Paulson Defends Role in Bank of America-Merrill Lynch Sale

By Binyamin Appelbaum
Washington Post Staff Writer
Thursday, July 16, 2009

Former Treasury secretary Henry M. Paulson Jr. plans to tell a House committee today that he was right to pressure Bank of America to complete its acquisition of Merrill Lynch because allowing the deal to fall apart would have damaged the companies and the broader economy, according to a copy of his prepared remarks.

The strongly worded testimony makes no apologies for the government's actions, which have become the subject of considerable controversy. Paulson acknowledges, for example, that he warned Bank of America that its senior managers could be removed if the deal fell through. He says the warning was issued because "it would be unthinkable for Bank of America to take this destructive action for which there was no legal basis and which would show a lack of judgment."

Paulson also plans to deny that the government inappropriately pressured Bank of America to withhold information from its shareholders about an agreement to provide the company with additional financial aid. Bank of America signed the deal to buy Merrill Lynch in September, without federal support, but completed the transaction in January only after the Treasury Department agreed to invest an additional $20 billion in the company and to limit its losses on a portfolio of troubled loans.

The House Committee on Oversight and Government Reform already has heard testimony on the government's role in the merger from Kenneth D. Lewis, Bank of America's chief executive, and from Ben S. Bernanke, chairman of the Federal Reserve. The hearings have become part of the broader debate about overhauling financial regulation.

Democrats argue that regulators allowed Bank of America to squeeze additional aid from the government, and that the secrecy surrounding the episode shows the need for additional oversight of the Fed and other regulators. Republicans argue that the government forced a private company to complete a deal it no longer wanted, and that the episode highlights the need for regulators to be restrained. Members of both parties are likely to press Paulson today to support their positions.

"This business deal also tells the story of what can happen when government authority goes unchecked, when there is no transparency and when there is no accountability," said Rep. Edolphus Towns (D-N.Y.), chairman of the oversight committee. "I will ask Mr. Paulson the same questions that I have asked Mr. Lewis and Chairman Bernanke -- was Bank of America forced to go through with the deal, or was this just an old fashioned shakedown?"

Paulson's testimony fits neatly with that of Lewis and Bernanke in one key respect. Lewis testified that regulators pressured him to complete the deal, and Bernanke testified that the Fed did not apply any pressure. Paulson, now working on a book about his role in the financial crisis, plans to tell the committee that he communicated to Bank of America his understanding of the Fed's position, but that he was never asked directly by the Fed to do so.

"My words in speaking to Mr. Lewis were my own," Paulson's prepared testimony says. "I also want to make clear, however, that I was expressing what I am confident was the strong opinion of the Federal Reserve." Paulson goes on to say that this understanding was based on "meetings and several phone calls."

Internal Fed e-mails obtained by the committee ahead of its earlier hearings show clearly that Paulson's understanding was correct -- senior Fed officials held internal discussions about issuing such a warning to the bank's executives.

While the story of that warning has dominated the hearings until now, investigators for the committee increasingly are focused on the details of the government's decision to give Bank of America a second round of financial assistance, on top of the Treasury's initial investment of $25 billion. Investors have charged that the company waited weeks to disclose this information, concealing the depth of its problems from public view.

Lewis, Paulson and Bernanke all have testified that a final decision on the aid package was not reached until January, and that it was disclosed soon thereafter. But investigators have found what they regard as discrepancies between this account and statements Lewis has made in other forums, including in testimony he provided to the New York Attorney General's Office, according to a person familiar with the matter.

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