"In today's regulatory environment, it's virtually
impossible to violate rules ... and this is something the public really doesn't
understand ... but it's impossible for you to go - for a violation to go undetected.
Certainly not for a considerable amount of time."
-Bernard L. Madoff, just over a year before turning himself in for perpetrating
what may prove to be the largest financial fraud in history.
After the revelation of a massive fraud scheme, a former government investigator
has accused government law enforcement officials of repeatedly turning a blind
eye to Wall Street crime and, in doing so, allowing the foundational trust of
the global financial system to crumble.
The Securities and Exchange Commission (SEC), the oversight body which was
set up to enforce laws regulating finance in order to prevent a repeat of the
stock market crash of 1929, has admitted to falling down on the job, missing
the long-running scheme allegedly perpetrated by Bernard L. Madoff - potentially
the largest scandal ever to rock Wall Street.
Madoff, a 70-year-old Wall Street icon, turned himself into authorities after
allegedly scamming investors out of up to $50 billion, using what appears to
be a decades long "Ponzi" scheme,
where money from new investors is used to pay off previous investors. The scheme
collapsed because new victims could not be found and investors started to ask
for their money back. Madoff could not return their funds because the money
was gone and there were no real assets to sell. The details of exactly where
the estimated $50 billion went are still unclear, but victims ranging from wealthy
individuals to charities to foreign banks have all stepped forward to admit
losses totaling approximately $20 billion to date.
On Tuesday, SEC chairman Christopher Cox admitted that the agency had failed
to thoroughly investigate multiple "credible and specific allegations regarding
Mr. Madoff's financial wrongdoing," adding "I am gravely concerned
by the apparent multiple failures over at least a decade to thoroughly investigate
these allegations or at any point to seek formal authority to pursue them."
The Madoff affair is the latest in a string of missteps made by the regulatory
body.
Gary Aguirre on the SEC
After a successful career as a trial lawyer, Gary Aguirre turned his attention
to public service, trading in a lucrative practice to become a government lawyer
tasked with investigating financial crimes.
In the course of an investigation into possible insider-trading by hedge fund
Pequot Capital Management, Aguirre pushed to subpoena Wall Street star John
Mack, now the chief executive of finance giant Morgan Stanley. The investigation
was halted by Aguirre's supervisor and the SEC allowed the case to die.
A subsequent report by the internal SEC watchdog found that Aguire's supervisors
acted improperly in firing Aguirre and shutting down his investigation. While
the report recommended punishment against four officials in the chain of command,
Cox declined to hold them accountable.
Aguirre continues to closely follow the activities of officials in Washington,
DC, and executives on Wall Street. I spoke with Aguirre about the significance
of the Madoff fraud and the failure of SEC to stop it.
Matt Renner: Why was Madoff able to hide his activity from
oversight?
Gary Aguirre Madoff was an investment adviser, which means
the SEC had regulatory authority over him. He engaged in a classic kind of fraud
called a 'Ponzi' Scheme, which means that he gave phony profits to
some investors which he took from the pockets of other investors. That kind
of fraud is difficult to detect until investors can't get their money back.
Then it comes to light. In this case, we know that there were repeated complaints
to the SEC over a period of nine years. The SEC was told Madoff was operating
a Ponzi scheme. So, it is stunning that the SEC failed to investigate those
allegations and uncover the fraud. It's a new low for the SEC.
MR: What oversight powers does the SEC hold over this type
of financial activity?
GA: An investment adviser is a regulated entity. The SEC
can obtain a stay order, can bring the whole business to a halt, they can go
in and look at records without a subpoena, they can conduct an audit. SEC has
considerable regulatory authority to examine the ongoing business activities
and do whatever is necessary to protect the public.
MR: Why do you think the SEC didn't use these regulatory
powers in this case?
AG: We can't really prejudge it at this point. There is
a lot of talk in the media that there were personal links between SEC staff
and Madoff. One has been identified; I'm not sure he was the only one involved.
But stepping beyond personal connections, in general, I believe that the SEC
has been reluctant to apply the securities laws to the big players, to Wall
Street's elite. They have often gotten a pass. The SEC is focused on the small
players.
In the investigation that I conducted, which is now the subject of a Senate
report, there was suspicious trading activity involving both a hedge fund involving
an $18 million profit. They also detected a $150,000 profit by a low-level employee
of General Electric (GE) and a Taiwanese kung fu instructor. SEC passed on the
hedge fund case where the trading indicated millions in profit and SEC focused
on the GE employee and the kung fu instructor. The SEC and the US attorney rigorously
prosecuted the low-level GE employee, but both passed on any investigation of
the major hedge fund.
This is not a rarity; it is more the practice. The exception is when they look
at an elite player on Wall Street. Not only is it an exception, if you try to
pursue a big player as I did; it can be career-shortening experience. At the
SEC, it is a culture of deference. That culture is intolerant of investigations
into the Wall Street elite. Keep in mind that the SEC was created to keep an
eye on Wall Street, so it has completely lost sight of its mission and that
is why we have a situation like the one with Madoff.
MR: What is it about the culture at SEC that steers them
away from looking at the big Wall Street players?
