[Joint House and Senate Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-196
 
                FOLLOWING THE MONEY: A QUARTERLY REPORT
                    BY THE SPECIAL INSPECTOR GENERAL
                              FOR THE TARP

=======================================================================


                                HEARING

                               before the

                        JOINT ECONOMIC COMMITTEE
                     CONGRESS OF THE UNITED STATES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 23, 2009

                               __________

          Printed for the use of the Joint Economic Committee




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                        JOINT ECONOMIC COMMITTEE

    [Created pursuant to Sec. 5(a) of Public Law 304, 79th Congress]

HOUSE OF REPRESENTATIVES             SENATE
Carolyn B. Maloney, New York, Chair  Charles E. Schumer, New York, Vice 
Maurice D. Hinchey, New York             Chairman
Baron P. Hill, Indiana               Edward M. Kennedy, Massachusetts
Loretta Sanchez, California          Jeff Bingaman, New Mexico
Elijah E. Cummings, Maryland         Amy Klobuchar, Minnesota
Vic Snyder, Arkansas                 Robert P. Casey, Jr., Pennsylvania
Kevin Brady, Texas                   Jim Webb, Virginia
Ron Paul, Texas                      Sam Brownback, Kansas, Ranking 
Michael Burgess, M.D., Texas             Minority
John Campbell, California            Jim DeMint, South Carolina
                                     James E. Risch, Idaho
                                     Robert F. Bennett, Utah

                     Nan Gibson, Executive Director
               Jeff Schlagenhauf, Minority Staff Director
          Christopher Frenze, House Republican Staff Director


                            C O N T E N T S

                              ----------                              

                      Opening Statement of Members

Hon. Carolyn B. Maloney, Chair, a U.S. Representative from New 
  York...........................................................     1
Hon. Kevin Brady, a U.S. Representative from Texas...............     2

                               Witnesses

Statement of Neil Barofsky, Special Inspector General, Troubled 
  Asset Relief Program...........................................     4

                       Submissions for the Record

Prepared statement of Representative Carolyn B. Maloney..........    40
Prepared statement of Representative Kevin Brady.................    40
Prepared statement of Neil Barofsky..............................    42
    Letter dated April 28, 2009, from Representative Hinchey to 
      Chair Maloney..............................................    49
    Letter dated May 29, 2009, from Neil Barofsky to 
      Representative Hinchey.....................................    50
    Letter dated May 20, 2009 from Neil Barofsky to Chair Maloney    53
Prepared statement of Representative Michael Burgess.............    55


                    FOLLOWING THE MONEY: A QUARTERLY



                    REPORT BY THE SPECIAL INSPECTOR



                          GENERAL FOR THE TARP

                              ----------                              


                        THURSDAY, APRIL 23, 2009

             Congress of the United States,
                          Joint Economic Committee,
                                                    Washington, DC.
    The committee met at 9:30 a.m., in Room 210, Cannon House 
Office Building, the Hon. Carolyn B. Maloney (Chair), 
presiding.
    Senators present: Klobuchar and Casey.
    Representatives present: Maloney, Hinchey, Sanchez, 
Cummings, Snyder, Brady, and Burgess.
    Staff present: Gail Cohen, Nan Gibson, Colleen Healy, 
Hayley Matz, Andrew Wilson, Lydia Mashburn, Chris Frenze, and 
Robert O'Quinn.
    Chair Maloney. The meeting will come to order, and I 
welcome the members of the panel and our special guest.
    Good morning. I want to welcome Mr. Barofsky, the Special 
Inspector General for the Troubled Asset Relief Program, and 
thank him and his staff for his testimony today on the 
SIGTARP's new report to Congress, just released last Tuesday.

  OPENING STATEMENT OF HON. CAROLYN B. MALONEY, CHAIR, A U.S. 
                  REPRESENTATIVE FROM NEW YORK

    Chair Maloney. The SIGTARP reports to Congress quarterly, 
and this is the second report. Like the first report, issued 
February 6th, this report takes a strong but clear position 
against the aspects of the TARP program that the SIGTARP 
believes risk promoting fraud, waste, and abuse. Mr. Barofsky 
is a former prosecutor who does not shrink from telling it like 
it is, so the interests of the SIGTARP's mission is to make the 
best use of our taxpayers' dollars.
    The SIGTARP's reports distinguish themselves by thorough 
but very clear explanation of the TARP programs and the 
SIGTARP's audit and investigation strategy, as well as specific 
recommendations on steps Treasury should take to prevent waste, 
fraud, and abuse in the program.
    Regrettably, some of the key recommendations in this report 
reiterate critical recommendations in the first report--
recommendations that would promote transparency and 
accountability and reduce the potential for fraud and 
misappropriation, but which Treasury has yet to adopt.
    The second report is even more critical to our 
understanding than the first, in part because the TARP has 
become such a complex series of programs and in part because 
the dialogue between the SIGTARP and Treasury on key issues is 
more advanced and is getting into some specific issues that are 
of great interest to policymakers and to this committee.
    As a proponent of greater transparency of the program, I 
requested that the Federal Reserve release AIG counterparty 
information; and the disclosures were made last month. The 
SIGTARP is set to audit the payments to the AIG counterparties 
and investigate why it was deemed necessary to redeem these 
securities at full value. This is a key issue that lies at the 
heart of the AIG rescue: Why were the counterparties made whole 
at the expense of the taxpayer? Shouldn't they have had to 
share in the loss?
    The report repeats the recommendation of the first report 
that Treasury must require TARP recipients to report the use to 
which they put the TARP money. This recommendation echoes the 
concerns of legislation I have introduced with many of the 
members of this committee that would require Treasury to track 
the TARP funds, even using presently reported or public 
information. Treasury has not adopted this very important 
recommendation, but the work of the SIGTARP, including a survey 
they conducted of some 364 TARP recipients, shows that 
additional information can be provided.
    On a basic level, it is absolutely critical that we know 
where the money has gone and how it has been used. There are 
reports that some banks getting TARP money have used it to buy 
banks in China and highways in Spain or even to short the stock 
of their competitors. These emphasize the need for us to know 
where the money has gone. Beyond that, we should be able to 
assess, looking at available data and performance measurements, 
whether or not these funds have been used effectively.
    However, these lessons are not always reflected in the new 
proposed programs. As this report notes, the PPIP has some 
inherent features that make it vulnerable to conflicts of 
interest. The government would be remiss in its duty if it were 
not to impose rigorous reporting and disclosure requirements on 
these managers and investors. I am concerned that Treasury 
Secretary Geithner, in his testimony Tuesday, headed in the 
opposite direction, saying that Treasury would exempt the PPIP 
participants from the executive compensation requirements of 
the TARP statute.
    The goals of transparency and accountability that guide the 
SIGTARP inform this new report and its recommendations. It is 
crucial not only to the success of the TARP but to the recovery 
of our financial system and our economy that we pay very close 
attention.
    [The prepared statement of Representative Maloney appears 
in the Submissions for the Record on page 40.]
    Chair Maloney. I very much look forward to your testimony 
and recognize the ranking member, Mr. Brady.

 OPENING STATEMENT OF HON. KEVIN BRADY, A U.S. REPRESENTATIVE 
                           FROM TEXAS

    Representative Brady. Thank you.
    I am pleased to join with you in welcoming Inspector 
General Barofsky before the committee this morning. His office 
is one of the most important guardians of the trillions of 
dollars taxpayers have at risk in the massive bailouts of large 
financial institutions.
    Unfortunately, as Kansas City Federal Reserve President 
Thomas Hoenig testified earlier this week, these bailouts 
``risk prolonging the crisis while increasing the cost.'' In 
this context, I found the Inspector General's most recent 
report quite disturbing.
    Mr. Barofsky, your report contains very troubling 
information that has not been previously disclosed. This report 
identifies numerous key weaknesses in the design and 
implementation of the government bailouts that could greatly 
increase their cost.
    For example, according to your report, the Treasury 
Department has indicated it will not adopt the special 
Inspector General's recommendations that all TARP recipients 
``account for the use of TARP funds, set up internal controls 
to comply with such accounting, and report periodically to 
Treasury on the results with appropriate sworn 
certifications.'' The complexity and lack of transparency in 
TARP programs are further reason for concern.
    I think the key question before the committee this morning 
is why this Treasury continues to resist adopting many of the 
commonsense safeguards recommended in your report. The massive 
Public-Private Investment Program unveiled by Secretary 
Geithner is, to many, key to our Nation's economic recovery.
    Your report notes many aspects of the Public-Private 
Investment Program could make it inherently vulnerable to 
fraud, waste, and abuse. Vulnerabilities include the huge size 
of the program, along with conflicts of interest, collusion, 
and money laundering.
    With regard to money laundering, which you identify as a 
potential risk, your report notes it would be unacceptable if 
TARP or related funds, ``were used to leverage the profits of 
drug cartels or organized crime groups.'' Unlike banks and 
retail brokers, the government's proposed public-private 
partnerships are not currently subject to comparable disclosure 
rules to prevent money laundering and abuse. The question is, 
why not?
    Furthermore, the report demonstrates how interactions 
between two different bailout programs could encourage 
excessive leverage and greatly magnify taxpayer losses. In 
other words, without adequate protections, the toxic loan 
program could be gamed for profit by the financial institutions 
it is trying to save, or used as a legal vehicle for those who 
cannot launder their money through existing financial 
institutions. The question is, why not address in advance the 
vulnerabilities your report has identified?
    With regard to another component of the bailouts 
administered by the Fed, your report said Treasury should 
require additional anti-fraud and credit protection provisions 
specific to all mortgage-backed securities before participating 
in an expanded TALF, including minimum underwriting standards 
and other fraud prevention measures.
    According to the latest estimates, the amount of losses 
from toxic assets in the U.S. alone may be as high as $2.7 
trillion. This clearly is a huge potential liability for 
American taxpayers. Unfortunately, Treasury's financial rescue 
plan seems designed to marginalize Congress in this debate and 
avoid the appropriations process. Nonetheless, Congress should 
not finalize the 2009 budget resolution without considering the 
tremendous costs of the ongoing bailouts.
    Economic research shows that the national debt following 
this financial crisis may increase by as much as $8.5 trillion 
in as few as 3 years. This grim fiscal prospect should be an 
overriding consideration as we consider budget priorities and 
proposals for yet more spending. Congress should not go on an 
irresponsible spending spree with trillions of dollars of 
bailouts already threatening the taxpayers.
    Inspector General, you have raised serious and troubling 
questions in your report. Let's hope we can receive 
satisfactory answers to them from this administration.
    I would yield back.
    [The prepared statement of Representative Brady appears in 
the Submissions for the Record on page 40.]
    Chair Maloney. I would now like to introduce our 
distinguished witness.
    Neil Barofsky is the Special Inspector General for the 
Troubled Asset Relief Program. He was confirmed by the Senate 
on December 8, 2008, and was sworn into office on December 15, 
2008.
    Prior to assuming the position of Special IG, Mr. Barofsky 
was a Federal prosecutor in the U.S. Attorney's Office for the 
Southern District of New York for more than 8 years. In that 
office, Mr. Barofsky was a senior trial counsel who headed the 
mortgage fraud group which investigated and prosecuted all 
aspects of mortgage fraud, from retail mortgage fraud cases to 
investigations involving potential securities fraud with 
respect to collateralized debt obligations.
    One of the matters that Mr. Barofsky supervised was the 
broad investigation into the $55 trillion credit default swap 
market which was conducted in partnership with the New York 
State Attorney General's Office.
    Mr. Barofsky is a magna cum laude graduate of the New York 
University School of Law.
    I want to thank you very much for your work, for being with 
us today, and please proceed with your testimony. And I welcome 
all my colleagues and thank them for being here at this 
important hearing. Thank you.

