In an interview with the Wall Street Journal, reported here,
Attorney General Holder promises that “he plans to announce new cases
stemming from the economic meltdown in the coming months.” Some media
outlets have interpreted this as a harbinger of criminal prosecutions,
but Holder did not indicate whether the cases would be civil or
criminal. Any civil case against the likes of a major bank or investment
house can be filed under “Costs of Doing Business.” In addition to the
civil-criminal wiggle room Holder allowed himself, the definition of
“cases stemming from the economic meltdown” is broad enough to cover a
multitude of alleged malfeasance.  Is DOJ going to prosecute people who
purportedly contributed to the meltdown through fraudulent omissions and
commissions? Or will it bring desultory civil cases based on conduct
that occurred in the wake of the meltdown? According to the article,
Professor John Coffee “expected the five-year statute of limitations on
many white-collar
crimes may bar a successful prosecution of a number of pre-crash
abuses.” But virtually any federal criminal financial institution fraud
case can be brought within 10 years, thanks to FIRREA. Criminally
fraudulent activity involving a financial institution that occurred in
May 2006 could be charged as late as 2016.

(wisenberg)