AG: All the agencies have to some extent or another a revolving
door [where government employees rotate out to the private sector and earn more
money]. But at the SEC, what you rotate into is an enormous salary leap. SEC
managers may make $200,000. That same person may make $2 million as a starting
salary on the outside and can move up from there. Now, when he leaves, I'm not
sure he's worth $2 million as a lawyer, but he takes his Rolodex with him and
that Rolodex is gold. The system maintains itself, because those that stay know
their turn will come if they play the game. They see a director or associate
director move onto a $2 million job with a Wall Street law firm. Then, the departed
employee calls back to his former colleagues and says, "you know I really
don't think there is much of a case against so-and-so, I'd like for you to take
a look at it." And the case goes away; the system goes on in perpetuity.
MR: Did you see the revolving door in action in your case?
(On January 31, 2005, prior to the phone call mentioned below, an email beginning
with the word "Yowza!" was sent from Jan Lower, an attorney at the
Debevoise and Plimpton law firm, to Aguirre's supervisor Paul Burger. The email
described in detail the potential earnings that a former SEC official could
receive at the Debevoise and Plimpton law firm - $2 million a year.)
AG:Senior officials at the SEC got a call from Debevoise
lawyer asking about a case I was handling. It was clear she wanted the investigation
of John Mack to go away so he could become Morgan Stanley's new CEO. And it
did go away. SEC associate director Paul Berger derailed the investigation and
when I questioned that decision, fired me. Within a few days of firing me, he
made an inquiry through one of his colleagues to the Debevoise law firm to see
if they were interested in hiring him. After the case against Mack was dead,
Berger took a job with Debevoise and that is where he's working now. I'll let
you draw your own inferences.
What you have when you leave the SEC is contacts with the SEC, you have the
Rolodex and the ability to call back to people you used to work with. I don't
want to single out Burger, I think that is really the culture there. A culture
of 'don't rock the boat,' the industry does not want 'boy scouts,' and if you
can be effective with the SEC through your contacts, that is a very valuable
asset you can bring to the table.
(An August 2007 report, page 83,
by the Senate Finance and Judiciary committees backs up Aguirre's charges against
Burger. The report also found that Berger failed to disclose the date of his
initial contact with the Debevoise firm to Senate investigators.)
MR: Do you have faith that SEC chairman Christopher Cox
will listen to the SEC inspector general?
AG: Cox will be leaving in a couple of weeks. Mary Shapiro
will likely be coming in. It may be easier for IG to do a no-holds-barred report
on what has happened in the Madoff case. There is an expectation that the SEC
will face rigorous scrutiny by the new administration because the SEC's failures
were a primary cause of the deepening financial crisis. Many expect the new
chairman will focus on what can be done to clean up the SEC. As part of that,
Kotz's investigation of the Madoff affair would be helpful.
Counter to that, is the fact that Kotz issued two reports in September. They
called for discipline for all the SEC supervisors involved in my discharge,
and similar discipline for the head of the Miami office on the Bear Stearns
investigation. In those cases, nothing happened. Worse yet, Cox appointed someone
to trash the Kotz reports and indirectly Kotz himself. So, Kotz may be a little
gun-shy at this point.
MR: Experts have said that it is impossible to get away
with this level of fraud for such a long time. Madoff himself said this in 2007.
Do you have faith in the current securities law enforcement agencies?
AG: I think we've had a collapse of the markets caused by
three different factors. The three factors all point to the failure of regulatory
entities to carry out their missions. One area is the liquidity and capitalization
of the major banks, which SEC was supposed to keep an eye on. We've had one
bank fail after another. When you look at the scope of those failures, and the
magnitude of those failures, you have to ask yourself, how could anybody miss
the red flags that these banks were in deep trouble.
The second factor is market manipulation and insider trading. It has been a
colossal failure by the SEC. Its failure to investigate the big players gave
them a sense they were invulnerable. So, the just got bolder.
The SEC seemed to be doing its best job on investment fraud, but some of the
fraud that has surfaced before Madoff raised some questions about the SEC. Madoff
is on a new scale. It is a ten on the Richter scale. There were some preshocks
that should have been picked up. It was the SEC's strong suit and they missed
it. There has been a regulatory failure in this area; by the SEC, FBI, Department
of Justice and local US attorneys' offices.
The SEC has a budget of around $1 billion. It's not enough to police the financial
industry, but it is enough to show that you can do things efficiently and competently.
Occasionally, you can bring a case against somebody who has a significant effect
on the markets and detect the fraud, conduct the surgery rather than the autopsy.
MR: Do you think there are other Madoffs out there?
AG: We have to look back in history. Yes, I do. I believe
there are other Madoffs out there. I don't think that the banks are finished
collapsing and imploding, and I think we will also see more evidence of market
abuse and insider trading. The way it works is when markets are going up, none
of this comes to light. But when you have the markets begin to go into free
fall and people begin losing money, it becomes hard to conceal the fraud. That's
what happened in Madoff's case. In 1929, when the market crashed and the Senate
Banking Committee surveyed the rubble, they discovered all kinds of fraud by
Wall Street elite.
I'm not sure that all of the dirt has come to light at this point. I think
one reason for that is because [Treasury Secretary Henry] Paulson, a representative
of Wall Street, has been pumping money into the system. We're transferring trillions
of dollars from taxpayer's pockets to Wall Street to try to stem the downward
cycle that we are in and perhaps to some extent we have. But that may help conceal
the extent of the fraud. It is when the veneer is completely stripped away;
that's when you discover the fraud. To the extent that we are pouring trillions
into the capital markets, we may delay, postpone or even prevent the full extent
of the fraud from surfacing. But I think it is out there and I don't think the
downward cycle has ended yet. As long as it continues, we'll discover more.