STATEMENT OF NEIL BAROFSKY, SPECIAL INSPECTOR GENERAL, TROUBLED 
                      ASSET RELIEF PROGRAM

    Mr. Barofsky. Thank you, Madam Chair, and thank you for 
that kind introduction. It is a privilege to appear before you 
today and before this committee to discuss our quarterly report 
to Congress.
    It was approximately a little bit more than 6 months ago, 
close to 7 months, that the Emergency Economic Stabilization 
Act was enacted and a little bit over 3 months, 4 months, since 
I took office. During that time period, the original concept of 
the bailout designed to be a $700 billion program to buy up 
toxic assets from struggling financial institutions has changed 
significantly. We are now charged with overseeing 12 separate 
programs involving, by our calculation, up to $3 trillion of 
predominantly government money. TARP money, the $700 billion, 
is the seed; and it was combined with guarantees by the FDIC 
and nonrecourse loans from the Federal Reserve.
    This is a daunting and historic challenge for my office; 
and, as we report in our quarterly report, as I have been 
building my office I have addressed three primary areas in 
carrying out this task: enforcement, transparency, and 
coordinated oversight.
    I would like to first discuss what we have been doing on 
the enforcement front. This is of particular importance to us 
because, of the four oversight bodies referenced in the bailout 
act, we stand alone as the one having a criminal law 
enforcement body. I recently have been described as the TARP 
cop, and we take that role very, very seriously.
    Our hotline is up and running, available on the Internet at 
our Web site: www.SIGTARP.gov. We have a toll-free telephone 
number: 877-SIG-2009. We process more than 400 referrals from 
that hotline. We have had tremendous response to it. We have 
had--of our 21 ongoing criminal investigations, a third of them 
come from the hotline, tips from whistle-blowers, insiders, and 
victims of fraud.
    Our approach as an investigations division as we build is 
to be extremely proactive. We are seeking to, in many ways, to 
redefine Federal criminal law enforcement in reaction to large 
government programs.
    I think a best example of that is our assembling of the 
TALF task force, which we are about to expand to include not 
only the TALF program but also the Private-Public Investment 
Program. This task force will then be addressing up to $2 
trillion of coverage of the bailout programs. It includes us, 
of course, as well as seven other law enforcement agencies, 
including the FBI, the SEC, the IRS, FinCEN, the IG for the 
Federal Reserve, the Postal Inspection Service, basically a 
who's who of white collar criminal law enforcement.
    The way that we are seeking to redefine the policing of 
these programs is to put enforcement up front. Way too often in 
the past there has been a launch for a Federal government 
program, then there is the fraud, then there is the law 
enforcement reaction.
    What we are trying to do is move that reaction up the 
chain, not only just before the actual fraud but even in the 
formation of these programs. And what I mean by that is, as was 
referred in the introductions, in our quarterly report we make 
specific recommendations about some of these programs that have 
not yet been rolled out in their entirety. Those 
recommendations came not just from our own study and analysis 
but consulting with members of our task force. We are seeking 
to combine the collective resources, knowledge, and expertise 
of these fine Federal law enforcement officers to help protect 
the program before they go out.
    And the second thing that we are doing through that is 
deterrence. By letting all those out there who may seek to 
criminally profit off of these programs to know that we are out 
there and we are not alone, that this is a combined Federal law 
enforcement. We are going to marshal our resources to bring 
those who may try to steal to justice.
    And I think another great example of that is what happened 
yesterday. Yesterday, I was down in Tennessee announcing the 
first criminal charges being filed in connection with the 
SIGTARP investigation. Gordon Grigg was charged with eight 
counts of mail and wire fraud through his conducting of a scam 
that involved selling a fictional investment, TARP-backed 
securities, something that doesn't exist, cannot exist, was a 
pure creation of his criminal imagination.
    What is significant about this case is not the numbers. It 
was a $10 million securities fraud. But it shows you what 
coordinated law enforcement can do.
    We first learned of this case back in January when the SEC 
called us up and told us what was going on. They asked us for 
our assistance; and we helped shut the scam down, helping them 
get a temporary restraining order. After that, we used our 
unique position to coordinate a criminal law enforcement 
response. The FBI, the Postal Inspection Service, and the U.S. 
Attorney for the Middle District of Tennessee, coordinated 
together to get the filing of those charges.
    And I think that these charges indicate and should signal 
to those considering to commit fraud that we are out there. It 
doesn't matter what the size of the fraud is, whether it is 
large or small; it doesn't matter where the fraud is committed, 
whether it is on Wall Street or on Main Street; and it doesn't 
matter who the victim of the fraud is. Whether it is the United 
States, it is government itself, individual unsuspecting 
investors, such as in the Grigg case, or even struggling 
homeowners, the Federal government stands ready, willing, and 
able to enforce the laws and to make sure that these folks get 
brought to justice.
    The second area that we are focusing on is, of course, 
transparency. On my eighth day in office, December 23rd, we 
made our first of our series of recommendations to Treasury, 
and these were largely based on our concerns about 
transparency. One of them, which has been adopted, was that 
Treasury post all of its agreements up on the Internet related 
to the TARP, although not a terribly complicated concept but 
one that hadn't been adopted at that point. And in the last 
administration they largely agreed to do so; and Secretary 
Geithner, shortly after he took office, fully adopted that 
recommendation.
    We also made the recommendation, however, which was 
referenced in the opening comments, which has not been adopted; 
and that is that Treasury require all TARP recipients to 
account for their use of funds. This is a recommendation that 
we made back in late December. It is a recommendation we 
continue to make. It was referenced in our last report, and it 
is referenced in this report.
    Our efforts to get this recommendation implemented met only 
with success with respect to two TARP recipients, Citigroup and 
Bank of America, but, otherwise, it hasn't come to pass. Even 
this week, when the final agreement was inked with AIG, provide 
AIG with another $30 billion of taxpayer money, once again what 
we believe is a basic concept of oversight, making the 
recipient account for the use of funds, was left out.
    What we did because of our commitment to transparency in 
late January, early February, was to take matters into our own 
hands. We launched our own audit by surveying each of the TARP 
recipients; and what we found after we got 100 percent response 
rate from the 364 institutions that we surveyed was that you 
can--it is possible and you can get good results from requiring 
or asking banks how they are using the money. Particularly for 
those financial institutions that established internal controls 
before they got the money, made the conscious effort to try to 
keep track of the funds.
    This is a recommendation we made to Treasury that hasn't 
been adopted, but some financial institutions did it on their 
own. And those that did were able to give us some very specific 
answers, sometimes granular detail, about specific actions they 
were able to take that they wouldn't be able to take but for 
TARP funds. Sometimes even individual loans that were made out 
of TARP money.
    And I think that the results of the survey--and we are 
going to be putting a preliminary report out hopefully in 
June--will indicate that the prior complaints that are 
impractical or impossible or a waste of time are simply 
unfounded complaints; and we are going to continue to push the 
Treasury to adopt this recommendation.
    Also part of our transparency efforts in our oversight is 
through our audit function. We currently have six audits 
pending, as was mentioned. Not only is it on use of funds but 
on executive compensation, AIG counterparties, the recent bonus 
and retention payments made by AIG, a case study into Bank of 
America and Merrill Lynch and how Bank of America was the 
beneficiary of, in four different transactions, three different 
TARP programs, $45 billion in cash and more than $100 billion 
of toxic asset guarantees, as well as several other issues that 
we are looking into.
    And, of course, also part of our oversight function is 
making recommendations; and, as I noted before, we don't do 
these in a vacuum. For example, in our report, we consulted 
with the mortgage fraud experts at the FBI. We sat down with 
them before even any of the details of the mortgage 
modification program were rolled out because we thought it was 
so important.
    In drawing on my own experience as a mortgage fraud 
prosecutor, we were concerned that some of those same concerns 
that I saw in prosecuting those cases would be funneled in and 
try to victimize this program. So not only the recommendations 
reflect my own experiences but also those of mortgage fraud 
experts at the FBI.
    Similarly, our recommendations concerning the Private-
Public Investment Program. And, as noted, we have some grave 
concerns about the structure of these programs if certain very 
serious steps are not taken to address the high potential for 
fraud, whether it is conflicts of interest, price collusion, 
price fixing, money laundering, and other dangers that are 
potentially present in these programs.
    I was happy to see, though, that last night Treasury did 
announce adoption of one of our recommendations involving asset 
management. We have long been pushing for Treasury to take 
steps to value this vast portfolio of assets that they manage 
on behalf of the taxpayers, who, of course, are the investors 
in this program; and yesterday they did adopt that 
recommendation by hiring three asset managers. We were 
encouraged to see that.
    And, obviously, it is so important now that Treasury is 
going to be actually liquidating some of the assets, including 
the warrants that were required in the capital purchase 
program.
    As I noted before, it is an honor and privilege to appear 
before you today to deliver my quarterly report to this 
committee; and I look forward to answering any questions that 
you may have. Thank you.
    Chair Maloney. Thank you very much for your testimony.
    [The statement of Neil Barofsky appears in the Submissions 
for the Record on page 42.]
    Chair Maloney. In your report, you express concern that the 
new PPIP is, and I quote, ``inherently vulnerable to fraud, 
waste, and abuse due to conflicts of interest among fund 
managers, the opportunities for collusion in the procedures, 
and money laundering opportunities.'' The report proposes a 
series of conflict of interest rules and disclosures and 
investor screening comparable to ``Know Your Customer'' 
requirements to guard against these risks.
    Can you explain the dangers you envision in more detail?
    Mr. Barofsky. If I may, if I can give you an example, I 
think it might be the best way to provide some detail to this. 
For conflicts of interest, for example, basically--I am going 
to use the legacy securities program as an example. This is 
where--the program where $1 of private investment is going to 
be raised by a fund manager, and it is going to be matched with 
a dollar from Treasury of equity and then $2 of lending. So the 
$1 is going to turn into $4 of buying power. And of course it 
is not going to be $1. It is going to be $1 billion or $2 
billion. But it is going to be 75 percent taxpayer money at 
risk.
    And the way the conflict of interest could work is that the 
funds that are going to qualify for this by their very 
definition, by the nature of the prerequisites, will likely 
either have for themselves or be managing vast portfolio of the 
same very toxic assets they are going to go out and be out and 
purchasing. And the design of the program is that the fund 
managers in essence set the new price for these securities.
    The theory behind the PPIP is that these markets are broken 
and that the prices that currently exist in the market are 
depressed, are much lower than they would be if the market was 
functioning and normal. And the idea behind the PPIP is that 
putting government money to help restart the market and help 
price it at what would be more accurate. So a lot of discretion 
and, frankly, economic power is going to be given to this small 
number of fund managers.
    Now, the conflict of interest comes into play. What if that 
fund manager has on its books or managing for other clients 
from which it derives fees the exact same mortgage-backed 
security that it is going to go out and buy at a higher price?
    An example we use in the report, if--let's say there is one 
that is currently at 20 because the market is depressed, and 
the fund manager thinks, well, it is probably worth about 30. 
Normally, without a conflict of interest, it would go out and 
buy that security from others up to the price of 30. But if the 
fund manager realizes that it could set the price and set that 
price at what it feels or wants to do, it could set that price 
at 50 and start buying at 50. Obviously, the sellers would be 
more than willing to take 50 for an asset that is only worth 
30.
    Now, at the same time, the asset manager then can sell off 
