MR. MARC FISHERFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Marc Fisher sitting in for Kojo. Names such as Enron, Bernie Madoff, Lehman Brothers and Goldman Sachs instantly summon images of bad actors on Wall Street, the symbols of America's fall into economic hard times.

MR. MARC FISHERBut for the Washington agency that is the nation's chief market regulator and enforcement agency, those names are reminders of an especially ugly chapter, a decade of failure to do anything about a cascade of wrongdoing that had a ruinous impact on the country. The Securities and Exchange Commission has been under fire for its role, or perhaps lack of any useful role, in detecting or pursuing some of the country's worst financial criminals.

MR. MARC FISHERNow a new story by Rolling Stone writer Matt Taibbi says the SEC's failure is even deeper than previously suspected. He details the agency's systematic destruction of tens of thousands of records of investigations that the agency started, but never pursued. Was it just bad recordkeeping or did those preliminary investigations hold the keys to unraveling enormous financial crimes?

MR. MARC FISHERMatt Taibbi joins us, and thanks for being here. Your story starts with a whistleblower named Darcy Flynn who testified to Congress that the SEC had been systematically destroying these records. These are records of investigations they had started, but then closed. What kind of investigations are we talking about? How large is this problem?

MR. MATT TAIBBIWell, the SEC classifies any preliminary investigation that starts and is not approved for a full blown formal investigation that involves subpoena power. They call those MUIs or matters under inquiry. With this whistleblower Darcy Flynn, who was an SEC attorney, what he found out was that dating back to 1993, the agency has been systematically destroying the records for all MUIs and that might be as many as 18,000 cases. So we know that some of these cases involved people like Bernie Madoff and companies like Lehman Brothers, AIG, Goldman Sachs and CityGroup. So it's an enormous volume of law enforcement intelligence that has just disappeared.

FISHERAnd all that’s left, as I understand it, are basically a single line about each of these investigations. So it'll say something like Goldman Sachs, the date and the issue, which might be market manipulation or insider trading or...

TAIBBIRight.

FISHER...financial fraud. So these are tantalizing tidbits or leads into what may have been investigations that could have perhaps saved us from some of the pain the country's gone through.

TAIBBIRight. Yeah, the important thing to take away from this is that, you know, the files that were destroyed contained leads. These were people that called into the SEC with tips about, you know, suspicious trades in their company. Or it might've been leads that were delivered to the SEC by self-regulating organizations like FINRA or the New York Stock Exchange where they might've seen patterns of behavior evolve over time.

TAIBBIAnd so all of these leads, these tangible, you know, paths that investigators could've traveled down, they're all gone. I mean, if you think about how cops operate, what's the most valuable thing for any law enforcement officer? It's his sources on the street. And what was destroyed in this activity were, you know, the sources of -- involving 18,000 cases. So you can just imagine, this is a treasure trove of intelligence -- the SEC's own intelligence that it destroyed.

FISHERNow, how is it possible that we didn't know about this prior to this story coming out, prior to this whistleblower coming forward? And how did the whistleblower's complaint come public?

TAIBBIWell, it's -- you know, how it evaded detection for, I mean, 17 years is still something of a mystery. Nobody really knows exactly how this went undetected for so long. The SEC, when I asked them, they were a little bit evasive about when this policy exactly started. In fact, their spokesman actually told me, I mean, we don't have any evidence that this hasn't always been our policy. So this may have been going on for longer than 17 years. It may have dated back decades, actually.

TAIBBIAnd it came to light when this whistleblower whose name is Darcy Flynn -- he's a 13-year veteran of the SEC. He worked as an investigator there, you know, for most of the last decade. But he was transferred to a new job. He's an attorney and his new duties in 2010 involved helping the SEC maintain its records. And he saw that on the SEC's own internal website, it actually had spelled out in writing an instruction to its employees that, you know, if you have a MUI that doesn't proceed to a full investigation, you should dispose of those records.

TAIBBISo that's how this -- you know, he brought this to the attention of his superiors and to the National Archives, which is an outside agency that was charged with, you know, maintaining and destroying federal records. And when -- he eventually had to deliver this information to some congressional committees 'cause he was concerned that not enough changes were being made.

