This Is Not Criminalizing Failure

The FDIC is suing 3 former WAMU executives for $900 million, which I call a good start.

Felix Salmon, who I generally find to be pretty good on such things, calls it criminalizing failure:

If the risks they took paid off, they would have been hailed as heroes, and the FDIC would have no problem with their behavior. There certainly wouldn’t have been a lawsuit like this one, since the FDIC has to show that it suffered damages before it can bring it.

I don’t like the idea of criminalizing failure. Banks by their nature are leveraged institutions which are vulnerable to runs and to declines in their asset values. There’s always a natural tension between managers, who are looking to maximize profits, and regulators, who are looking to minimize risks. But in this case there’s no indication that WaMu’s regulators, including the FDIC, expressed any concern about Killinger’s strategy. If they were OK with it, at the time, it’s easy to see how the executives considered that a green light to go ahead and implement it with gusto.

But at the same time, it’s unconscionable that these guys should be able to get away with what they did just because they did it out in the open, in front of supine regulators. They knew that they were too big to fail; they knew that ultimately WaMu’s liabilities (or at least its deposits) were being backstopped by the US government; and they knew that if they wanted to get their total compensation up into the $100 million range they were just going to have to take enormous risks and gamble with the money they had essentially unlimited access to at the Fed’s discount window.

(emphasis mine)

Two points here, the first general, and second specific to this case.

The first is that a doctor who is sued for leaving a surgical instrument inside you, is not a victim of criminalizing failure. In fact, there is nothing criminal at all about the lawsuit. It's not a criminal case, it is a civil tort as the result of negligence, and it is completely reasonable and justified.

The second point here, is that what these guys did, relying on a complacent regulator, the thoroughly captured Office of the Comptroller of the Currency (OCC), a federal backstop of depositors, a complacent board, and an "I don't give a sh%$ about anything but this year's bonus" attitude to knowingly engage in reckless practices in pursuit of short term gain, should be a criminal matter.

If someone is speeding and driving recklessly, and runs down a crossing guard, they do get charged with a crime, negligent homicide, and these guys were speeding and driving WaMu recklessly, so perhaps, they should be charged with negligent bankicide, because, after all, in Citizens United, the Supreme Court said that that corporations were people.