what he or she has on their books and records that they value 
at 20, think it could be worth up to 30. They can unload it at 
50, making a huge profit.
    So what happens at the end of this scenario? The fund 
manager makes a huge profit, the seller of the toxic asset 
makes a huge profit, but eventually that price drops down to 
what its market level would be, to 30. And who is left holding 
the bag? The taxpayer.
    So that is a really simplified example of how conflict of 
interest could come into play and hurt the taxpayer without the 
right types of protections.
    Chair Maloney. Could you elaborate more on steps that we 
could take to prevent these type of risks to taxpayer dollars?
    Mr. Barofsky. I think the two areas that are going to be 
essential is, one, we have to have very, very strict conflict-
of-interest rules. Now, there is a wide array of possible 
solutions. One is that the entity not be able to enter into 
transactions for securities that it has on its own books and 
records. Now, this may be inherently very, very difficult, if 
not impossible, the way the program is currently structured, 
but that would be a way of limiting this conflict of interest.
    Alternatively, there has to be very, very strict walls, we 
believe, so that whoever is making these decisions for the fund 
manager isn't providing information to other parts of the 
company and isn't receiving information from other parts of the 
company. So in a way to put that manager in a black box so that 
their decisions are independent of what impact those decisions 
may have for the benefit of the rest of the company.
    Another key area is, obviously, transparency; and our 
recommendations continue to push for more and more transparency 
throughout the TARP. But in this area we think it is crucial. 
Again, not just for the point of transparency, for the sake 
that, obviously, this Congress and the American people need to 
know what is going on with their investments, but as a fraud 
protection. We need to know every detail of every transaction 
that is going on in these funds the taxpayers are a part of, 
and that should be publicly reported so all the investors can 
see. And by investors I mean taxpayers can see what is going 
on.
    But we also need to access and be able to see what else is 
going on in the company. So my office and Treasury, as part of 
its compliance function, has to be provided all information 
about transactions managed or for that fund manager's books in 
the securities and similar securities so that we can track and 
see if that fund manager is making decisions not for the 
benefit of the taxpayer but the benefit of itself or other 
clients that it has.
    Those are some of the types of recommendations we include 
in our report.
    Chair Maloney. Thank you.
    My time is expired. Mr. Brady for 5 minutes.
    Representative Brady. Thank you.
    I applaud your approach on being proactive on the fraud 
area and prevention and also on focus on transparency within 
the program. Both are clearly needed.
    On page 147 of the report, you talk about the areas of 
vulnerability under the new Public-Private Investment Program; 
and you talk about, as the chairman said, conflicts of 
interest, collusion, and the potential for money laundering, 
which our U.S. leaders have rightly focused in the G-20 and in 
the OECD on trying to stop these activities around the world. 
So my question is: Has the Treasury adopted all of your 
recommendations to protect taxpayer interest related to the new 
Public-Private Investment Program?
    Mr. Barofsky. They have not yet. We had a meeting with them 
earlier this week where we discussed in detail a lot of our 
recommendations. They have indicated that a lot of them are 
under consideration, but they have not yet adopted them.
    Representative Brady. Have they given you a time line for 
adopting them or indicated that they will adopt some, many, 
most, all?
    Mr. Barofsky. They have not. The people that we were 
speaking to were sort of the engineers and mechanics of the 
program, and they were extremely receptive of our 
recommendations. They thought that they made sense. They raised 
significant concerns. But, ultimately, those are decisions that 
are made by the policymakers. And they have not communicated to 
us, one, where they are leaning as far as our recommendations 
or, two, providing us with a time line.
    Representative Brady. So Secretary Geithner has not 
announced publicly or privately whether he is going to adopt 
these recommendations.
    Mr. Barofsky. No, he has not.
    Representative Brady. You make the same, commonsense 
recommendations in dealing with the TARP, simply asking that 
the recipients account for the use of the money and set up 
internal controls so we can continue to track it. I think that 
is a desire of every Member of Congress and the public as well. 
Has Treasury adopted these recommendations? And, if not, why?
    Representative Barofsky. They have not, other than in the 
last administration when the--in the targeted investment 
program investments of Citi and B of A. That is the only time 
it was adopted.
    As to the why not, it is really for Treasury to answer. 
What I have been told on various times by Mr. Kashkari is that 
they believe that, because of the inherent fungibility of 
money, that it is not a positive use of resources, that it 
would be a waste of time possibly, that it is very difficult to 
track and other explanations.
    I believe the results of our survey disprove those 
suggestions. But as I spoke to Mr. Kashkari I think last week 
or the week before, he told me that he has raised our concerns 
to the Secretary as well as to Chairman Bernanke and that they 
continue to agree that this requirement not be imposed.
    Representative Brady. I just think stonewalling on this 
issue of transparency really undermines public support and 
confidence in the program. One of the goals of it is to restore 
public investor confidence in the system.
    Can I ask a final question? But in your report you raise 
issues about using the dollars that have been set aside for the 
Term Asset-Backed Securities Loan Facility, TALF, basically 
focused at consumer loans and using that to finance the Public-
Private Investment Program. You suggest it really undermines 
TALF's stated purpose of trying to deal with creditworthy 
consumers and small business. Can you elaborate on that?
    Mr. Barofsky. There are a number of concerns that we had in 
the expansion of the TALF. The program was designed for a 
certain purpose, as you noted; and that purpose was inherent in 
the fraud and credit loss protections of the program.
    Applying that to legacy assets, these toxic mortgage-backed 
securities, those protections don't really work. That is why we 
previously made the recommendation to tread very carefully, and 
what we are encouraging Congress to do is really rethink those 
protections.
    We have had discussions with the Federal Reserve as well as 
with Treasury; and they have indicated that they are going to 
be adopting our recommendations, at least to the extent that 
they are not going to at least be dropping the legacy mortgage-
backed securities right into the program. They are going to 
do--in response to our recommendations, they have indicated 
that they are going to do security-by-security analysis and 
also indicated that they may adopt our recommendation that 
certain types of mortgage-backed securities are just off the 
table. And those would be things--these securities that we know 
have been just riddled with fraud, the liar loans, the stated 
loans with no underwriting whatsoever, those types of things.
    So we are going to continue to push for those 
recommendations to be adopted.
    Representative Brady. Well, I just hope that Treasury 
understands that if they don't adopt your recommendations this 
Congress may well direct them to do.
    So, Madam Chairman, thank you.
    Chair Maloney. Thank you so much.
    The gentleman's time is expired.
    Congresswoman Sanchez for 5 minutes.
    Representative Sanchez. Thank you, Madam Chair; and thank 
you, Mr. Barofsky, for being before us.
    I used to work in the securities industry. I used to be one 
of those people that put together financial deals. So my 
question goes to something that you were talking about earlier, 
that conflict of interest that is occuring.
    Now, at least when I used to work in the investment banking 
industry, when we would sell securities, whatever type they 
were, we would make a syndicated group, spreading the risk over 
everybody on the street, including people who had desks like 
Bank of America and your typical commercial banks. So my 
question is, doesn't everybody have some part of these assets, 
and it would be very--for anybody to think that they don't have 
any of these funds within their portfolio?
    Mr. Barofsky. That is one of the problems with the conflict 
of interest; and that is one of the problems ultimately in the 
design of the program unless very, very strict conflict of 
interest rules are put into place and the right types of walls. 
Because, unlike most times when a deal is being syndicated 
here, by design the fund manager who is going to be using the 
government assets is going to be setting a brand new price.
    Representative Sanchez. He is setting a price on what he 
has got already in his portfolio. I mean, it would be highly 
unlikely, in particular with these large mortgage-backed loans 
which include so many different pieces of mortgages, that he 
wouldn't have something in his portfolio with respect to that.
    Mr. Barofsky. That is a huge danger in the program. It is 
unlike anything we have seen.
    I mean, if this program didn't exist with the government 
sanction and one party was--a private party in normal 
circumstances was setting the price for an asset that was on 
its books and records, one might suggest that that would be 
manipulation. Here, this is what the whole point of the program 
is to get these prices up. So it is why we really strongly 
believe these protections must be in place.
    Representative Sanchez. I basically see the taxpayers 
paying going in and the taxpayers paying coming out, too. I 
mean, it is a very difficult thing to adjust to.
    I have a question about what Secretary Geithner said 
yesterday in his testimony. He talked about there being an 
availability of about $135 billion left in the TARP funds. It 
showed your figure of $109.5 billion, but he also said that $25 
billion of that would be from the monies that the banks are 
paying back by the end of the year.
    Now, when we did this TARP program--by the way, I didn't 
vote for it, because I saw a lot of these problems inherent in 
it--we said that we wanted the taxpayers to be paid back. So 
now we have Secretary Geithner saying, well, when these monies 
are paid back it is like a revolving fund, and we are going to 
be putting them back out again. Is that your interpretation of 
the program or do you think it was a one-time appropriation?
    Mr. Barofsky. I think the legal analysis that I have seen--
and I have seen it from Treasury as well as--from what has been 
described to me by Treasury as well as by GAO--is that for the 
principal amounts, if those come back, the Treasury has the 
ability to keep $700 billion out up and through the end of this 
year. That is when, under the legislation, when that authority 
sunsets unless it is expanded. For any of the interest 
payments, the profits, any of those types of things, that 
doesn't go back into the kitty. That actually goes directly to 
pay down the debt.
    But that is my understanding of the legal construct, that 
money that is paid back of principal can be reused by Treasury 
as part of the TARP, at least until the end of the year.
    Representative Sanchez. Now, I have been reading in the 
paper about how some of these banks want to pay back the money; 
and the insinuation has been that they want to be able to pay 
their directors and their executives at compensation levels 
above the amounts that congress passed recently. Why do you 
think that some of these banks are so anxious to pay back those 
monies?
    Mr. Barofsky. I have been reading the same articles as you 
have; and I think that is certainly one of the concerns, I 
think, for a lot of financial institutions, increased 
oversight. I think from what I read there is a fear that terms 
and conditions may change on them.
    I don't want to presume to get inside the mind of the chief 
executives of these financial institutions, but I certainly 
think that executive compensation restrictions must weigh on 
their decision making.
    Representative Sanchez. And, lastly, I have some people who 
have said that the next problem with respect to mortgages will 
come in the commercial mortgage industry and that one of the 
reasons the banks are holding onto these monies is that they 
want to be able to have the reserves in place for some of the 
losses that they expect in the commercial field. Do you have 
any comment on that?
    Mr. Barofsky. Well, I think we have seen--and, again, our 
ultimate--or I should say our initial report on the use of 
funds survey that we had is going to come out now within the 
next 2 months. But I obviously have looked through about 
probably about 100 of the responses; and one of the things that 
we do see is that financial institutions are preserving the 
TARP money as a cushion for future losses. Whether it is 
commercial mortgage-backed security or the residential 
mortgage-backed security or just further deepening of the 
recession, that is something that we have seen.
    Representative Sanchez. Thank you.
    Thank you, Madam Chair.
    Chair Maloney. The gentlelady's time has expired. 
Congressman Burgess for 5 minutes.
    Representative Burgess. Thank you, Madam Chair; and thank 
you for being here today.
    Madam Chair, I might ask unanimous consent that my opening 
statement be inserted into the record.
