This story has been updated.
At her confirmation hearing Wednesday, attorney general-designate Loretta Lynch said she has been “very aggressive” in pursuing white-collar crime. “At the outset, no individual is ‘too big to jail.’ And no one is above the law,” said Lynch.
Yet according to a new report from Public Citizen, Lynch’s highest-profile prosecution, of HSBC bank in 2012, has brought few changes, with ongoing problems. Additionally, the report details examples of the bank continuing to work with other offshore entities that help customers engage in tax fraud.
Taken together, the analysis buttresses critics who assert that Lynch and the Justice Department let HSBC off the hook with a slap on the wrist for crimes like laundering $881 million for Mexican and Colombian drug cartels, and for violating sanctions by conducting transactions for customers in Burma, Sudan, Libya and Iran.
"The government’s decision to offer HSBC a deferred prosecution agreement was remarkable in light of the egregious acts the bank had engaged in,” conclude Public Citizen researchers. “To the extent that the agreement offered a silver lining for the public, it was that it promised to compel HSBC to enact reforms that would prevent the bank from acting wrongfully in the future.” The group said its findings show “that the bank may have a long way to go to deliver on that promise.”
Indeed, HSBC says it has only partially implemented planned reforms. "We acknowledge that our compliance culture and standards of due diligence were significantly lower than they are today," said HSBC spokesman Rob Sherman in an email to IBTimes Thursday. "HSBC announced in 2012 a commitment to implement the highest or most effective standards to combat financial crime, and we are just over two years into a five-year program to transform the way we manage financial crime risk. We are on track to meet the terms of the five-year [plan], but with three more years to go, we have more work to do."
Justice Department officials have defended deferred prosecution agreements on the grounds that enforcing laws against banks like HSBC may hurt the larger economy. Attorney General Eric Holder made such an argument at a 2013 Senate hearing. Holder’s then-deputy, Lanny Breuer, specifically lauded the decision to defer an HSBC prosecution because, he said, such leniency takes into account “collateral consequences” of prosecuting such a large financial institution.
For her part, Lynch does not seem eager to discuss the HSBC settlement she negotiated. As International Business Times reported Monday, she omitted mention of the bank in documents submitted to the U.S. Senate in advance of her nomination. In a section of a nomination questionnaire asking her to list all her previous media interviews, she did not mention a 2012 appearance on CBS News to discuss the HSBC agreement.
Despite the omission and the larger questions surrounding the agreement, Lynch only received one question about the settlement during the first day of congressional hearings about her nomination.
Connecticut Senator Dick Blumenthal, a Democrat, noted that Lynch had said after the HSBC settlement that the settlement would deter HSBC from further criminality but not necessarily other companies. Blumenthal asked Lynch if there could be prosecutions that dispelled the widespread perception that the Department of Justice has been “too lenient.” Blumenthal specifically addressed the lack of high-profile criminal prosecutions.
In her reply, Lynch did not call for more criminal prosecutions, instead defending the civil resolutions brought by the Justice Department.
“We have struck significant – wrung significant -- concessions from corporations,” said Lynch, “and made major changes in the way in which corporations and financial institutions are structured and operate that as act a deterrent.”
That assertion, however, contrasts with examples compiled by Public Citizen.
For example, the report report notes that a court-appointed monitor has been critical of the bank’s compliance practices in the wake of Lynch’s deferred prosecution agreement. The monitor is expected to issue findings later this year that detail ways in which the bank still needs to improve.
The Public Citizen analysis also found that HSBC is linked to a Panama-based company that enables tax fraud. The company, Sovereign Management, lists HSBC on its website as one of its partners in offshore banking. Additionally, the report details how HSBC has been charged by a judge in Belgium for facilitating the evasion of “hundreds of millions of euros” in taxes.
Senate hearings about Lynch’s nomination are scheduled to continue on Thursday.