How Hank Paulson Broke The Law: "This Will Be A Disclosable Event And We Do Not Want A Disclosable Event" - Parsing The Ken Lewis "MAC" Deposition

Tyler Durden's picture

Among some of the discoveries of the financial crisis is that the entire financial system is now, following the Lehman bankruptcy, built entirely on fraud. And while Ken Lewis may spend the remainder of his days on some private island with stolen taxpayer money providing for his every last wish, it was he, in following the Fed's and the Treasury's orders to make a mockery of fiduciary responsibility, that was among the first people to confirm that there is no rule of low in America, or rather whatever law there is, it only applies to the less than immortal (i.e. the sub-banker class). Below, in an indication that Zero Hedge will never forget, we present the salient highlights from the Ken Lewis deposition on the MAC clause surrounding the Merrill transition, emphasizing the threats from Hank Paulson and Ben Bernanke. For as long as neither of these three is in jail for what is documented shareholder (and taxpayer) fraud, we fail to see why the remaining 300+ million Americans continue to diligently pay their share of taxes into a government that is now beyond (and in full documentation) corrupt. Also, how BofA's lawyer Wachtell was not at all present during the discussion of the MAC clause, makes a complete mockery of the US legal process in its entirety. We wonder just when the official scribe of the kleptocracy, Andrew R. Sorkin, will write a book disclosing the truth of what happened, including a listing of all the laws broken with full premeditation by every single player, and not the watered down, PG13 (and rather expensive)version  that makes everyone come out like a law-abiding superman.

Full transcript highlights, presented without commentary:

Q: Where does the meeting take place?
A: At the Federal Reserve.
Q: And who attends the meeting?
A: Well, the two main players – excuse me – Joe Price and Brian Moynihan.  And Bernanke was there; Paulson was there; Alvarez, his chief counsel, and a cast of a lot of others that I didn’t recognize. 
Q: The “others” were Treasury and Fed officials?
A: Yes
Q: Was there any attendance list taken at the meeting?
A: Not to my knowledge, but there could have been.
Q: No one passed around a list or something like that?
A: No.
A: ...we were concerned about the very large hole that would have been created by the loss.
Q: And what was the hole that was going to be created by the loss?
A: At that point, we thought it was roughly $12 billion.

Q: What happened next?
A: Well, there was discussion about MACs being very difficult – and, again, the meetings are running together on me – I don’t know what would be the remedy –I know at the end we were basically told to stand down...
Q: Who did speaking for the Treasury and the Fed at the meeting?
A: Mainly Hank and Ben, but I think Alvarez said a few things, too
Q: By the way, was anyone from Wachtell at the meeting?
A: No. 

A: ...I think I got it now.  I remember, for some reason we wanted to follow up and see if any progress – as I recall, we, actually had not agreed not to call a MAC after the conversation that we had, and so I tried to get in touch with Hank, and, as I recall, I got a number that was somebody at the Treasury kind of guard-like thing.  He had a number for Hank, and Hank was out, I think, on his bike, and he – this is vague; I won’t get the words exactly right – and he said “I’m going to be very blunt, we’re very supportive of Bank of America and we want to be of help, but” – I recall him saying “the government,” but that may or may not be the case – “does not feel it’s in your best interest for you to call a MAC, and that we feel so strongly,” – I can’t recall if he said “we would remove the board and management if you called it” or if he said “we would do it if you intended to.”  I don’t remember which it was, before or after, and I said, “Hank, let’s deescalate this for a while.  Let me talk to our board.”  And the board’s reaction was one of “That threat, okay, do it.  That would be systemic risk.”
Q: The conversation with Hank on the bike, that’s also on Monday?
A: No.  That was on Sunday – I’m pretty sure that was Sunday.  I just recall it wasn’t a weekday, and that he was out of pocket.
Mr. Corngold: Before we do that, did you have an understanding of what powers the Treasury Department had to remove the board and/or the management of the bank?
The Witness: It was my understanding he said – that’s why I said I think he said government.  I think – my impression is that was the language of the Fed used to use in Texas, basically saying, Don’t do something.
Mr. Corngold: You had an understanding that the Fed could remove the board and/or the management of a bank that it regulated if it found certain things.
A: Yes
Q: Do you know what it has to find?
A: They had been so strong about the fact that they strongly advised use not to do it and that it would cause harm to the bank and the system and they system wouldn’t be good for us, either – that it would damage the system.  That’s kind of how it was being portrayed.
Q: Was this the first you heard about the government – to use your term – was considering that threat.
A: Yes