    [The prepared statement of Representative Burgess appears 
in the Submissions for the Record on page 55.]
    Representative Burgess. Now, the report that we have, 
almost 20 criminal investigations under way in connection with 
the TARP facility for the financial sector; and the report said 
these investigations involve possible public corruption, 
corporate stock and tax fraud, insider trading and mortgage 
fraud. To the extent that you can do so in front of the 
committee today, can you provide us more background information 
in some specific detail surrounding those criminal 
investigations and what we might expect to see going forward?
    Mr. Barofsky. Well, as I noted before, one of them was 
Gordon Grigg, who was formally charged in an information in the 
Middle District of Tennessee yesterday on eight counts of mail 
fraud and wire fraud involving defrauding individual investors 
by lying and saying that he had connections with the TARP 
program, was selling TARP-backed securities. That is an example 
of one of the smaller investigations we have ongoing.
    We have previously discussed that we have an ongoing 
inquiry into Bank of America and Merrill Lynch and the 
circumstances that surrounded its end-of-the-year bonus 
payments.
    Although I can't comment on any detail of our other pending 
investigations, they do include the categories of cases that 
you have.
    And just by way of an example of a type of potential 
investigation, in the securities fraud let's say a financial 
institution applied for TARP funds but was cooking its books. 
In other words, its financial statements were off. They were 
manipulated or its ratios were distorted, and they did so to 
get TARP money or to get more TARP money. That would be a very 
good example of the type of investigation that we are going to 
be conducting.
    Representative Burgess. Let me--and as a consequence of 
your quarterly report to this committee, we will be informed of 
those investigations as they come to conclusions and the 
results of those?
    Mr. Barofsky. Absolutely.
    Representative Burgess. Let me ask you--and I hate it when 
people do this to me--but you gave an example, so can I walk 
through a hypothetical example with you of the public-private 
investment partnership that we are hearing so much about? And I 
think you stated in your testimony that part of the oversight 
function is making recommendations. So I will offer this as 
something you might consider for a recommendation.
    You also made the point that collusion and money 
laundering, and it was important to know your customer. So 
perhaps we ought to choose our customers more wisely. And much 
of this debt we are passing off to our children and 
grandchildren, so actually not original with me.
    American solutions, the American Enterprise Institute have 
suggested that perhaps we make a TARP fund for students, if you 
will. So that the FDIC providing the debt-to-equity funding at 
a ratio 6 to 1, Treasury providing 50 percent of the equity 
financing, and the investor is left with 7 percent of the 
initial cost.
    An example has been given if two students near graduation 
have $70,000 in loans to pay off that they sell their loans to 
each other. And each could then put down a down payment of 
$10,000, which will be borne half by the student and half by 
the TARP funding, and the remaining $60,000 will be guaranteed 
by the Federal Deposit Insurance Corporation. The result would 
be that they would have their student loans reduced 
significantly to a liability of $5,000; and in the end they 
could walk away from the $70,000 debt with that $5,000, leaving 
the government, or the taxpayer, on the hook for covering it.
    I will admit that is a novel approach. What would you think 
of such a scenario?
    Mr. Barofsky. I think I may have a conflict of interest 
since I am still carrying law school debt, and I would like to 
participate in that program, so it might be unfair for me to 
comment on that.
    Representative Burgess. And this is tongue in cheek, but 
this is what our constituents are telling us. This is what they 
are feeling. This program, it almost defies gravity the way it 
is being approached. You have people back home asking where is 
my bailout or where is my Treasury-backed security or where is 
my funding or where is my bailout on my student loan? It just 
underscores the enormity of the task that is in front of us and 
certainly in front of you.
    I think we are very fortunate to have someone of your 
caliber who is on top of this and certainly am grateful for the 
time that you have given us this morning. I wish you every 
success in bringing these cases forward and bringing them to 
light and then successful prosecutions where those are 
necessary.
    I thank you, Madam Chair. I yield back the balance of my 
time.
    Chair Maloney. I thank the gentleman.
    And in order of appearance to the committee the Chair now 
yields 5 minutes to Representative Snyder.
    Representative Snyder. Thank you, Madam Chair.
    Good morning. I wanted to ask, in terms of your approach, 
should there be a different approach in terms of some of the 
requirements you have talked about--I don't remember the 
details of some of your suggestions--between those institutions 
that clearly at the beginning of this 6, 8, 10 months ago were 
institutions in trouble versus those banks--90 percent or so of 
banks or other financial institutions that are not in trouble, 
that are still making a living, versus those that are clearly 
somewhat of a criminal enterprise, should your approach, should 
the approach of the Treasury Department be different as we 
approach those three different entities?
    Mr. Barofsky. Well, I think it depends on the program. I 
think within any particular program all institutions should be 
treated fairly and equally. Obviously, anything that approaches 
a criminal enterprise should be treated very differently. We 
will seek to have those individuals responsible for that put in 
jail, which will be a much different approach. But I think 
that----
    Representative Snyder. How about with regard to your 
requirement of how--the specific transparency with regard to 
the use of TARP funds? Should it be the same whether an 
institution has been in trouble, or it is one that we are 
actually encouraging to take money in order to improve the 
credit market?
    Mr. Barofsky. Our recommendation is across the board on 
that. We think that any TARP recipient should be required to 
report on its use of funds.
    Representative Snyder. I interrupted you. So, basically, it 
will take out the criminal enterprise there. In fact, those 
institutions that were not in trouble at the beginning of this 
program and still aren't, ones that we have been somewhat 
encouraged to take funds and participate because we want these 
funds to get out to the American public as part of the credit 
market, you are saying in another program they should be 
treated differently than those institutions that were in 
trouble.
    Mr. Barofsky. I think that, with respect to use of funds, 
certainly any institution, regardless of its health, if they 
are taking 10, 15, 20, $25 billion of taxpayer funds and 
getting the benefit of those funds, they should be required to 
let us know how they are using it.
    I think as far as other conditions or more stringent 
conditions that are put on the terms of the funds, I think the 
Treasury has adopted different approaches for those financial 
institutions. The terms and conditions for Citi and Bank of 
America are more stringent than that on Goldman Sachs; and I 
think that that is reflective of the different types of 
investment, the higher risks of those investments.
    Representative Snyder. You mentioned specific dollar 
amounts. Is your recommendation that beyond a certain level--
you said $10 billion, $20 billion. I thought your 
recommendation was any level of TARP funds should be declared, 
the use of the funds should be declared. Am I wrong on that?
    Mr. Barofsky. No, no. Absolutely, that is the case.
    I was just using that as an example, that whether they are 
healthy or not healthy, because of the volume of money, and 
some of the banks that received the most have been most public 
about their intention to pay back the funds. That is why I was 
using those numbers. But I think in those cases it is all the 
more important. We believe that every financial institution--it 
should just be a basic condition of taking government 
assistance.
    Representative Snyder. We use the phrase ``bailout funds'' 
a lot, and then you just used the phrase ``government 
assistance''. I am trying to put myself in the position of the 
community bankers out there--we all have some of these in our 
district--that they are actually doing well. At least they are 
in Arkansas. They are trying to weather this thing reasonably 
well. They are not in trouble.
    I think their view is that they thought they were--
initially, early on--kind of helping things out. It was a 
chance for them to make some money. It was a chance for them to 
make some more loans, at the same time expand the credit 
market. And yet we kind of come back to them. I think they feel 
like they are being treated as something different than what 
they initially thought.
    So--I don't know--is it fair to call it assistance? They 
probably would look on it as a chance to try to help to get the 
American economy moving again.
    I want to ask, you were dismissing, though, the fungibility 
argument. If I was somebody who was going to declare how I was 
going to use these funds and money is fungible, I would take 
that money in. And you have given some examples. I think you 
think most folks can say exactly how they use that money, but 
if I am a banker that has got 10 projects and I think if I 
bring in this sum of money that will enable me to do 8 or 9 of 
those projects versus 6 or 7, wouldn't I just cherry-pick and 
pick the nicest looking one to declare that is how I am using 
my TARP funds? How do you get around that?
    Mr. Barofsky. Well, to be clear, there is no question that 
money is fungible. We are not suggesting otherwise. I think 
when--we heard this in similar arguments when we were first 
announcing our survey. When we did our survey, we asked the 
banks not just the blanket question of how did you use the 
money. We asked them to make specific reference to issues like 
how do you plan to use the money. Our belief is that most 
financial institutions, responsible financial institutions, 
have budgets and plans; and when they are acquiring a large and 
significant amount of capital they make a plan.
    So in your example you may say, okay, we have these nine 
projects on the shelf. We are going to do these six. And then 
there is going to be some internal planning--e-mails internal 
memoranda, formal budgets--that it is going to say, well, if we 
get this money, we are going to also be able to do these other 
three that have been sitting on the shelf.
    If they then, in fact, do those other three, 
notwithstanding the unarguable fungibility of money, you can 
track that use of funds because those are three projects that 
wouldn't have gotten done other than the infusion of government 
capital.
    And I do agree with your comment before. Assistance is 
another word. It is one of the words that is used in the 
statute, which is probably why I use it, but for a lot of these 
it is just an investment from the government. So I don't in any 
way argue with your other characterization.
    Representative Snyder. One final comment, please. Of eight 
or nine projects there and you are going to have them declare 
the one that you say this is the TARP funds. Now that we are an 
investor in that bank, the taxpayer investment, we want all 
six, eight, nine, ten of those projects to work well, do we 
not?
    Mr. Barofsky. We certainly are hopeful that the banks 
perform well so they can repay the money.
    Representative Snyder. Thank you.
    Chair Maloney. Thank you.
    Senator Casey for 5 minutes.
    Senator Casey. Thank you very much, Madam Chair; and I want 
to thank you for inviting the Senators to come over to this 
side of the Capitol. We are grateful to be here. We don't get 
over here enough.
    Sir, thank you for your service to the country and for your 
prior service as a prosecutor. I think it is important to 
reiterate the real cornerstone or foundation of your work in 
this capacity.
    I was an elected state auditor, and in that capacity the 
foundation of the work that I was charged with doing--and I 
think it is very similar to what you are doing and what you 
have worked hard at doing--is that you have to be independent. 
No matter who the President is, no matter who is in Congress, 
no matter who is in the administration, you have to maintain 
that independence; and I appreciate and commend the work that 
you have done already. You need to have that kind of 
independence and objectivity as you pursue these difficult 
issues.
    Our job here is not just to talk about or react to your 
reports. Our job is to make sure that you have all the 
resources that you need. Whether it is money or personnel, 
whatever it takes, we have to make sure that you have those 
resources.
    So the first question I have is in terms of personnel. I 
know in the midst of a tough economy, people don't like to talk 
about hiring more people but I am a great believer that the 
human resources you have is commensurate with the result you 
get, especially as a prosecutor or an investor or an auditor. 
So the first question I have is, do you have the resources you 
need in terms of personnel, in terms of technology and other 
resources to do the job you have to do?
    Mr. Barofsky. We currently have 37 people on staff. We are 
building to 150 is what our target is for us to be efficient, 
not too big, not too small, to be able to do this task that is 
assigned to us.
    This Congress unanimously passed, both Houses, a bill that 
is going to give us some enhanced hiring flexibility. I look 