FISHERNow, as I understand it, the whistleblower -- I'm sorry, the SEC had a deal, an arrangement with the National Archives where all of these records were supposed to be preserved. There was a specific command that these records that were being preserved would include case files relating to preliminary investigations. That's a quote from the deal. So what happened?

TAIBBIWell, first of all, no federal records of any kind, no matter how insignificant, you know, whether it's a -- you know, a receipt for, you know, a desk that the National Forestry Service bought or, you know, it doesn't matter what it is. You're not supposed to just willy-nilly destroy any federal records. That responsibility is solely that of the National Archives, from what I understand. But even beyond that, the SEC had a specific arrangement with the National Archives, which is, you know, called NARA, the National Archives and Records Administration, that the records for any preliminary investigations had to be maintained for at least 25 years. And if they were marked for destruction, they were to be destroyed, not by the SEC, but by NARA.

TAIBBISo there's some disagreement now between the SEC and NARA and this whistleblower about what exactly that schedule pertained to. There's some -- the SEC is maintaining that that particular arrangement didn't involve these MUIs. But either way, it doesn't matter. The -- you know, legally the SEC was not allowed to just destroy these documents.

FISHERWe're talking to Matt Taibbi, contributing editor for Rolling Stone magazine, and you can join our conversation about the SEC and financial irregularities by calling 1-800-433-8850 or e-mail us at Kojo K-O-J-O @wamu.org. I should note that we invited the SEC to participate in our discussion today, but they declined, citing the ongoing review in cooperation with the National Archives and Records Administration as to the proper retention and disposition of agency files. They said the SEC inspector general is reviewing this matter. And as a matter of policy, the SEC does not conduct interviews while the inspector general is doing reviews.

FISHERSo, Matt Taibbi, were you able to get anything from the agency about why they did this?

TAIBBINot about why, though they did confirm this activity. You know, as investigative reporters you don't often have a situation where there's a serious allegation made and you call up the company or the bureaucracy in question and ask them flat out if they did something bad and have them just tell you yes. And (unintelligible) ...

FISHERYeah, we did that. Well...

TAIBBIYeah, exactly. And that was this -- what happened with the SEC, it was a very surreal conversation that I had with them where, you know, I asked them, you know, is this true? Have you been disposing of these records? And they basically said, yeah, you know, we have been doing that. That's been our policy. And -- but they -- you know, they didn't tell me why, you know, they'd been doing this. And they -- you know, when I asked them what was the genesis of this policy, you know, they declined to provide any specifics.

FISHERBut your piece in Rolling Stone at least raises some possible reasons why they may have been doing this because there have been some extraordinarily close and perhaps improper connections between people who are working in enforcement at the SEC and people who are working at the companies that were under investigation.

TAIBBISure, yeah. No, the two prevailing theories from, you know, my sources in this case about why this was done were that, on the one hand, this was -- this arrangement was supremely beneficial to Wall Street companies because it erased, you know, a mountain of allegations of wrongdoing and definitely protected, you know, these big firms from future investigations. That was on the one hand. And on the other hand, obviously, it might've been beneficial to the SEC bureaucracy over the last ten years because it covered up, you know, records of incompetent and failed investigations.

TAIBBISo now if we want to go back and find out why the SEC didn't catch Bernie Madoff earlier or why it didn't uncover, you know, the fraud Lehman Brothers earlier, well, we just -- it's hard for us to do that now because the records of all those investigations have been wiped clean. So, yeah, definitely (unintelligible) ...

FISHERBut clearly, I mean, any police agency, any government agency that has investigative powers has -- they always keep their preliminary investigative records out of the public record because it would be unfair to targets when those cases come back as unfounded allegations. So...

TAIBBIOh, that's absolutely true. I mean, there's no reason why you would want to publish the -- you know, the results of an informal or preliminary inquiry. But you also don't want to destroy those records. I mean, you think of how any police agency operates, whether, you know, if they're a drug enforcement agency, if you open a case, or let's just say there's an open murder case and you never actually find who did it, well, you certainly want a record of all the interviews that you do and all the leads that you accumulate during that investigation because they might, in future investigations, prove useful.