Q: Did you ask him, “By the way, what do you mean by that” – I’m sorry, the comment about the removal?
A: No.  It was pretty clear.
Q: And at the time, did you sort of have that preexisting understanding of the Texas Fed way of communicating.
A: I had heard that at some point.  I don’t know why that’s in my mind, but I’ve heard of that before that’s a way of telling you not to do something.
Q: Have you heard any kind of communication like that from a federal official to you before?
A: No

A: This was about just a shear magnitude of loss, and either you do it or you don’t.  Behavioral changes, or whatever, wouldn’t fill that hole that we thought was $12 billion, which turned out to be $15 billion. 

Q: But you, basically had to go on faith that the Fed and Treasury were going to deliver.
A: Correct.
Q: Did you ask for any agreement from them?
A: There was a point after that that the board brought up the fact that we’re relying on words that obviously has some very prominent people and honorable people, but, boy, what if they don’t come through?  So I called Bernanke – I don’t know why I called him versus Hank – and said, “Would you be willing to put something in writing?”  And he said, “Let me think about it.”  As I recall, he didn’t call me back, but Hank called me back.  And Hank said two things: He said, “First, it would be so watered down, it wouldn’t be as strongly as what we were going to say to you verbally, and secondly, this would be a disclosable event and we do not want a disclosable event.”
Q: They didn’t think it was in the best interest if you announced to your shareholders that you were negotiating?
A: No.  They thought it was in our best interest for the deal to be completed and to be able to say “This is what we have,” as opposed to prospectively.
Q: At the point in time of this board meeting, though, you were relating to the board that you felt you had a commitment from the Fed and the Treasury to make good on whatever harm is caused by the increased losses at Merrill Lynch; is that right?
A: I had verbal commitments from Ben Bernanke and Hank Paulson that they were going to see this through, to fill that hole, and have the market perceive this as a good deal.
Q: Did you ask anyone to look into whether the oral, verbal commitments from the Fed and Treasury were enforceable?
A: No.  I was going on the word of two very well respected individuals high up in the American government.
Q: Wasn’t Mr. Paulson, by his instruction, really asking Bank of America shareholders to take a good part of the hit of the Merrill losses?
A: What he was doing was trying to stem a financial disaster in the financial markets, from his perspective.
Q: From your perspective, wasn’t that one of the effects of what he was doing?
A: Over the short term, yes, but we still thought we had an entity that filled two big strategic holes for us and over the long term would still be an interest to shareholders.
Q: What do you mean by “short term”?
A: Two to three years.
Q: So isn’t that something that any shareholder at Bank of America who had less than a three-year time horizon would want to know?
A: The situation was that everyone felt like the deal needed to be completed and to be able to say that...
Q: When you say “everyone,” what do you mean?
A: The people I was talking to, Bernanke and Paulson.
Q: Had it been up to you would you made the disclosure?
A: It wasn’t up to me.
Q: Had it been up to you.
A: It wasn’t
Q: Why do you say it wasn’t up to you?  Were you instructed not to tell your shareholders what the transaction was going to be?
A: I was instructed that “We do not want a public disclosure.”
Q: Who said that to you?
A: Paulson

Q: Did anyone consider that the oral agreement was a commitment for financing, so under SEC rules there had to be a disclosure?
A: I did not.  That’s all I can tell you.
A: Plus, it was said that “We want this deal done on time on these terms.”  There wasn’t an ability to renegotiate. 