forward to that hopefully being signed this week, and that is 
going to help us as we build towards that goal.
    We have a pending request to OPM, the Office of Personnel 
Management at the White House, to give us some other 
flexibilities, some direct hire flexibilities; and I am 
confident if we get those flexibilities we are going to be able 
to build and get the right people to make sure that we can 
carry out this task.
    As far as resources is concerned, the original bill 
provided us with $50 million. We think that is certainly going 
to get us through this year and through a good chunk of next 
year. We are, obviously, since we are going to be around for 
more than 2 years--I think that is inevitable--we are going to 
need additional resources. I know that there is a pending 
amendment in the Senate on a bill that I think Senator Boxer is 
going to introduce this morning which would give us some 
additional funding which I think would certainly take us 
through fiscal year 2010; and when we run short we will be back 
and let you know for sure.
    Senator Casey. Great. One last question. When I look at 
what was set forth in the Emergency Economic Stabilization 
Act--an act that I voted for, because I thought it was the 
right thing to do, but we have to make sure that act works--the 
underlying purpose, as set forth there, talks about protecting 
home values and college funds and retirement accounts and life 
savings. That is number one. Number two is preserving 
homeownership and promoting jobs. Number three, promoting 
overall returns to the taxpayers. Finally, provides public 
accountability.
    We all understand from our States and districts across the 
country, when people call in, they are frustrated on two 
levels. First, they see layer upon layer of legislation and 
public initiative, and they don't see the results. They don't 
think that credit is flowing, and they don't see any 
significant positive effect on their lives. That is one area of 
frustration.
    The other area is lack of accountability. I know that you 
talked at length before and I don't want to reiterate it, but I 
want to get your sense of why this is happening. When you said 
to Treasury that you thought there should be some--with regard 
to the 364 institutions--that there should be some 
accountability as to how they are spending the dollars, which 
you continue to reassert or reiterate that recommendation to 
Treasury, that they should require all TARP recipients to 
report on the use of the funds. Please tell us again and 
articulate for us, what argument does Treasury use pursuant to 
your recommendation or in response to your recommendation as to 
why they should not do that?
    Mr. Barofsky. Although I am reluctant to speak for 
Treasury, what I have heard is arguments because of the 
fungibility of money, that it is impractical or impossible to 
require banks to report on the use of funds. It could be a 
waste of time or resources, and just a fundamental disagreement 
with why it would be important for us to do so.
    Senator Casey. That makes no sense to me and I know it 
makes no sense to you. So I am glad you pursued this 
information on your own and got the information on your own 
initiative.
    I am over my time. Thank you very much.
    Chair Maloney. Thank you. Congressman Hinchey has yielded 
his time to Senator Klobuchar due to her time constraints. The 
Chair recognizes the good Senator for 5 minutes.
    Senator Klobuchar. Thank you very much. Thank you, 
Congressman Hinchey. Who says that the House and Senate can't 
work together?
    It is good to see you again, Mr. Barofsky. We had a hearing 
in front of the Judiciary and I thought that I learned 
everything that I needed to know about you. Now I know you 
still have student loans. I will tell you, when I met my 
husband, he had $50,000 in student loans but I married him 
anyway. Hopefully you are doing fine.
    I have to get back to the Senate on the Fraud Enforcement 
Recovery Act which I know you support. It is very important to 
add some funds to help you out. You talked to Senator Casey 
about your goal of reaching that 150 employees. When do you 
think you will reach that goal?
    Mr. Barofsky. A lot of that depends on once we have all of 
our hiring authority and we get this direct hire authority from 
OPM. We are building to that. I would love to have it by the 
end of this year. That is our goal.
    Senator Klobuchar. Because you and I discussed the kind of 
perfect storm that the Justice Department is facing, and you 
are facing. With more money going out there, it means more 
potential for fraud and corruption. We also have the issue of 
more white collar crime that is either starting up, or actually 
has been going on, as in the case of Bernie Madoff for years, 
that it is being discovered because of the tough economic 
times.
    Along the line of Bernie Madoff, which I know we talked 
about in the Judiciary Committee, how that tip had come in and 
was disregarded from a whistle-blower. And I know that you and 
the Justice Department are very focused on doing a better job 
of handling these whistle-blower tips. I will give you a little 
pitch here, 877-SIG-2009; is that correct?
    Mr. Barofsky. Thank you. That is correct.
    Senator Klobuchar. I have read since the Judiciary 
Committee hearing, you have had hundreds of tips come in. The 
argument before was it is just too hard. There are too many 
tips; we can't figure them out. What triage process are you 
going through, and how is that working?
    Mr. Barofsky. From day one--and I have to credit my chief 
of investigations--from the day I hired him, he was pushing the 
importance of a hotline. He always thought it was going to be 
one of the most important functions of his investigative 
division.
    One of the things we did is we hired a very capable 
attorney from another IG's office, attorney investigator, and 
someone fairly senior. We put her in charge of the hotline. So 
we put one of our best people that we have, and we gave this 
important responsibility to her. And we are supplying her with 
the right support.
    We are not a large office yet. We are not even close to our 
capacity, but we made sure that we have the necessary resources 
and support so that she can follow up and the people working 
under her can follow up on every single inquiry. We take 
everyone seriously.
    As I noted before, a third of our current criminal 
investigations are resulting from that hotline.
    Senator Klobuchar. Unbelievable.
    Mr. Barofsky. It is a wonderful source.
    I also think for victims as well as whistle-blowers, as 
sort of another benefit, it gives people an opportunity to vent 
sometimes.
    Senator Klobuchar. I wouldn't advertise it that way. We 
know what it is like when people call to vent. It is a way for 
people to talk to you and get their ideas known.
    Mr. Barofsky. Sometimes we get good ideas. For example, the 
hotline number was my office number. I would just pick it up.
    Senator Klobuchar. I like that hands-on approach.
    Mr. Barofsky. But one of the calls that I received was from 
a gentleman who was very upset who lived up in Massachusetts. 
It was the time Citi had announced that they were going to be 
paying $50 million for a new plane. One of the things he said 
was, I am so tired, how come these banks are saying that they 
can't account for how they are using the money, but they can 
say with 100 percent certainty that $50 million did not come 
from TARP funds?
    It is a good argument. It helped inspire us to move towards 
our use of funds survey.
    Senator Klobuchar. To end with that, the use of the funds, 
and you talked about how it is on the Web site now and people 
can trace it. And for people who don't have the time to go on, 
what is your Web site?
    Mr. Barofsky. www.SIGTARP.gov.
    Senator Klobuchar. That is for the tips.
    And then www.financialstability.gov.
    Mr. Barofsky. That is not ours. That is Treasury's Web 
site.
    Senator Klobuchar. So for people who don't have the time to 
wade through all of that, what is your summary of where this 
money is being spent, so the American people know it is not all 
of these bonuses and the scandals. Where is the money being 
spent?
    Mr. Barofsky. It is a little early for us to be able to 
report on our survey results. We expect to have something out 
there in hopefully early to middle June, which will give that 
information.
    The Treasury Web site, as you noted, does track what the 
banks are reporting on their lending activities, as their 
lending goes up and down, sort of the impact of the TARP funds.
    And, of course, if anyone wants to learn more about our 
problems, going to our Web site and pulling down the reports 
page brings up a copy of our reports. One of the things we try 
to do with these reports, the taxpayers, who are the investors 
in all these programs, we try to write them in Main Street 
terms so they can understand and see what is going on with 
their money.
    Senator Klobuchar. Will it show a specific project that the 
money is being lended to and things like that?
    Mr. Barofsky. Not on our Web site, no.
    Senator Klobuchar. Where will they be able to find that 
out? Is that on the Treasury Web site? Or does it just show 
that it is going to lending?
    Mr. Barofsky. The only monitoring that Treasury is doing is 
requiring them to report on what their lending levels are at 
certain categories and whether they go up or down from month to 
month. But it doesn't have anything to do with tracking the use 
of TARP funds.
    Senator Klobuchar. But it shows lending versus, say, 
bonuses?
    Mr. Barofsky. It just says lending.
    Senator Klobuchar. Thank you.
    Chair Maloney. Congressman Hinchey is recognized for 5 
minutes.
    Representative Hinchey. Thank you, Madam Chairman, for 
doing this hearing.
    Mr. Barofsky, I want to express to you my deep 
appreciation. I think it was a very wise move to bring you into 
this area of responsibility. I think you are doing a very good 
job, and I think all of us who focus on this really appreciate 
what you are doing.
    At the same time that we appreciate what you are doing, we 
recognize the complexity of the job that you have and how 
complex and how difficult it can be, particularly when you are 
not getting the cooperation of people that you really have to 
work with in order to come up with the recommendations and the 
facts that you have the responsibility to deliver.
    Your use of the word ``fraud'' in the context of your 
presentation this morning I think was very, very appropriate. 
Fraud is just so relevant in this particular set of 
circumstances from the very beginning. The situation we are 
dealing with is fraudulent investments that were put together 
by a number of operations, like AIG, for example, and a whole 
host of others. There were fraudulent investments that drew 
money out of the people who invested so they could make money 
for themselves. They knew what they were doing, and they did it 
purposely and intentionally. There is no question about it.
    So what you are doing now to look into this situation with 
regard to the TARP funding--which was a bailout bill for some 
of the institutions that were engaged in that fraudulent 
practice from the beginning, and which was presented to us by 
former Secretary of the Treasury Paulson in a way that was 
guaranteed not to give any real analysis of the situation, any 
real facts--and, unfortunately, it was ultimately passed by 
this Congress without those kinds of contexts as well.
    Subsequently, the House of Representatives passed 
legislation which would require the Treasury Department to get 
these kinds of facts and put the information out there. But, 
unfortunately, that bill was not passed by the Senate. I think 
that is just another example of the very effective political 
influence that is going on by a lot of these banking 
institutions and others, and also the political influence that 
is going on by people involved in the political process here in 
our government.
    So what you are doing is very, very critical and important. 
The problem is how are we going to deal with it more 
effectively? What are we supposed to be doing? What can we do 
to help you? What can we do to strengthen your ability to get 
the facts that you want to get and which we need so badly?
    Mr. Barofsky. I think right now, particularly with the 
recent Special Inspector General Act of 2009, it really gives 
us a lot of arrows in our quiver. I think we have the necessary 
tools to do our job. Ultimately, of course, our recommendations 
are just that; they are recommendations, and Treasury is not 
compelled to adopt them.
    Representative Hinchey. But that is the problem, isn't it? 
You are making recommendations. The recommendations that you 
are making are solid, secure, and very, very positive. They 
should be followed through. But the problem that we are seeing 
is that these recommendations are not being adhered to.
    Mr. Barofsky. In some circumstances, that is true. Some are 
being followed, which is the good news. But ultimately, 
recommendations are just that--recommendations.
    I mean, I think in the new act there is a requirement that 
the Secretary certify to Congress where he fails to adopt a 
recommendation that addresses a deficiency. To that extent once 
that act becomes law, there will be some very direct 
accountability for those circumstances.
    Representative Hinchey. That is right, if that does become 
law. That is what has to happen. But in the meantime, we are 
struggling to get this situation to be dealt with in a more 
effective way, and there is obvious opposition to that.
    Can you tell us at this point, what are the positive 
aspects that you have seen? What are the things that you have 
seen that give you some hope that this is going to develop in a 
more positive way?
    Mr. Barofsky. First of all, I would say that one of the 
things that we are seeing from our initial returns of the use 
