Targets

Two Giant Banks, Seen as Immune, Become Targets

By BEN PROTESS and JESSICA SILVER-GREENBERG

Federal prosecutors are nearing criminal charges against some of the world’s biggest banks, according to lawyers briefed on the matter, a development that could produce the first guilty plea from a major bank in more than two decades.

In doing so, prosecutors are confronting the popular belief that Wall Street institutions have grown so important to the economy that they cannot be charged. A lack of criminal prosecutions of banks and their leaders fueled a public outcry over the perception that Wall Street giants are “too big to jail.”

Addressing those concerns, prosecutors in Washington and New York have met with regulators about how to criminally punish banks without putting them out of business and damaging the economy, interviews with lawyers and records reviewed by The New York Times show.

The new strategy underpins the decision to seek guilty pleas in two of the most advanced investigations: one into Credit Suisse for offering tax shelters to Americans, and the other against France’s largest bank, BNP Paribas, over doing business with countries like Sudan that the United States has blacklisted. The approach applies to American banks, though those investigations are at an earlier stage.

In the talks with BNP, which has a huge investment bank in New York, prosecutors in Manhattan and Washington have outlined plans to extract a criminal guilty plea from the bank’s parent company, according to the lawyers, who were not authorized to speak publicly. If BNP is unable to negotiate a lesser punishment — the bank has enlisted the support of high-ranking French officials to pressure prosecutors — the case could counter congressional criticism that arose after the British bank HSBC escaped similar charges two years ago.

Such criminal cases hinge on the cooperation of regulators, some who warned that charging HSBC could have prompted the revocation of the bank’s charter, the corporate equivalent of the death penalty. Federal guidelines require prosecutors to weigh the broader economic consequences of charging corporations.

With the investigation into BNP, the lawyers briefed on the matter said, prosecutors met in April with the bank’s American regulators: the Federal Reserve Bank of New York and Benjamin M. Lawsky, New York’s top financial regulator. The prosecutors who attended the meeting and are leading the investigation — Preet Bharara, the United States attorney in Manhattan; David O’Neil, the head of the Justice Department’s criminal division in Washington; and Cyrus Vance Jr., the Manhattan district attorney — left largely reassured.

During the meeting at the New York Fed’s headquarters in Lower Manhattan, the lawyers said, Mr. Lawsky said he planned to impose steep penalties against BNP and its employees but would not revoke the bank’s license. The prosecutors secured similar assurances from the New York Fed, the lawyers said, though the Fed’s board in Washington must still approve the decision about BNP, which has not been accused of any wrongdoing.

Depending on the regulator — American and European banks are divided among a patchwork of agencies in New York and Washington — the path to filing charges could still be difficult. While regulators might be philosophically aligned with prosecutors, some feel bound by rules that govern their response to criminal charges. At a meeting last September, a top federal regulator vowed not to interfere if Mr. Bharara obtained a guilty plea from JPMorgan Chase over its ties to Bernard L. Madoff, according to the lawyers and records of the meeting. But the regulator, Thomas J. Curry, a frequent critic of Wall Street, warned that federal law might require him to reconsider JPMorgan’s charter if the bank was convicted of a crime.

The discussions with regulators, recounted in interviews with the lawyers and in records obtained through a Freedom of Information Act request, offer a lens into the political and legal minefields that prosecutors navigate when investigating big banks. The interviews also demonstrate that defense lawyers continue to push prosecutors not to act without assurances that regulators will keep a bank in business.

In a recent speech to Wall Street lawyers, Mr. Bharara said this dynamic created a “gaping liability loophole that blameworthy companies are only too willing to exploit.”

He noted that regulators often possessed many of the same facts, including emails and documents, that underpin a criminal case. The prosecutors and regulators, he said, need to “work in concert.”

His comments echoed concerns that Attorney General Eric H. Holder Jr. raised at a congressional hearing last year, when he said, “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them” amid regulatory concerns that charges could imperil the economy.

The off-the-cuff remarks ignited a debate that reverberated through the Justice Department and the halls of the Capitol. Mr. Holder’s concerns also reinforced the popular idea that Wall Street, once considered too big to fail, is now too big to indict.