TAIBBIYou know, especially with regard to white collar crime, I think it's particularly true that you want to keep the records because it's crucial to try to identify patterns of conduct. You know, especially with the -- you know, the behavior of people like Bernie Madoff, if you're getting the same kind of complaint, you know, over and over and over again, well that -- you know, that's something that any investigator would want to know. But they were kept in the dark and they didn't have those records of those patterns.

FISHERWe will take a closer look at some of the reasons behind this destruction of thousands of records of preliminary investigations at the SEC and be joined by two guests who have experienced taking a closer look at the SEC after a short break. You're listening to "The Kojo Nnamdi Show." I'm Marc Fisher sitting in for Kojo.

FISHERWelcome back, I'm Marc Fisher of the Washington Post, sitting in on the Kojo Nnamdi show. And we are talking about the SEC and whether it has failed to properly regulate financial problems on Wall Street over the last decade or so and the destruction of thousands of records of preliminary investigations into financial irregularities. We're talking with Mike (sic) Taibbi, he's a contributing editor for Rolling Stone whose written about the destruction of these documents.

FISHERAnd joining us now are Jacob Frenkel, he's a partner at Shulman Rogers in Potomac and a former federal prosecutor -- well he was an enforcement lawyer at the SEC from 1988 to 1997. And Michael Smallberg who is an investigator at the Project on Government Oversight, a Washington based watchdog group. And Jacob Frenkel, so you were in the office where these MUI's or MUIs were being created, these preliminary investigations. Did you all routinely dispose of them when they didn't develop into a full fledge investigation?

MR. JACOB FRENKELWell, first of all, to be fair, we don't talk about what we did or did not do within the agency. What I can tell you is, with respect to MUI's, I think it's important to characterize correctly what is a MUI. It is a matter under inquiry. It is the most preliminary level of inquiry conducted within the enforcement division. Without question, when that information morphed into a substantive investigation, that information, absolutely, unequivocally was retained.

MR. JACOB FRENKELWith respect to patterns in MUI's, those were tracked. I think, to characterize that preliminary stage of the investigative process, as either a case or even an investigation, I don't think, really is fair. Certainly the optics of this are bad for the agency but I would also think that when you start talking about an investigative process in an issue such as this, this is a scenario that came to light as a result of a whistle blower.

MR. JACOB FRENKELIn fact, if you look at -- even in Matt's story, I mean, one of the things that I always look at it is -- and looked at, when I was at the agency, is "Where does that information come from? Does the person who is providing that information have a bone to pick with the agency?" I'm rather curious about how an enforcement lawyer who left the agency to dabble in real estate, comes back into records management. Why did he leave? And who is his lawyer?

MR. JACOB FRENKELSomebody who himself, was a significant complainant to Congress. So, I mean, on a scale of one to 10, with 10 being the most credible and one being the least credible, I mean, from what I know about what I've read in Matt's article, which is really the extent of my source of information, my gut is telling me, this is a one on the credibility rating. But again, the optics, never the less, are bad for the agency.

FISHERWell, why -- give us some insight into why the agency would have destroyed records that it had an agreement with the national archives to keep?

FRENKELWell -- and, I think, that's exactly what we're going to find out from David Kotz' investigation. That's what the inspector...

FISHERThat's the inspector general.

FRENKEL...that's the inspector general. And that's exactly what he is there to do. We will get a report. I mean, for many years, the SEC's inspector general was well recognized to be ineffective. Whether people agree or disagree with the reports that have come from this inspector general, he has been aggressive, he's been effective, he has made known, publicly, what significant findings are, in his investigations.

FRENKELSo I think, we will get an answer. What I'd like to do is read his answer rather then, sort of, speculate as to what exactly happened. But in terms of "Do I really, truly believe, having spent almost 10 years there, that anything that was destroyed, whether intentionally in a non-compliant way or even inadvertently. And granted, when we talk about 18,000 files or 18,000 records of preliminary inquiries, there's certainly reason for concern in raising the issue. I seriously doubt whether there's anything substantive that the agency lost.

FISHERWell, whether it was substantive or not, we'll never know, obviously, because it's gone. But assuming that these records are the corollary to when a police officer takes an initial report at a crime scene and then that gets, either does or doesn't get developed into a full fledged investigation, that would seem to be a rather crucial record to have, if you are then going to go back and find patterns of misbehavior by companies, that sort of thing.