of funds survey is that this injection of capital for a lot of 
banks, particularly the smaller community banks, at least as 
they are reporting to us, did go out to increase lending. They 
were able to leverage the money and use it to increase lending, 
especially the smaller community bank levels.
    I think a lot of these programs, although we have some very 
large concern about the potential for fraud in them, a lot of 
these potentials can be addressed. And if Treasury does adopt 
these recommendations, these could very well be very good and 
viable and positive programs.
    On some of these issues, Treasury has been very receptive 
to our recommendations. They have not been implemented yet, but 
early indications are strong. I think there is hope. I 
certainly don't want to sound an alarm that all is lost. I 
think there is opportunity here to protect the taxpayer with 
these programs.
    Representative Hinchey. We are going to have to be directly 
involved with you to make sure that the positive circumstances 
that you are talking about actually come into play, actually 
become facts. I thank you very much.
    Mr. Barofsky. Thank you.
    Chair Maloney. Congressman Cummings for 5 minutes.
    Representative Cummings. Thank you, Madam Chairlady.
    I want to thank you, Mr. Barofsky, for your very quick 
response to my letter, along with 20 or so other Members of 
Congress, about the counterparties. I really appreciate you 
jumping on that so quickly.
    I just want to ask you what, if any, requirements has 
Treasury imposed upon the TARP recipients with regard to their 
need to increase lending to perform other acts in the public 
interest?
    Mr. Barofsky. None. The requirements in the capital 
purchase program--I assume that you are talking about the 
capital purchase program.
    Representative Cummings. That is right.
    Mr. Barofsky. There is no such requirement. The only 
requirements or restrictions on the use of funds have to do 
with what will be the statutorily enforced restrictions on 
executive compensation, as well as some redistributions on 
dividends and buying back of shares.
    Representative Cummings. Does that make your job more 
difficult?
    Mr. Barofsky. What makes my job more difficult is the 
failure to adopt the recommendations to have the financial 
institutions report on their use of funds. As additional 
conditions are imposed, it is obviously a lot easier to see how 
money is not being used if you are also requiring the 
institutions under the pain of a certification for which it 
would be a crime to lie on the report to us how they are using 
the funds. That would obviously make oversight easier.
    Representative Cummings. One of the problems that we face 
in this bailout is establishing metrics to measure the success 
of the various programs. I would like to ask about President 
Obama's Making Homes Affordable program. How much assistance 
has flowed to homeowners and servicers to facilitate mortgage 
modifications?
    Mr. Barofsky. It is just getting underway: $50 billion of 
TARP funds has been set aside; an additional $25 billion from 
HERA has been set aside. I think they have signed contracts now 
with servicers that would be up to about $13 billion. Money has 
not flown out yet under the mortgage modification program, but 
steps are in place.
    I should say, if I can go back to my other answer, our 
requirements in the Citi and Bank of America agreements is that 
they do implement mortgage modification plans. So that is an 
example outside of the capital purchase program where Treasury 
is compelling those institutions to do something for public 
good.
    Representative Cummings. I don't know if you are the 
appropriate person to ask this question of. How soon do you see 
that happening? One of the things that is happening in my 
district, we have a person who actually deals with 
foreclosures. That is all she does, trying to prevent 
foreclosures. It seems like the President's plan is out there, 
but the mortgage companies haven't caught up with it. Do you 
follow what I am saying? So in the meantime, people are falling 
through the floor. That is, they are being foreclosed upon. Do 
you have any idea of when you see that being in full operation?
    Mr. Barofsky. It should be going on now. Part of the 
mortgage modification plan under this agreement with the 
servicers is that before Federal money starts flowing in, they 
need to put the struggling homeowner on a 90-day trial period. 
During that trial period, the servicer is supposed to not 
foreclose on the property. During that trial period, the 
individual homeowner should be making payments only at the 
level of what the reduced mortgage would be once it is 
modified. So that type of relief should be happening now.
    One of the things that we are doing as part of our 
investigations is to make sure that that is what is happening; 
that the servicers are abiding by their rules, that they are 
not foreclosing. And we are working, obviously, with Treasury 
and their agents to make sure that happens.
    Representative Cummings. So if I have folks dealing with my 
constituents who are not doing what you just said, how should I 
address that? Send that information to you?
    Mr. Barofsky. Yes. The first thing they should do is 
contact their servicers. If they qualify, the servicers should 
be putting them into the modification plan. If they don't 
qualify, they should be directed to other forms of Federal 
assistance. If they are inside of a servicer, a program 
servicer agrees to modify the mortgage pursuant to President 
Obama's plan and they are still getting foreclosed upon or they 
are being charged a fee in a no-fee program, then they are the 
victims of fraud and they should contact our office.
    Representative Cummings. Finally, some have argued that 
even though the mortgage modifications may reduce interest 
rates for homeowners, the outstanding principal remains 
unchanged and homeowners tend to remain underwater. Without a 
change in refinancing criteria, the interest rate reductions 
may only be forestalling rather than preventing default. Do you 
think a change in the refinancing criteria is required?
    Mr. Barofsky. That is sort of a policy-level opinion. I 
would be reluctant to offer an opinion without doing a more 
comprehensive study.
    Representative Cummings. Thank you, Madam Chair.
    Chair Maloney. Thank you for your insightful questions.
    Mr. Barofsky, there have been suggestions that a 
significant number of CDOs were grounded in fraud or 
misrepresentations by the entities that were the sponsors of 
these transactions. As a consequence, the investors in the CDOs 
and in related credit default swaps have suffered substantial 
losses. Now taxpayer money is being used in essence to bail out 
the originators, investors, and counterparties to these 
transactions.
    What programs are being considered by your Department to 
recover taxpayer dollars from those persons and entities that 
engaged in fraud, misrepresentation, or other wrongdoing which 
induced investors and others to participate in fraudulent 
transactions for which the taxpayers are now footing the bill?
    Mr. Barofsky. We are going to be working closely with the 
Department of Justice. They of course have their civil 
enforcement as well as asset forfeiture abilities using the 
court system. We are forging a close relationship with the 
Department of Justice here in Washington, D.C., as well as in 
individual U.S. attorney's offices.
    When we find the type of contact that you are describing, 
we are going to work with the Department of Justice as our 
partner to try to reclaim that money.
    Chair Maloney. Have you found any of these cases? Have you 
initiated any cases such as this now in your Department as 
described?
    Mr. Barofsky. I don't want to comment on that too detailed 
because I am reluctant to discuss too much of the details of 
pending investigations.
    Chair Maloney. I think one of the problems is that there is 
a statute of limitations running. By the time you get around to 
it, the statute of limitations may have expired. Your comment 
on that?
    Mr. Barofsky. Our focus is going to be on reclaiming 
taxpayer funds on these transactions. On those we have 5 years 
from the date of investment at least. If there is any ongoing 
fraud that is occurring, that would extend that statute of 
limitations. So from a TARP perspective and recovering taxpayer 
funds, we do have some time to put these investigations 
together and to get the Department of Justice on board.
    Chair Maloney. I would like to share with you that we have 
come forward with legislation that would require the tracking 
of where the TARP moneys are going, giving you and government, 
the public, and others more information so that we can make 
better policy decisions in the future. I would like to give 
this legislation to you for your consideration and response 
back to the committee, if you have any further programs or 
ideas of how we could better track this money so we could have 
better policies going forward.
    Mr. Barofsky. I look forward to receiving it.
    Chair Maloney. My time has expired, and I will call on Mr. 
Brady.
    Representative Brady. Thank you, Madam Chairman.
    On page 148 of the report you focus on the potential for 
collusion within the Public-Private Investment Program. The 
scenario you lay out is two banks, both of which have a toxic 
loan of $100 million value in the marketplace, much less $60 
million. So basically they buy each other's toxic loan at a 
higher price net, put up a small amount of money, and Treasury 
matches that in equity. FDIC gives them a loan for $60 million, 
or really the value of itself. In that case, both banks book a 
profit on the sales and they have now transferred 92 percent of 
the risk to the taxpayer. Yet the toxic loans still stay within 
the system, which is great if you are at the bank or a 
shareholder, bad if you are the taxpayer who eventually ends up 
with the cost.
    What changes should be made in this bad loan program to 
prevent this type of thing? In your scenario you talk about 
kickbacks and more complicated collusion, and I am just using 
the simple example you used in your report. What changes need 
to be made to prevent things like that from occurring?
    Mr. Barofsky. The list is probably a lot longer than I will 
go through. Transparency, I keep coming back to that. It is 
vital for us to be able to mine the data for these 
institutions, to be able to keep track and look not just at the 
transactions that apply to that particular transaction, but to 
look at other transactions and similar transactions to see what 
is going on.
    Our ability to seek through some of these, look through 
some of the corporate shells to know who the players are so we 
can run through them through databases and see if there are bad 
players out there, players who have had prior regulatory 
problems. Try to identify the bad players, that is very 
important.
    Making sure that the funds are under strict KYC, and giving 
Treasury the ability to look through and run its own tests.
    Those are just some of the examples of where we can help 
deter as well as detect. And that is really an important part 
of it. If you increase transparency, not only does it make it 
easier to detect, but if the players know bright sunlight is 
shining down on them, it is a lot harder to do this type of 
collusion.
    And of course we are going to keep pushing our hotline. 
Insiders who know about this, who can tip us off, will also 
help us being able to detect those committing frauds.
    Representative Brady. Having now dug into the use of these 
dollars, the complex programs that have been morphed and welded 
together, and then your background prosecuting with credit-
debit swaps and complicated financial instruments, given the 
complexities, and how deep and wide this financial crisis was 
interwoven, do you think lawmakers up here really understand 
all of the intricate issues that created the point of our 
financial collapse?--I know that Mr. Burgess has introduced 
sort of a 9/11 Commission on the financial crisis so that we 
can sort of move away from the narrative and the spin and 
really go through and identify all of the complex decisions and 
financial models and everything that led to a global financial 
collapse.
    From your background, do you think it would be helpful to 
have that type of detail as we move forward on trying to 
prevent, as you are trying to from the bailout funds, to 
prevent this in the future?
    Mr. Barofsky. I think it is vital for us to understand how 
we got here. It is absolutely vital; otherwise we will repeat 
our prior mistakes. It is inevitable.
    One of the things that we try to do in the reports, as I 
mentioned before, is to at least unlock the riddle of what is 
currently happening with these 12 different programs and try to 
explain them in ways that the Members of Congress as well as 
the American public and the media can really understand what is 
going on now.
    But I think looking back and seeing how we got there, it 
would be vitally important for policymakers and lawmakers and 
the administration to get a good, comprehensive understanding 
of why we are here.
    Representative Brady. I do, too. I think it is important 
that we move away from the spin zone and get into the 
intricacies, and I think it would provide an independent view 
of how we go here and independent recommendations on how we 
stop it from occurring again.
    Thank you for the work that you are doing. Please let this 
committee and lawmakers know what other resources you need and 
how we can help. I think you are on the right track.
    Chair Maloney. Thank you. Mr. Hinchey.
    Representative Hinchey. There is a very interesting story 
in the Wall Street Journal today about how Bank of America 
bought Merrill Lynch and how that purchase of Merrill Lynch 
triggered the situation where they needed a big bailout and 