Q: Did you feel like you had a choice in the matter?
A: No

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mynhair's picture

Illegality, bitchez!

nmewn's picture

Abrogation of fiduciary duties...cronyism...taxpayer theft justified as an end justifying the means.

What was the vote on TARP again?...same same...and much deeper.

FatFingered's picture

Alan Grayson       Aye

Marcy Kaptur       Aye

Dennis Kucinich   Aye

Ron Paul             No

Ron Paul is the sole consistent voice for the people.  Very sad.  As TD claims, the US is a bono-fide banana republic.  


nmewn's picture

It's always good to go back and look at the record to see who your friends are.

Good night.

Husk-Erzulie's picture

So disappointed in Marcy :-(

Kucinich...not so much.

ebworthen's picture

The vote on TARP was the end of my citizenship of the heart.

I'm here legally and physically, but my allegiance and belief in the U.S.A. has died.

It's like losing a loved one, and I'm not sure what stage of grief I'm in but I know I'm past denial.

Mr Poopra's picture

Your allegience and mine is to the Constitution, not these criminals.  They are not representative of America or the American spirit, not to me.  

nmewn's picture

"Your allegience and mine is to the Constitution, not these criminals."

I feel the same way...and to my people.

Fiat Money's picture

"Your allegience and mine is to the Constitution, not these criminals."

             If it makes anyone feel any better, we (the late usa) are now little more than a colony of a certain foreign country's war lobby, of whom the gs, jpm, Fed (et al) financial swindlers are merely the financial extortion arm.  

There is plenty of precedent for this, or course: large swaths of the Black Sea and Med. coastlines were once colonies first of the Greek city-states (Athens, etc.), then of Rome; we Americans were once colonies of the British empire, and Wall St. financiers +  war supplies contractors, propped up that same British empire long enough during WWI, to drag America into that war on their side.

   But perhaps the best example is the Greek and Cypriot colonies of the Venetian merchant empire during the 12th through 16th centuries; the Venetian merchants and bankers drained every penny from their Greek subjects, who were effectively little more than slaves  (serfs), while actively trading with the Turkish empire that  enslaved other Greeks & Christian Europeans by the tens of thousands,  and always loomed over the Agean.

    It took a lot of manpower to row those war galleys, and Christian galley slaves could be just as good as (captured) Muslim galley slaves. (All of whom died by the thousands, chained to their rowing benches with no clothing, amid their own filth,  under the lash of the row master's whip.)

The need for every fresh supplies of galley slaves to fill the ranks of those who died,  created its own demand for war to supply new prisoners -   just as, today, the war profiteers profits demand ever fresh taxes, and (un-) "P.A.T.R.I.O.T. Act"  powers, and fresh reminders of the GWOT,  to pay for their parasite economy;  just as the sugar plantations in the East Indies had such a high mortality rate (avg. 100% slave mortality over 3 years in some brutal plantations!)  that they demanded a fresh supply of new slaves to feed Europe's increasing sugar habit and addiction (which morphed to tobacco, cotton, rice, & other colonial commodity products when the slave plantations spread to North America under the English, Jamestown established 1607.) 

  Anyone who believes that "America was conceived in liberty and freedom" is delusional!

snowball777's picture

that'd be #3 "anger and bargaining"

Frustration gives way to anger, and you may lash out and lay unwarranted blame for the death on someone else. 

Popo's picture

Tyler, you have a typo in the title. "disclosable", not "disposable".

Apostate's picture

Hank Paulson: American Hero.

Where would this country be without jumbo mortgages and credit card pyramiding? He preserved shopping season. He must be commended. Build a statue of this grand bald man, post-haste!

Pure Evil's picture

Doing God's work before anyone knew what God's work was, eh hem.....Lloyd.