FISHERSo -- and Senator Chuck Grassley of Iowa, who has been on top of this issue, has written a letter to the SEC chairman saying that the destruction of these thousands of documents would greatly handicap the SEC's ability to create patterns in complex cases. The only fact that we do know is that they did not create -- they did not see these patterns that were developing over the last decade.

FRENKELWell, Marc, I mean, I would -- I mean, I think, we've both have read Senator Grassley's letter. And, in fact, I mean, he presumes in his letter -- I mean, the way he framed this letter to Chairman Shapiro was similar to the question -- the notorious question, you know, that lawyers always play with "Have you stopped beating your wife?" The presumption being, that if you say, yes, you did, if you say, no, then you're continuing to do so.

FRENKELBecause his -- the presumption in his letter was that there was credible information or these were extremely important cases. I mean, I think, the public can be confident that...

TAIBBIWait, wait a minute. I have to interrupt you here. First of all...

FISHERMatt Taibbi.

TAIBBI...you know, when he's talking about the credibility of the whistle blower, the SEC admitted this activity. I don’t know what we're worried about, why we're ready about credibility. The allegation is that they destroyed these records. The SEC confirmed the allegation, that's one. Two, we know, for a fact, that some of these cases, at least, did involve companies that were involved in serious wrong doing.

TAIBBIAnd when we know that a couple of these MUI's, at least, involved Bernie Madoff and that they were from years before Bernie Madoff's activity became public. So how can we deny that these MUI's potentially, at least, were very important records? I mean, they had to have been.

FRENKELThat's the -- Matt, that's no different than using Marc's example that saying that, every moving violation, you know, is somehow indicative of a pattern. I think, the presumption that I'm really disagreeing with -- because you're right, the agency has agreed that this has occurred. No, I'm not questioning that this, in fact, has occurred. And...

TAIBBIThen why are you questioning the credibility of the...

FRENKEL...because...

TAIBBI...whistle blower?

FRENKEL...because the whistle blower is being relied on to give credence to the substance of these -- of the content of the MUI's. There is no information...

TAIBBIThat's not true.

FRENKEL...one way or another.

TAIBBIAll he's done is, he's (unintelligible) ...

FISHERHe said they destroyed the documents, they said "Yes, we destroyed the documents."

FRENKELBut, I know, but I think of, at least, in reading your article, the inference from your article, he said -- what I gleam from your article was the -- there was an extension drawn from the fact that, you know, this whistle blower's making this report. That there was credibility or there were substantive issues in these investigative files. And I think what it does is...

TAIBBIWell, then your issue is with me, not the whistle blower.

FRENKEL...can I -- well, no, because I'm taking issue with the extent that he has told Congress, as well, or alleged to Congress such that Senator Grassley is writing that there is credible information, referring to these important cases. These are all communications that mischaracterize what is a MUI.

FISHERAnd that's Jacob Frenkel. He's a partner at Schulman Rogers in Potomac, a former enforcement lawyer at the SEC. And the other voice you heard is Matt Taibbi, a contributing editor for Rolling Stone magazine. Let's bring Michael Smallberg into this conversation. You're an investigator at the Project on Government Oversight. Obviously the context for this whole debate over whether these records ought to have been preserved.

FISHERIs whether the SEC failed in its obligation to protect the public from the financial problems and irregularities that took place at companies such as Lehman Brothers and Goldman Sachs. So would these documents have or these preliminary investigations, potentially have enabled the SEC to protect the country from the financial crisis that we fell into?

MR. MICHAEL SMALLBERGAs Matt mentions in his article, it is a little difficult now to go back and hypothesized what could've occurred if these files had been preserved. I mean, certainly, it's concerning when we hear that there were files associated with some of the earlier inquiries into Bernie Madoff, you know, an inquiry in which the SEC did receive multiple tips and wasn't able to, essentially, connect the dots and crack down on this Ponzi scheme until years later when investors had, you know, lost their life savings investing in this.

MR. MICHAEL SMALLBERGSo, you know, I mean, I guess, we're left to speculate whether the SEC might have been more successful at its enforcement efforts, had they had these files maintained. But another key issue that this raises for us relates to this issue of the revolving door in which former SEC staffers leave the agency and go to work for the companies or at least for the industry that they'd previously overseen.