they needed substantial amounts of money from TARP.
    In the context of the examination of that situation 
recently, it was revealed that Secretary Paulson and Ben 
Bernanke, the head of the Federal Reserve, had pressured the 
Bank of America not to reveal what they were doing with regard 
to the purchase of Merrill Lynch, why they were doing it and 
how they were doing it. Didn't they realize that was going to 
cause them some problems and get them into a situation where 
they needed a TARP bailout? But they were told not to say 
anything, as I have just said, by those two very powerful 
individuals.
    Have you looked into this situation yet? Have you had an 
opportunity to look into it yet? And if so, can you tell us 
what you believe the circumstances are?
    Mr. Barofsky. Yes, we are looking into that situation. The 
article that you are talking about was testimony taken up in 
New York of Chairman Ken Lewis. I was actually there during 
that testimony. We have our own investigation as well as an 
audit into these circumstances.
    I would say we are going to be putting out an audit product 
that details all of the circumstances. But I would caution 
anyone from leaping to too many conclusions about what 
Secretary Paulson or Chairman Bernanke said until we have 
looked at all of the facts and reported on them.
    I think that the conclusion that one may draw that it is 
black and white, that there was an order from the United States 
Government not to disclose this information, I don't think it 
is as crystal clear as may be suggested in that article. But 
that is something we are going to do. We are going to present 
all of the sides of those conversations in our audit report. It 
is a part of an ongoing investigation that we have. We are 
aware of the circumstances and the situation that you 
described.
    Representative Hinchey. I am happy that you are looking 
into this, and I hope that you are going to do it in a very 
effective and thorough way. I know there are going to be some 
restrictions on you and some lack of cooperation with you with 
regard to this particular set of circumstances, as there are in 
the whole array of circumstances, a lack of providing the 
information that you need. Is that going to be a problem for 
you as this moves forward?
    Mr. Barofsky. I don't think so. We have not encountered any 
restrictions. I know that there are certain things that it is 
reported in that article that the State attorney general 
accessed, certain things that he couldn't get. We can get 
access to that because of our situation as the Federal 
oversight body overseeing the bailout.
    And to date, everyone has been very cooperative in 
providing us information and giving us access to necessary 
interviews. I assume that is going to continue. As required by 
statute, I will certainly let Congress know if there is any 
resistance or push back.
    Representative Hinchey. I hope you are right. We look 
forward to the results of your investigation. We know from the 
basis of our own experience here with regard to hearings that 
we have had with the Treasury Department and with the Federal 
Reserve, how they have been reluctant to be candid about the 
economic circumstances that we were facing back in 2008 in the 
context of a recession which began, clearly, as early as 
December of 2007. Nevertheless, they continued over and over to 
say that there were no economic problems that we were facing, 
there was nothing big to worry about. And all of that continued 
until all of a sudden the TARP bill showed up here in the 
Congress with Secretary Paulson saying this was something 
absolutely essential that needed to be passed.
    There was no preliminary, actual honest analysis of the 
economic circumstances that we were facing then. I can't help 
but see that some of this is still continuing. We are still not 
getting all of the truth about this situation. We are not 
getting a clear analysis of it. As a result of that, this 
Congress has not been as effective as it should be in moving 
forward and dealing with the legislation that is needed to move 
us forward on behalf of the people of this country so that 
their money is not being wasted the way that as it has been. 
Hundreds of billions of dollars wasted in the context of this 
set of circumstances. And even now, as you were saying, as much 
as $3 trillion, money that has come of the Federal Deposit 
Insurance Corporation, the Federal Reserve, and a whole host of 
other places, much of that is still on the back of the 
taxpayers of America.
    All of this information needs to come forward. So if there 
is something that you can say about that now and what you think 
is going to happen soon, it would be appreciated.
    Mr. Barofsky. We are going to continue, through our audit 
function and our investigative function, to push and push for 
more and more transparency. Our audit reports will be available 
to every Member of Congress and eventually to every taxpayer. 
We will push for that transparency to bring forward those 
answers.
    Representative Hinchey. Thank you.
    Chair Maloney. Congressman Burgess for 5 minutes.
    Representative Burgess. And that transparency, the Federal 
Reserve, the FDIC, to some degree Treasury, when you stop and 
think how much money--it probably equals all of the 
discretionary money that we will appropriate this year--that 
those appointed individuals have under their control, it is 
absolutely critical that that transparency and that 
accountability and that oversight be there. Because I think Mr. 
Hinchey is correct; the credibility of the United States 
Government has suffered as a consequence of mishandling of this 
situation. There is plenty of blame to go around for all 
branches of the government and both parties, certainly.
    In your report, you point out that many aspects of the 
public-private investment partnership could make it inherently 
vulnerable to fraud, waste and abuse, and you identified three 
major areas.
    Let me ask you specifically on the conflict of interest, 
first on the conflict of interest, do we need to be a little 
concerned, moderately concerned, greatly concerned on the 
conflict-of-interest issue?
    Mr. Barofsky. If unaddressed, extremely concerned. Too much 
power is being granted to these private players, and if the 
right protections are not in place, we basically would be 
asking I think potentially for catastrophic taxpayer loss 
without the right protections.
    Representative Burgess. On the issue of collusion, 
government leverage presenting a great incentive for collusion, 
can you explain how that can expose taxpayers to further loss?
    Mr. Barofsky. As a simple example, buyer and seller agree 
on a price that is above the price that it should be. The price 
should be 50. They agree to pay 80; the buyer agrees to give 
80. Therefore, a criminal profit of 30. The reason they can do 
that is because the buyer is only on the hook, because of 
leverage, 7 percent of that initial investment.
    So if the spread on the price fix is greater than the 
exposure because of the tremendous amount of government 
leverage, it is a simple economic mathematical calculation. 
Both sides can make a lot more money. The only downside is, of 
course, detection and prosecution.
    Representative Burgess. On the money laundering, the fact 
that both the public/private invested partnerships and the term 
asset-backed securities loan facility present an opportunity 
for money laundering, organized crime, narcotics, and large-
scale fraud operations, do you think that we are doing enough 
to forestall those activities, the activities of the money 
laundering?
    Mr. Barofsky. Not yet; but I am hopeful as these programs 
are rolled out they will be.
    I think the Federal Reserve has a pretty good anti-money 
laundering program on the TALF as it currently exists. For 
these other programs which will be run by Treasury and the 
FDIC, we are going to have to see. They are still in their 
formation stages.
    My prior background being a prosecutor of narcotics 
traffickers, my chief of staff who is here, headed up the 
Southern District's international narcotics trafficking unit 
and did massive money laundering cases. We are pretty familiar 
with the complexities and the ways that drug trafficking 
organizations launder their funds. There needs to be very, very 
tight restrictions, and we are going to push for them.
    Representative Burgess. And you are making recommendations 
to Treasury to protect the taxpayers' interests?
    Mr. Barofsky. Absolutely.
    Representative Burgess. Have any been adopted by Treasury?
    Mr. Barofsky. They are still in the formation stages. They 
have indicated early that they have registered our concerns and 
they are taking them seriously. But they have not formally 
adopted these restrictions yet.
    They have required certain know-your-customer standards be 
applied in the legacy securities program, and that is certainly 
a very, very good first step.
    Representative Burgess. Is there anything that we can do to 
help?
    Mr. Barofsky. I think conducting hearings like this, making 
sure that the Members of Congress and members of the public 
know what is going on with their money is a tremendous help. If 
there is anything specific, I will be sure to let you know.
    Representative Burgess. We look forward to that.
    Your report documents a potential increase in leverage from 
the interaction of the public-private investment partnership 
and the term asset-backed security loans facility. You note the 
unfairness and the additional risk imposed to the taxpayer. Can 
you also explain how this can magnify the dangerous incentives 
already in place?
    Mr. Barofsky. This really concerns us. When this was rolled 
out, it was not part of the initial announcement. It was in one 
of the term sheets. When I saw it, it raised my concern.
    One of the basic things that was explained to us, because 
we made a series of recommendations with respect to the TALF 
back in February, and one of the things that the Federal 
Reserve kept impressing on us, the Federal Reserve and the 
Treasury, is that based on the complicated economic models that 
the Federal Reserve conducts, is that this haircut, this skin 
in the game, the amount of money that the private investor is 
responsible for putting up personally before getting these 
nonrecourse loans was crucial from credit loss as well as a 
fraud risk.
    When you have these programs interact, particularly what 
you have in the PPIF program, Treasury lending money to the 
fund manager and then taking that already leveraged lent money 
and bringing it to the TALF window, you are diluting that 
interest, that skin in the game, by at least 50 percent, 
thereby undercutting one of the fundamental protections to the 
taxpayer. That caused us grave concern.
    As you also noted, that leverage on leverage. So that fund 
manager has that tremendous ability and power to set the price. 
When you are pricing up a security which, in an illiquid 
market, you are magnifying that ability by two, three, four, or 
five times; thus, increasing the dangers, making it all the 
more important that we have the right fraud protection measures 
in the original program as well.
    So that is why we recommend not to do it, particularly if 
there is Treasury leverage, that there shouldn't be this 
interaction between the two programs unless they come up with a 
way to almost significantly redo and recalculate the way that 
they do the TALF.
    Representative Burgess. I hope they are listening to you. I 
yield back.
    Chair Maloney. Congressman Cummings for 5 minutes.
    Representative Cummings. Thank you, Madam Chairlady.
    You said something that struck my interest, and I hope it 
doesn't go by our committee. You said that one of your greatest 
concerns is the conflict-of-interest issue; is that right?
    Mr. Barofsky. It is a very grave concern of ours.
    Representative Cummings. Why is that, Mr. Barofsky? What do 
you mean by that?
    Let me tell you where I am going with this. A lot of my 
constituents when they see who the players are, they feel as if 
everybody came off Wall Street. And as they say to me in the 
grocery store, these folks may be playing golf together, social 
events and those kinds of things. And what is to say that 
things are not being done which are not necessarily--and I am 
not accusing anybody of anything, I am just telling you what my 
constituents feel--in the public interest. That is one type of 
conflict.
    I think it is very important if the President and the 
leadership, this Congress, is going to turn this economic 
situation around that the public has a certain level of 
confidence that everybody is playing fairly. You just gave some 
scenarios that should concern all of us.
    I am just wondering with regard to conflict, what kind of 
recommendations have you made? And when we spoke to Mr. 
Devaney, by the way, with regard to the stimulus package, who 
is the watchdog trying to help folks, he said one of his basic 
concerns was that he prevent people from doing stuff wrong. I 
am wondering, is there any of that here? Are you following me?
    Mr. Barofsky. Sure. So much of our recommendations are 
geared towards deterrence. The bottom line is that with $3 
trillion, we could have a staff of thousands, and if the right 
protections are not in place beforehand, we will never catch 
up. That is why we pushed so hard with these recommendations, 
our law enforcement, and our task force to deter fraud from 
occurring beforehand.
    That is where transparency becomes so important, as I noted 
before. It is hard to execute a conflict of interest if you 
know everyone is looking very carefully at what you are doing. 
But conflict of interest really, in the terms I am using, is 
anytime someone puts their own private interest above that and 
to the detriment of the taxpayer. In these programs there is a 
real danger of that.
    I think what you are referring to are the relationships 
