This week, Jesse Eisinger sits down with us to discuss Merrill Lynch and how its decision to internally boost demand for their money-losing securities nearly cost the banking giant everything. Eisinger explains what Merrill staffers meant by “a million for a billion,” which executives knew about the plan and whether it was legal. Oddly enough, there has been a noticeable lack of prosecutions considering all that happened, but Eisinger succinctly points out that keeping the fragile financial system intact was at the heart of the issue, which made instilling trust the name of the game.

“The regulators and the government wanted to shore up confidence in the banking sector, and if you had a steady parade of Wall Street executives going to prison for fraud, that would erode confidence,” Eisinger said.

Mike Webb: Hi, I'm Mike Webb and welcome to the ProPublica podcast. Late last month, Jesse Eisinger and Jake Bernstein published another piece in their Wall Street Money Machine investigation. Titled "The Subsidy: How a Handful of Merrill Lynch Bankers Helped Blow up Their Own Firm," the reporters explain why the group was created, how the deals worked, which Merrill Lynch execs were involved, and how much money they earned from the self‑dealing. Here to talk about it with us is Jesse Eisinger. Before joining ProPublica, Jesse was the Wall Street Editor for Portfolio and a columnist and reporter for The Wall Street Journal. He also writes a bi‑weekly column for The New York Times Deal Book section, which is also featured on our website.

Welcome to the podcast, Jesse.

Jesse Eisinger: Hey, Mike. Thanks for having me.

Mike: Let's start with the basic story. Why would Merrill Lynch create a division to buy money losing securities?

Jesse: So, Merrill was the leading bank in these things called collateralized debt obligations. They were mortgage bonds, complex mortgage bonds that bundled together a bunch of mortgage securities. And these were the so-called toxic assets that the banks were saddled with, eventually, in the financial crisis. And Merrill was the leading bank, as I say. They made the most money on this, hundreds of millions of dollars in 2005, 2006, even through 2007. But, much earlier than people previously understood before our series of stories, we found out that they faced a big problem, which is that there were no customers.

Mike: Demand was going down.

Jesse: Demand was going away. Most prominently, the insurance company AIG decided to stop buying these things in late 2005, early 2006. But a whole raft of pension funds and institutional investors and banks decided they didn't want any part of this. So, Merrill faced a decision, which is wind down this incredibly lucrative business or figure out some kind of solution.

Our series of stories has been about the various solutions that they’ve had, and the various kind of machinations that the bankers went through.

Mike: "Solutions" in quotations.

Jesse: Well, exactly. So, the solution for the big part of it, the safest, supposedly safest part of it, was that Merrill decided to take it, to retain it, to keep it.

Mike: What do you mean?

Jesse: Well, the CDO group itself would create these securities. And then it was charged with selling it. But when it couldn't sell the top part, the AAA part that was supposedly so safe, it yielded just a little bit. The returns were not great, so nobody really wanted it, because the risk was greater than the return. So, instead of not creating this stuff, they continued to create this, but they still had to "sell it." And so, what they did was they sold it to different portions of the bank: the areas of the bank that was allowed to buy things. And this group that was creating it wasn't allowed to buy stuff – to retain it, to keep it – because that would create this obviously perverse incentive. Because you're getting fees every time you create a deal like this, so of course, you are going to add the incentive to create more deals and keep everything that you create to get the fees. So they said, "No, you can't do that," which is pretty obvious sort of risk management 101 type of decision.

Mike: Right. So, what was their solution?

Jesse: So their solution was to find other areas in the bank to sell to. Now, there were a bunch of traders in 2006 who balked at this, who said, we don't want to buy this stuff, this is too risky. It's garbage.

Mike: It’s the riskiest and it doesn't pay off.

Jesse: It's the riskiest type of mortgage security and it is not going to pay. But they did find one area. They created a special group within Merrill Lynch, ostensibly separate from the CDO creation desk, to buy this stuff. And then this group bought tens of billions of dollars' worth.

Mike: Of the riskiest part.

Jesse: Well, no, it actually wasn't the riskiest part of it. It was the supposedly safest part of it. It was the top, it was the AAA. It was called super senior. It was supposedly so safe. Eventually, starting in the fall of 2007, and through 2008, Merrill took tens of billions of losses on this stuff. It was a total disaster. But what we wanted to ask, what we wanted to find out, Jake and I wanted to find out, is why would you buy this stuff? Why would you retain it? Who did it, and why would they do it?

Mike: Exactly. Now did the senior management at Merrill Lynch approve of this? Did they set it up?

Jesse: Well, it was hard to find any proof that the senior people knew about what was going on. We still haven't figured out anything definitive about exactly how high up this went. But what we did find in our story is that this CDO group was sharing its bonuses with the traders who are actually buying this stuff. They were subsidizing them. It was essential internal payola, or as one Merrill executive told us, it was bribery.

Mike: Right. And was this new group, were their books on Merrill Lynch's books? Was it all sort of coming from the same...?