The idea is born from painful experiences like Arthur Andersen, Enron’s accounting firm, which went out of business after a 2002 criminal conviction. In the wake of the firm’s collapsing, prosecutors adopted a more cautious approach when punishing big companies, imposing “deferred-prosecution agreements” that suspend charges against corporations in exchange for certain concessions.

Those fears helped shape the case against HSBC, accused of “stunning failures” in preventing money laundering. Prosecutors in Washington, unsure how regulators would respond to a guilty plea, imposed a record fine and a deferred-prosecution agreement.

Mr. Holder and Mr. Bharara are now signaling a change in course.

Mr. Holder’s criminal division — which a week after announcing the HSBC case hosted a meeting with regulators to discuss “corporate resolutions,” according to records — has held discussions with the New York Fed about securing a guilty plea in the Credit Suisse tax shelter case. While the criminal division might ultimately extract a guilty plea from Credit Suisse’s main banking affiliate in Zurich, the lawyers briefed on the matter said, they have not ruled out charges against the bank’s parent company. The case is expected to be announced before the action against BNP.

Representatives for BNP and Credit Suisse declined to comment.

Mr. Bharara, the lawyers said, has opened his own criminal investigations into a fraud at Citigroup’s Mexican affiliate and other American banks. And in the recent speech, Mr. Bharara warned, “You can expect that before too long a significant financial institution will be charged with a felony or be made to plead guilty to a felony, where the conduct warrants it.”

BNP has privately said that the consequences of a guilty plea could be dire. In a final bid for leniency, the lawyers briefed on the matter said, the bank is expected to meet with prosecutors next week in the Justice Department’s headquarters in Washington. BNP, which has earmarked $1.1 billion to pay penalties in the case but might pay more, requested the meeting with Mr. O’Neil, Mr. Bharara and Mr. Vance after learning the prosecutors’ intentions to force a guilty plea from the bank’s parent company. The bank, which would be the biggest financial institution to plead guilty since Drexel Burnham Lambert in 1989, hopes that prosecutors will settle for a guilty plea from a BNP subsidiary.

The investigation into BNP has centered on whether the bank processed transactions for countries — including Sudan and Iran — that the United States government has placed under sanctions. The bank, which conducted its own internal investigation that “identified a significant volume of transactions that could be considered impermissible” between 2002 and 2009, may have improperly routed some money through its New York branches. Prosecutors decided that the conduct warranted more than a deferred-prosecution agreement. But leery of spurring a run on the bank, the prosecutors turned to regulators for assurances — which were largely provided at the April 18 meeting at the New York Fed.

Still, to be meaningful, a guilty plea would require some consequences. Mr. Lawsky told prosecutors that he would consider temporarily suspending the bank’s ability to transfer money through New York branches on behalf of foreign clients, a move that could undercut the bank’s revenue.

A spokesman for Mr. Lawsky declined to comment, as did the spokesmen for Mr. Bharara, Mr. Curry and Mr. O’Neil. The Fed and Mr. Vance’s office also declined to comment.

In other cases, Mr. Bharara reached an impasse with regulators.

He first met with Mr. Curry, the Comptroller of the Currency, in September 2012 to discuss the potential fallout from criminal charges, records show. A year later, as Mr. Bharara’s investigation into JPMorgan’s business with Mr. Madoff was heating up, he made another visit to the regulator.

Joined by his top lieutenants — Lorin L. Reisner, Joon Kim and Richard B. Zabel — Mr. Bharara sought to clarify the potential repercussions of a JPMorgan guilty plea, according to the meeting records. Mr. Curry, flanked by his own top aides, Paul Nash and Daniel Stipano, was sympathetic to the dilemma.

But Mr. Curry stopped short of promising that JPMorgan’s charter would be safe. He pointed to a federal law that requires the Comptroller’s office to hold a hearing about potentially terminating “all rights, privileges and franchises of the bank.” Ultimately, JPMorgan received a roughly $2 billion penalty from Mr. Curry and Mr. Bharara, but did not have to plead guilty.

Moving forward, Mr. Bharara is exploring ways around the automatic hearing, which applies only to money laundering convictions. Other charges, including wire fraud, do not automatically require a hearing.

“The revocation of a charter amounts to a death sentence for a bank,” said Daniel Levy, a former prosecutor in Mr. Bharara’s office, who is now a principal at McKool Smith. “Any rational prosecutor would want to know the consequences of a charge, if possible in advance.”