attorney is prepared to file charges against the entire financial institution.

“When institutions are held to account for institutional failures, then responsible institutions will and do respond,” another Tweet from the judicial office typically responsible for Wall Street criminal prosecution said.

Were tweets a negotiation tactic?

It is unclear at this point if the tweets were an attempt to move the needle on negotiations with an existing financial institution, as the tweets significantly noted that the institution would either plead guilty or face charges.

“A breakdown in a system requires an overhaul of the system,” another in a series of four tweets released minutes from each other said.  For the US Attorney in New York to consider the system has broken down is a significant development.  While hedge fund executives have noted both publically and privately that Wall Street is “lawless,” for a leading law enforcement official to make such a statement is highly unusual and an indication of the commitment to what could be a “law and order” solution to the problem.

The critical component of success in financial regulation is deterrence – the belief that if illegal behavior were to occur the law would be equally enforced and justice would be served.  Wall Street insiders had come to expect that certain powerful banks and top players in the banking community were exempt from prosecution.  Some say a lack of deterrence resulted in episodes such as MF Global Holdings Ltd (OTCMKTS:MFGLQ).  In this episode, speculation among observers is top executives transferred customer assets to cover firm expenses after being given clear warnings from regulators not to do so – all potentially with the belief that they would not be investigated, much less prosecuted.

When asked to comment on the tweets, the US Attorney’s office in New York did not respond by press time.