MR. MICHAEL SMALLBERGWe came out with a report, a few months ago, that tracked statements that had been filed by, in fact, hundreds of these formers staffers over a five year period when they expected to come to the SEC, lobbying on behalf of the SEC's regulated entities. And, you know, Matt talks in his article about one case in which the SEC was looking into improper conduct.

MR. MICHAEL SMALLBERGAt Deutsche Bank, Deutsche, in turn, hired a former enforcement director to represent them...

FISHERNot just to represent them but become their chief counsel. And that this took place just days after he decided to drop the investigation into Deutsche Bank.

SMALLBERGExactly. And so, you know, when we look at this trend of some employees leaving the agency and going to work so quickly for an industry that they'd previously overseen, when I consider that turnover on top of the fact that there was this pattern of erasing some of these files, it does make me wonder a little bit whether this might help to explain why the SEC has had some trouble connecting the dots in its investigation.

FISHERWell, as Matt Taibbi's article reports, in the past five years, there have been more than 400 cases of SEC enforcement employees going right to work for outside companies that had business before the SEC. Jacob Frenkel, is there a problem with that?

FRENKELWell, federal regulations permit it. And, you know, one of the issues for the SEC, all along, has been the ability to retain qualified senior staff because of the compensation disparities. I think, if you were to talk to 90 percent of those 400, they would tell you that if the compensation matrix or table available to continuing working at the SEC would permit them, with family, with other financial obligations, to continue on a federal government salary, they probably would still be there. And that institutional knowledge would stay a lot longer.

FISHERWell, the...

FRENKELIt is...

FISHER...alternatively, a lot of them may have gone into work for the federal government for the SEC expressly to get the qualifications or the connections so that they could go into the private sector and make the big money.

FRENKELAnd Marc, I agree with you. I mean, I think, that's a fair presumption but I -- but the reason I chose the arbitrary number of 90 percent is I really think that the majority who believe in the mission of the agency, particularly when you talk about enforcement lawyers, that they would, if they could financially, would have preferred to stay. And the financial services industry, as well as law firms, recognize fully the value of the experience that these people then bring to their role as advocates for industry participants as well as, as advocates for people who are under investigation.

FRENKELThat revolving door, there's no question, creates more than an optical problems, creates ethical problems. And we know that the SEC inspector general is looking at a significant issue and there will be a report at sometime involving Bernie Madoff and the former general counsel of the agency. So the -- I mean, I'm not questioning that this is -- it is a real issue.

FRENKELBut at the same time, you can't tell someone "No, you can't work if you leave the agency." And the challenge in -- in the federal regulatory picture overall, is to strike an appropriate balance and that's why there has to be an approval for recently left officials.

FISHERLet's go to a call. This is Tom in Pikesville. Tom, it's your turn.

TOMHey, thanks, thanks for taking my call. Listen, I've been in compliance in financial services industry and I have to say, I'm seeing a pattern here. The SEC is, first of all, not a law enforcement agency. It can't bring criminal cases, it can only bring civil cases. Secondly, they don't have enough investigators to actually do their job. Thirdly, they only send around an investigator every -- once every couple of years to register investment advisors which is why everybody's pushing to become a registered investment advisor.

TOMNobody wants to be under FINRA anymore because FINRA actually investigates and looks into people. It's -- this is, like, water is wet kind of thing. Yeah, the SEC is incompetent. They could not have caused Bernie Madoff because Bernie Madoff is not -- you know, that's not their job. Their job is to look good and...

FISHERWell it's...

TOM...right now they don't even look like that.

FISHER...it's interesting that you mentioned that because there was a fascinating study by Jonathan Macey at the Yale Law School, looking into why the SEC failed to get a hold of all these financial irregularities over the last decade. And the -- he concludes that there are basically three reasons the SEC moved from an agency dominated by financial experts to one dominated by lawyers which lead to a glacial pace in terms of these -- how quickly these investigations got done.

FISHERHe also talks about the revolving door so that the staffers main incentive was to maximize their reputations in the securities profession in order to get those high paying jobs. And finally he says, basically, the more financial crisis there are, the more secure the SEC's role is. So there's really no incentive to actually solve the crisis, rather to just sort of look like they're looking into them. Is that a fair analysis, Michael Smallberg?