Jesse: Yes. This gets very complex, because some of the positions were off the balance sheet and came sort of streaming back on the balance sheet once there were big problems with it. In this particular group of traders, it was on the books. And if the top executives looked closely at the risk reports, they could have seen it but they didn't really understand what they were looking at because it was supposedly as safe as a U.S. Treasury bond. Well, it should have raised more red flags than it did. And that's a big question: why Merrill Lynch's risk management functions fell down so dramatically and why the top executives were so feckless. But whether or not they should have been more attentive, it's not clear that they understood the subsidy that was going from the CDO group to the traders.

Mike: But these were pretty smart people.

Jesse: The top executives?

Mike: Yeah.

Jesse: I mean, if you think the average Wall Street executive is a very smart person. They're very smart about their own personal pocketbooks; that's true.

Mike: Right. At one point this business was very profitable for Merrill Lynch.

Jesse: Yeah, the CDO business was extremely profitable for Merrill Lynch. It generated hundreds of millions of dollars in revenue and was extremely lucrative. Since they were number one in it, they were extremely reluctant to let this business go. And that probably played a huge role in their resistance to winding this business down. They probably, some of them at least, thought this is going to come back. They were deluding themselves that it was going to come back because their bonuses were so intertwined with the success of this business.

Mike: And the bonus money was what was used as the subsidy.

Jesse: Yeah, so what happens is when you create a CDO, you get fees as an investment bank for creating the deal. What happened with these fees is that a portion of the fees, roughly 50 percent of all the profits of an investment bank go to the employees of the investment bank as bonuses. So roughly 50 percent of every dollar in fees that you would generate from a CDO would go to the bonus pool. But it would typically go to the bonus pool of this CDO group, the group that was creating the CDOs. But what they were doing was they entered into this arrangement where every time this desk that was specially created to house the CDO positions bought something, the CDO group would subsidize them effectively out of the bonus pool. So what you were doing is there was a little bit of a payoff. It looked like payola basically.

Mike: Right, right, you're slicing and dicing, just letting it go...

Jesse: Yeah, or a kickback almost.

Mike: Was any of this illegal?

Jesse: It remains to be seen. It doesn't seem to be investigated right now. The SEC did investigate this stuff in 2007 when the losses came out, and then that investigation seems to have gone nowhere. The SEC sort of ended up investigating something else regarding Merrill Lynch, their bonuses with respect to the takeover by Bank of America. Now, whether this is illegal or not, it's unclear because probably banks are allowed to pay their employees whatever they want and however they wanted. But it's extremely damaging to create a situation where traders at a bank are given incentive to buy stuff that they wouldn't otherwise buy, stuff that was potentially money losing or risky. They didn't want it. They resisted it. But they bought it anyway, and the reason why they bought it was that they were getting paid to buy it.

Mike: Right, and...

Jesse: Or one reason may have been…it certainly contributed to them that they bought it.

Mike: So that kind of touches on something you wrote about in your Deal Book column where you wrote about the lack of prosecutions that went down. Can you explain why there hasn't been more?

Jesse: Sure. I mean, I think it's an appalling state of affairs. But no major bank executive or insurance executive from AIG has been indicted or obviously gone to prison. There were some low level Bear Sterns guys who were tried and, of course, they were convicted. I mean, excuse me, acquitted.

Mike: Exonerated.

Jesse: Yeah, and the issue is one, it's extremely complex to try these cases, and the threshold for proving actual fraud is so high. Because you have to essentially prove that these guys knew exactly what they were doing – they knew that what they were doing was wrong. And the excuses are myriad. They say, well, it was a 100‑year flood, nobody could've predicted this was going to happen, we may have been worried a little bit but everybody worries in this business, and we had no idea that it was going to collapse this dramatically. They have a lot of excuses.

Now, unfortunately, I don't think those hold water, and I don't think the SEC has been very aggressive about this. I think that one reason at the heart of it is that the banking system was extremely fragile, and they wanted to shore up confidence. The regulators and the government wanted to shore up confidence in the banking sector, and if you had a steady parade of Wall Street executives going to prison for fraud, that would erode confidence.

So what I think they've done is taken a very short‑term view of this which is we don't want to rattle anybody's cages right now. The long‑term problem is that it erodes the faith in the banking system over the years. And so we still had this big problem.

Mike: Does the Financial Reform Bill address any of this?

Jesse: You know, various parts of it. There are some interesting new regulations with regard to this area of structured finance, which is what the complex mortgage securities fall under. Banks are going to have to retain more of this stuff on their balance sheet in a kind of better thought out way, so there may be some things that help this, not prevent it. But that's kind of fighting the last war. There are new things that Wall Street will come up with that will potentially blow us up.

Mike: All right, well, Jesse, thank you very much for joining us.

Jesse: Sure, thank you.

Mike: You can read the full story at propublica.org/magnetar03, and you can see all of Jesse and Jake’s Wall Street reporting at propublica.org.

Speaking of financial shenanigans, this week's "Officials Say the Darnedest Things” Tumblr quote of the week is, "A house of cards is almost never built by one lone architect." That was said by Preet Bharara, the U.S. Attorney for the Southern District of New York, regarding the Madoff employees' arrest in late December.

This is Quadia Muhammad's last podcast. She has produced this show for the past several months, and I want to thank her from the bottom of my heart. I hope you listeners have enjoyed it. And Quadia it's been a lot of fun working with you. Thank you very much.

For ProPublica, I'm Mike Webb. We'll see you next week.

Transcription by CastingWords