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October 20, 2013 9:07 AM Good Morning, Jamie Dimon

A $13 billion settlement would be colossal, but criminal prosecutions would mean more.

By Max Ehrenfreund

Good morning, readers, and special greetings to Jamie Dimon, who reportedly learned on Friday that the $13 billion his company is paying the Justice Department to settle allegations of fraud won’t protect him or any of his subordinates from criminal prosecutions. Attorney General Eric Holder gave him the bad news over the phone. I feel like we should all do something to cheer the guy up — maybe buy him a muffin or something.

The settlement might be the largest fine in the history of fines, but that remains to be seen. As David Dayen noted, earlier reports suggested that $4 billion would be set aside for mortgage relief, and JPMorgan will find ways of avoiding some of that expense if it is responsible for administering the relief itself. Another $3.5 billion or so might be actually be paid by the government through the Federal Deposit Insurance Corporation. There’s no word yet on whether that entity has agreed to join the settlement. Bloomberg also reports that portions of the settlement are likely to be tax deductible. The total JPMorgan actually pays to the government could be well under half the nominal value.

Dimon is our King Midas. Everything he touches turns into a lawsuit. Yet he (and others) have argued that the current settlement is misguided because much of the alleged malpractice was committed at Bear Stearns and Washington Mutual before JPMorgan took possession of them.

Those two banks, according to regulators and federal attorneys, misled Fannie Mae and Freddie Mac about the soundness of their mortgage-backed securities. When Bear Stearn and Washington Mutual both failed, JPMorgan acquired them with the help of the government. Obviously, JPMorgan acquired their liabilities as well as their assets — that’s what acquisition means. Those liabilities included potential future legal costs. If some of the banks’ liabilities were going to be written off, then might as well have simply declared bankruptcy, which was the outcome that regulators were specifically trying to avoid for the good of the economy when they facilitated JPMorgan’s acquisition. In arguing that the lawsuit is unfair, Dimon is basically suggesting that other creditors of two failed banks should receive preferential treatment over taxpayers and the public.

There is a sense in which Dimon is correct, of course. The reported settlement does not really punish the people who were actually responsible for, or who actually benefited from, the alleged wrongdoing at Bear Stearns and Washington Mutual. Yet this is also a strange claim for Dimon to make. Would he prefer a regulatory system based on personal responsibility, in which senior executives are held culpable for encouraging or failing to prevent systematic abuses?

I would agree. The purpose of punishment in financial regulation shouldn’t be just to generate headlines by shifting money from one portion of the economy to another, but to encourage a culture of ethical behavior that ensures stable economic growth over a long period of time. Criminal prosecutions are as beneficial, if not more so, as major settlements, even if comparatively little money changes hands. For these reasons, the most important (and surprising) element of the reported settlement with JPMorgan is not its incomprehensible nominal value, but that it does not include immunity from prosecution.

Max Ehrenfreund is a former Monthly intern and a reporter at The Washington Post. Find him on Twitter: @MaxEhrenfreund

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