SMALLBERGYeah, I would certainly agree that all those trends were factors. But, you know, I would point out though that we still feel that the SEC needs to receive the funding from Congress that's required to achieve its mission. I mean, certainly, we've seen that there have been other problems with the SEC use of its existing funding and we can argue about whether they could've made better use of resources over the last decade or so.

SMALLBERGBut we do have concerns about giving more authority to an organization, the caller mentioned FINRA, which is a private self regulatory group that's not a government agency, does not have to follow by the same transparency and ethics rules. And, you know, we would be concerned about any movement toward trusting industry to regulated self since our feeling is that a lot of those self regulatory regimes have ultimately failed to protect the investors and cover some of the more serious crimes.

FISHERAnd Jacob Frenkel, I mean, this notion that the agency is over lawyered and that the lawyers there don't have the financial expertise to recognize misdeeds when they're right in front of them is -- any merit to that?

FRENKELA lot of merit to that. And that's exactly what Mary Shapiro and the leadership in the enforcement division -- when Mary Shapiro came in and said "This is something that needs to be changed," has been changing. And that's why the enforcement division set up, you know, some specialized units within the division, are hiring more market professionals, so that that level of market expertise, experience, intuition, all can be brought to bear on the investigative process.

FRENKELAnd, you know, and yes, there was definitely a window in the last decade when the SEC had become ineffective. And I had plenty of opportunity in Madoff and Stanford cases to be critical of the agency as an alum. But overall, it is still effective. We have to recognize, as Tom correctly pointed out, it is not a law enforcement agency despite its belief that it is. It is a civil regulator. It is responsible for regulating the capital markets. And, I think, the Macey study hit on a lot of critical issues. And I think, Mary Shapiro and the enforcement leadership are trying to address them.

FISHERAnd Matt Taibbi, as you looked into this, you obviously found numerous examples of these -- this revolving door and what appears to be its impact on whether these very important investigations blossomed or went all the way through. And can you give us an example of a case in which someone intervened, perhaps in a questionable manor?

TAIBBIWell, sure. You know, I know that Mr. Frenkel had some unkind words for the lawyer representing this current whistle blower but, you know, Gary Aguirre, who is the lawyer for Darcy Flynn in this case, he was a former SEC investigator and he was investigating a case involving insider trading that involved, then CEO of Morgan Stanley, John Mack. And when he requested permission to interview Mr. Mack, he was denied by some superiors at the SEC.

TAIBBIOne of those superiors went on, within a year, to go to work for the same law firm that represented Morgan Stanley in that affair. So that's a classic example. Aguirre, in that case, was fired and the investigation into John Mack never proceeded. And, again, it's just -- that's an example of the revolving door. And we've seen that a few times including that Deutsche Bank case that Michael Smallberg mentioned.

FISHERDo any of you have any confidence that the Inspector General will come up with a reasonable rational explanation for the destruction of documents and why that did or did not impede the full scale investigations of these companies that have brought such damage to the economy? Michael?

SMALLBERGI think this is an extremely strong and aggressive inspector general, and I have faith that he will get to the bottom of this issue. I would add, however, that we've had some concerns over the past few years that in cases when the inspector general does find serious wrongdoing and issues disciplinary recommendations, we tend to see a trend in which the SEC either ignores or minimizes those recommendations.

SMALLBERGThere have even been a few cases where the SEC will hire an outside firm to essentially review the inspector general's recommendation. So I would just add that I think it's really important that whatever the IG's findings are that those be made public, which has not always been the case with inspector general reports over the years, and also that the SEC take whatever corrective action is necessary to address this problem.

FISHERMichael Smallberg is an investigator at the Project on Government Oversight, a Washington watchdog group. We spoke with Matt Taibbi, a contributing editor at Rolling Stone magazine and author of this article on the SEC and the destruction of thousands of documents on preliminary investigations there, and Jacob Frenkel is a partner at Schulman Rogers in Potomac, Md. He's also a former enforcement lawyer at the SEC from 1988 to 1997. I want to thank you all for joining us today.

FISHERI'm Marc Fisher sitting in for Kojo Nnamdi, and after this short break, a remembrance of civil rights hero Stetson Kennedy. You're listening to "The Kojo Nnamdi Show."