BorisTheBlade's picture

I wonder if God knows that he outsourced his work to a bunch or crooks, besides where's the contract or God told them it was an undisclosable event and thus he won't put anything in writing?

Fred Hayek's picture

Did you mean to say a "manse man"?

Michael's picture

U.S. Department of Homeland Security

If You See Something, Say Something

Citizen Line Operator Number: 202-282-8000

Project Financings
MAC clauses are normally found in a representation and warranty by the borrower as to the absence of any material adverse change and as an event of default triggered by a material adverse change.

Where the financing involves multiple drawdowns, the lender generally requires the MAC representation and warranty to be repeated by the borrower at the time of each drawdown. A lender may also want to insert a MAC clause as a separate condition precedent to drawdown.

Below are examples taken from project financing transactions we have advised on:

Example 1 - Definition

"Material Adverse Event means something which, in the opinion of the Facility Agent, materially adversely affects:

– the Company's ability to comply with its obligations under any Transaction Document or to carry on its business as it is being conducted at the time immediately preceding the event;

– the value of the Secured Property; or

– the rights of the Financier under a Transaction Document.

Example 2 - Condition precedent

"A Financier is not obliged to provide any drawdown until the Facility Agent is satisfied that there has been no change in:

– the commercial, operational or economic viability of the Project from that contemplated in the Plan or Feasibility Study; or

– the business, condition (financial or otherwise), operations, performance or assets of the Company, which is, or is likely to be, a Material Adverse Event."


Anonymouse's picture

What is the Texas Fed story?  I don't know what they are referring to?

plocequ1's picture

I gave up giving a shit about a year ago. What ever happens, happens. Now excuse me while i watch the Superbowl and enjoy my Sheepdom

plocequ1's picture

Nothing like plastic Rice Krispy treats while watching the superbowl.

RobotTrader's picture

Both Hank Paulson and Ken Lewis are set for life.

Just like Angelo Mozillo and Franklin "Mr. Potato Head" Raines.

Here's Raines enjoying the good life at a Washington charity function.

End of story....

mynhair's picture

Raines's head looks more like an ACORN.  Think they pull a Kennedy-Dodd sandwich on that red-head?

slewie the pi-rat's picture

although i have no direct knowlegde of any such activity and can neither confirm nor deny any such speculative query, i did read the testimony, and here's a direct quote:

we still thought we had an entity that filled two big strategic holes for us

Hulk's picture

Yep, prosecuting fraud is absolutely a thing of the past...

oddjob's picture

Hard to believe Raines is still breathing.

Don Birnam's picture

The guy on the left is holding the glass stem with a napkin. Definitely a Beltway klepto-charity event. No one wants to leave any prints.

Pure Evil's picture

I didn't know Alien-Rat hybrids had fingerprints.

buzzsaw99's picture

If there's a Hell Skeletor Paulson will spend eternity in its bowels.

RockyRacoon's picture

That's not good enough -- unless it's televised on CNBC.♠

Husk-Erzulie's picture

Feet to the fookin, fire bitchez.  Classic ZH.  It makes me feel oddly reassured to know that this is read world wide.  Bravissima.

Miles Kendig's picture

Cas Sunstein, Dick Cheney & others now have precisely what they want.  Lawless governance creating & governing a lawless society.

And I was right a year ago when Ken Lewis got served his legal papers.  I said then that he was too big of a wimp to actually  run his mouth, let alone a major deposit taking institution.  The last two question/answers portray this clearly.  Ken Lewis is what convicts would term as a "punk".  Fact remains that only punks are served by punks.  Or as the old FBI adage goes:  Once a cock sucker, always a cock sucker.

Cognitive Dissonance's picture

Corporate/governmental collusion and cover-up to perpetuate the Ponzi and the money gravy train just doesn't get any clearer than this since this would never be put in writing as Paulson clearly said.

Short of a death bed confession that is.

