Why the AIG Case Is No Joke

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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‘Ludicrous” is how one New York Times writer sneers at Maurice “Hank” Greenberg’s lawsuit against the United States over the Federal Reserve’s seizure of AIG, the insurance company he’d built. An earlier Times article called the suit “asinine,” while a New Republic piece deemed it “mostly insane” and a New Yorker writer dubbed it “absurdist comedy.” A commentator at Bloomberg View likened it to “My Cousin Vinny” — a bit odd, since Vinny actually triumphed.

Yet it’s not so clear the Federal Reserve is laughing. My purpose here is not to predict how the trial, now under way in Washington, will come out. It is to suggest that the Fifth Amendment to the Constitution is neither “asinine” nor “insane.” The Fifth, which contains our bedrock protection of private-property rights, is at the heart of this case. What the Fifth says is that no person shall be deprived of property without due process of law and, if the property is taken for public use, just compensation.

Mr. Greenberg reckons he was denied both. The Fed seized AIG in September 2008. The job started to go down on the 16th, when the treasury secretary, Henry Paulson, the chairman of the Federal Reserve, Ben Bernanke, and other officials met with key members of Congress. According to Mr. Paulson’s own memoir, Senator Dodd twice asked “how the Fed had the authority to lend to an insurance company and seize control of it.” Mr. Bernanke insisted the law allowed it in “unusual and exigent circumstances.”

The congressional brass was skeptical. Senator Reid warned: “I want to be absolutely clear that Congress has not given you formal approval to take action. This is your responsibility and your decision.” Mr. Paulson was so nervous that, as they were walking out of the Capitol, he ducked behind a pillar and went into dry heaves — meaning, he tried to throw up. Defying the Constitution can do that to a man who’s sworn to defend it.

The case is also about Mr. Bernanke’s anger management. The Fed chairman himself later told Congress he was full of ire at what he saw as AIG’s exploitation of a gap in the regulatory structure. (For the record, Mr. Greenberg himself had resigned before AIG’s riskiest bets were made by Eliot Spitzer-installed management).

“If there’s a single episode in this entire 18 months that has made me more angry, I can’t think of one, than AIG,” the Fed chief later said.

There are those who like to talk about AIG as a “bailout,” though the government got nearly 80 percent of the company’s stock, far more than it exacted from other bailed-out firms. Also different: AIG’s management initially told the Securities and Exchange Commission it would put the matter to a vote of AIG shareholders. That would’ve given Greenberg, who ran Starr International, a big shareholder, a chance to say no. Or even scramble to put together financing for his own bailout.

But that wasn’t to be.

On Sept. 18, President George W. Bush said he thought the government takeover of AIG and Fannie Mae would “improve investor confidence.” AIG’s management seemed to lack confidence that its shareholders would approve the deal. On the 19th, it turned around and amended its filing with the SEC, deleting the promise of a shareholder vote.

Along the way, Mr. Greenberg contends, the government broke the Federal Reserve Act and Delaware law. He argues the government then used its ownership to engineer “ ‘backdoor bailouts’ on disparate terms” to favored institutions. All this, he argues, gives shareholders standing for the “just compensation” the Constitution requires for government takings. Greenberg reckons the share­holders are owed more than $40 billion. So whatever else this suit is, it’s hard to see where “ludicrous” and “asinine” come in.

Even the liberal papers are conceding that the AIG trial will at least provide a useful glimpse of the Fed’s performance in the financial crisis. True enough, and it may provide impetus for an even more serious investigation by Congress. A week before the AIG trial began, the House voted by a wide, bipartisan margin for a bill to conduct an audit of the Fed. This would go way beyond the ordinary audit, probing how the Fed conducts monetary policy.

The vote was 333 to 92. But over in the Senate, the Democratic leadership, no doubt partial to a Fed that soaks up so much of the debt issued to cover government deficits, has blocked the measure. If the GOP wins the upper chamber next month, the entire Congress could get behind the Fed audit. AIG, not the original reason for an audit, shows why one is needed.

If the bill passes, they could call it the Hank Greenberg Transparency Act of 2015.

This column first appeared in the New York Post.


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