Michael's picture

A death bed confession is meaningless unless the US Justice Department acts on it.

That is why we need to get rid of the Obama administration.

Don Birnam's picture

Andrew Ross Sorkin, perpetual CNBC "guest" and official scribe of the kleptocracy, has always called to mind, with his smarmy, Times Square perma-smirk, the "journalistic" image of Alfred E. Neuman.

TooBearish's picture

Hank Paulson as SecTres broke the law the second he picked up the phone from Lloyd

Careless Whisper's picture

Alvarez, his chief counsel

would that be scott alvarez, the general counsel for the privately owned federal reserve bank? he couldn't answer if the privately owned federal reserve bank ever manipulated the stock market. this guy is too funny.


Everybodys All American's picture

Ken Lewis has no balls or morals ... if he had either he would have told Paulson to go to hell. The problem with corporate America in general can be simplified with one word. Leadership.

Bob's picture

Nah, the word is personal liability.  Okay, that's two words. 

These are just pirates who operate under corporate cover. 

Yen Cross's picture

I don't have to read transcript. I'm on your side. Always have been. Sleep Tight!

Yen Cross's picture

Hey trade a bounce in usd/jpy 81.49- 89.79 area. Have fun Look @ liquidity.

tony bonn's picture

hank paulson wanted legal immunity because he was and is a crook...ken lewis was and is a puppet of the bohemian grove/bildeberger/trilateral commission/rockefeller rothschild axis of evil and is also a lying sack of crooked shit....

of course the law is only for the little the schapiro-bitch go after some more small fry so she can hang out dirty laundry to prove that she is doing her blow job....

as one smart cookie said about an evil judge in her life, "if i don't see him in hell, i don't have any fear of going there."

remember all of that horseshit about the necessity of education for making a better man....fuck you


monopoly's picture

None of us here on Zero Hedge are surprised about this deception. The sad part is that this govt. has no desire to prosecute the scum that supposedly saved our country. And most of the sheeples do not even have a clue when they walk into BAC or WFC to deposit a check or get some cash. Most do not even know about the dollar, what spiking interest rates means or how to spell The Bernank.

But they will pay attention when gas is $5..00 and bread $6.00.

Nothing will be done to Lewis or the others. They are the worst kind of vermin, the scum of the earth and care about nothing but themselves.  At one point I had hope, but we no longer have a Washington, Madison, Jefferson or Monroe to help this country.

We have Bernank who should be indicted, Geithner who should be fired and Obama who should resign. Been around a long time, this is the worst I have ever seen in this country.

The destruction these slime have wrought on this country and this planet will linger for a long, long time.

But party on all, shorts are not working.

Withdrawn Sanction's picture

Do not count on government to sort out and adjudicate the mess they helped make.  It is not necessary and would in fact be counterproductive.

Karma's a bitch... and she takes names.

Time is short.

mynhair's picture

Ah, but they are punished.  See Ken Lewis on the 'Jobs' panel yet?

Nope, just Immelt.

Unindicted scum rises to the top.

CIT, wrong comment...

Judge Smales's picture

The only thing that gives me any hope regarding the fraudsters is that most of them are well older than I am, so I will probably have the fun of reading most of their obituaries, one by one, and drinking a toast each time. I might even go to their gravesites and have myself a pee, too.

agrotera's picture

US Treasury secretaries have a fiduciary responsibility to the country--

I can't see how broadcasting to all of wallstreet to bet on the collapse of Lehman and the then tell the country that the winnings for this bet need to be paid by our tax dollars (AIG --got the money, a day after Lehman's collapse, to pay the winnings of the Lehman CDS bets, with taxpayer money), violating laws (forcing the purchase of MER on BAC) and lobbying for a law to take taxpayer money to pass out to failed entities (TARP) is the act of a fiduciary....and i cannot understand how any US Treasury Secretary who would do such things can have immunity from prosecution.