between Wall Street and those who may be making policy 
decisions. The importance is for the policymakers to have a 
sense of detached skepticism of Wall Street. That is what we 
bring. It is not that we think that all of Wall Street is 
geared and going to do things wrong, but we have to recognize 
where the economic incentives are and at times have to assume 
the worst in order to build the right protections.
    Representative Cummings. One of the arguments we heard on 
Tuesday from Dr. Simon Johnson and Dr. Joseph Stiglitz was that 
corporate separation of ownership and control have produced 
perverse incentives for the officers and directors of these 
financial firms such that the interests of the officers were 
not necessarily aligned with the interests of the shareholders.
    Do you agree with this assessment and, if so, how can 
taxpayers' ownership rights be exercised, especially in light 
of the recent discussion of a potential plan to convert 
preferred stock to common equity shares? Do you have any 
concerns there?
    Say, for example, with AIG, we own 79 percent, and 
decisions are being made every day of something that we own. I 
guess you end up investigating us. But the question is, do we 
have sufficient control there to actually carry out the wishes 
of the public? The things that are in the best interests of the 
public?
    Mr. Barofsky. I think of the benefits of the audits of AIG, 
the one that obviously we have initiated at your request, as 
well as the audit of the executive compensation issues at AIG, 
will bring attention to this issue. Right now, AIG--basically 
the Federal interest is being run by a number of trustees who 
have been assigned to look out for the government's interest.
    Under the conversion that you are describing, under the 
capital assistance program, again the concept is there is going 
to be a private trust that is independently going to manage the 
government's voting interests. So, in a way, separating the 
voting and control from the actual policymakers, and the goal 
there is to separate from political influences decisions to run 
the corporations.
    One of the things that we are going to see in the AIG audit 
is how much of that is actually happening. What is the impact 
and influence on a day-to-day basis of the Federal Reserve and 
of the Treasury in decision-making?
    But these are very complex and very real concerns, and we 
are hoping that this audit will help shed some light on it.
    Representative Cummings. Thank you very much.
    Chair Maloney. Thank you.
    I would like to go back to your comments, Mr. Barofsky, on 
the use of TALF to buy toxic assets with taxpayer funds, to 
better understand it.
    The SIGTARP expresses in your report serious concerns that 
Treasury's proposed expansion of TALF to allow the use of 
legacy residential mortgaged-backed securities as collateral 
poses a significant risk of fraud. And to mitigate these, the 
report recommends that Treasury require individual review of 
the securities involved and reject those that do not meet sound 
underwriting standards. Has Treasury agreed to do that, to do 
an individual review?
    Mr. Barofsky. They have to a certain extent. Always when 
dealing with Treasury and our interactions with them, until 
something is formally announced, we are going to keep pushing 
and pushing. They have indicated in their response to our 
recommendations, basically the way it works before we put these 
recommendations in the report, we share them with Treasury and 
give them an opportunity to respond.
    In response to this particular recommendation, they did 
note that they are going to be considering, in their language, 
CUSIP by CUSIP, and that is the individual number that is 
assigned to each type of bond review, and that they are going 
to consider individual underwriting standards. We think this is 
vitally important.
    Under the original version of the TALF, there is a reliance 
on credit rating agencies. And with these toxic--particularly 
these residential mortgaged-backed securities, those are 
useless. They shouldn't be paid any attention. We need to 
protect the taxpayer, to look behind those ratings at the 
actual loans that backed these securities in order to protect 
the taxpayer.
    Chair Maloney. And the so-called liar loans, you also 
recommended that Treasury impose significant higher haircuts on 
all MBSs, and especially the legacy RMBs. Are they going to do 
that? Have they indicated their reaction to that?
    Mr. Barofsky. They are going to impose higher haircuts for 
those. We will have to see what the percentage is. Just to be 
clear, on the liar loans, our recommendation for that is we 
don't touch them, that they be thrown out of the program. We 
can't have any degree of certainty that these loans with 
virtually no underwriting, the very worst of what got us into 
the current crisis, and there can really be no taxpayer 
protection.
    Chair Maloney. In your first report, you recommended 
against the expansion of TALF to this category, correct?
    Mr. Barofsky. Yes.
    Chair Maloney. And obviously Treasury has not responded or 
reacted to that.
    Can you explain your reasoning and comments? Why does 
Treasury believe that it should be expanded to TALF? Have you 
had any conversations? Can you shed some light on that 
reasoning?
    Mr. Barofsky. Our recommendation was that it not be 
expanded unless it significantly reworked the program. And the 
type of recommendations that we are making are a significant 
reworking of the program. So if these recommendations are 
adopted, we think that the taxpayer can be protected.
    Chair Maloney. Can you elaborate just to clarify for our 
colleagues and the public, TALF was not designated for this 
purpose. Is this going to weaken the ability of TALF to fulfill 
the purpose that it was put in place for? If this program needs 
more subsidy, maybe it is better to give the subsidy instead of 
endangering another program? Can you elaborate on that.
    Mr. Barofsky. TALF, as originally envisioned, was a $200 
billion facility to deal with certain classes of asset-backed 
securities, including student loans. That hasn't changed. That 
$200 billion as far as we have been informed by the Federal 
Reserve and Treasury, this is in addition to. So it is not 
pushing out the original intent of TALF. It is adding to it.
    Chair Maloney. Will it hinder its ability to meet its 
original purpose?
    Mr. Barofsky. It shouldn't. As described, if that money is 
still in place, it should exist alongside the expansion of the 
program.
    Chair Maloney. Do you believe the measures that you have 
suggested to mitigate the risk will make this expansion an 
effective and sound use of taxpayer money? Or do you think the 
risk is too high and the benefit does not correspond to the 
risk?
    Mr. Barofsky. Whenever we make our recommendations, we 
recognize the reality. The only way to ensure there is no fraud 
in a government program is to not have a government program. We 
deal with the hand that we are dealt. We try to make our 
recommendations to protect these programs from fraud, waste and 
abuse to the greatest degree we can, given what the programs 
are.
    It would be a very rare circumstance where we would come 
out and say, ``You cannot do this program, it is too vulnerable 
to fraud.'' I think with the right protections, we can be okay.
    Chair Maloney. Thank you, and I yield 5 minutes to Mr. 
Burgess.
    Representative Burgess. Thank you. I appreciate the 
recognition. Let me ask you a question, Mr. Barofsky. The 
Secretary of the Treasury, Henry Paulson, and Federal Reserve 
Chairman Ben Bernanke pressed some major banks to accepted the 
TARP funds in October, 2008, even though these large banks, 
neither wanted the TARP funds. Now some of the banks, notably 
Goldman Sachs and J.P. Morgan Chase, want to return the funds 
immediately, but the administration has talked about imposing a 
national interest test to block well-capitalized banks from 
returning TARP funds. In a fiscal year where Federal deficits 
will exceed $1.8 trillion or 13 percent of the GDP, does 
blocking well-capitalized banks from repaying the taxpayer 
serve the public interest?
    Mr. Barofsky. That is a policy based question that is 
better asked to the Secretary of Treasury.
    I will note that in the stimulus act, which changed the 
rules regarding the ability of banks to repay or redeem their 
preferred shares, it is in consultation with the regulators. 
Ultimately, it is the regulators' decision as to whether to 
approve or not approve, or at least it should be the 
regulators' decision to approve or not approve the repayment of 
funds.
    But your more fundamental question is one that I am not 
really qualified to answer.
    Representative Burgess. I appreciate that, and I appreciate 
your honesty.
    Just intellectually, it seems as if the banks no longer 
need the money, it would make sense to give it back or it would 
make sense to allow them to do so. Can you speculate as to what 
would be the moral hazard for not allowing them to repay the 
money that they felt they no longer needed or didn't need in 
the first place?
    Mr. Barofsky. I think a lot of this gets--to use a phrase 
that was used earlier during this hearing--a lot of spin. From 
our perspective, we don't like to get into speculation and 
addressing the motives without a full-fledged audit. We are 
doing an audit. Part of our audit into Bank of America includes 
looking at that fateful day in October when the nine financial 
institutions were called to the Treasury and, as you say, that 
they were basically told that they were going to be accepting 
these infusions of capital. We will be able to provide more 
detail through that audit.
    Representative Burgess. Very well. Can we talk AIG for just 
a minute?
    Mr. Barofsky. Sure.
    Representative Burgess. What can you share with us about 
your findings so far through the audit as you have been through 
it concerning potential overpayments made by AIG to its 
counterparties?
    Mr. Barofsky. Generally, I can share with you very little. 
One of the tenets of an ongoing audit is that we, as a matter 
of policy, we don't share information until the audit is 
complete.
    There are a number of reasons for this. One of the most 
significant is we want to encourage an atmosphere of free 
flowing of information with AIG and with the Federal Reserve 
and with Treasury. If we start disclosing information as we go, 
it can impact the actual audit itself. It is a long-standing 
audit principle.
    The one exception I have drawn on that is in the use of 
funds, where we will be doing preliminary results even before 
our audit is concluded. I have given some anecdotal answers 
because it is such a vital and important issue to get that 
information out because of its impact on our other 
recommendations. But I have to ask for your indulgence to allow 
us to finish that audit before we start giving results and 
observations.
    Representative Burgess. When can we expect to see the 
completed results?
    Mr. Barofsky. My current plan is that all of audits, our 
six pending audits, will be completed by the summer. I am 
hoping that it will be earlier in the summer than later. But 
that is our goal for each of the audits, including the two AIG 
audits.
    Representative Burgess. So late June or early July when we 
have this quarterly visit again?
    Mr. Barofsky. I would say within the next 3 months. I am 
hopeful to have some of these audits completed, if not all of 
them.
    Representative Burgess. Very well.
    On the issue that the Senator from Minnesota brought up 
about having the hotline and how critical that was. Last fall, 
when we did not have any sort of infrastructure at all and we 
would get those venting calls--I mean a lot of venting calls, 
thousands of venting calls--it would have been great to have a 
1-800-go-ask-Neil number to triage those. With your permission, 
I may link to your Web site or put your number up on our Web 
site as well, because I think you bring up a point that is so 
critical.
    A lot of that information is out there, and I was astounded 
by the amount of information that came to me last October. And 
not feeling I was the correct one for that information or 
qualified to act on it, it was sometimes difficult for me to 
find where that information should go. So I am very grateful 
that you are on the job and doing what you are doing. Thank 
you.
    I yield back the balance of my time.
    Chair Maloney. Mr. Hinchey is recognized for 5 minutes.
    Representative Hinchey. I once again want to express my 
appreciation to you. What you are doing is critically important 
for the economic circumstances that this country is 
confronting. We are very grateful for the competent way in 
which you are doing this.
    One of the things that you have done is to highlight the 
lack of financial disclosure, the lack of information coming 
out of this whole financial situation. As I was reading your 
SIGTARP report that came out just recently, one of the things 
that you talked about was the fact that you had checked in with 
I think it was 364 recipients of the TARP funding and that you 
had contact with them and you were asking questions and trying 
to get information from them. And you were pressing for the 
facts: How much money did you get? What did you do with it? 
What were the effects of what you were doing?
    I mean, this is public money, money owned by the people of 
this country. And so that should be known. What you were doing 
obviously is so important and you were doing it in such a 
significant way.
    But the Treasury comes back and says, no, it is not going 
to be possible. We can't do that. That information cannot be 
delivered.
    But then, in the context of those 364 operations that you 
looked into, you made a very interesting statement which is 
that some banks were able to provide detailed, at times even 
granular descriptions of how they used taxpayer money.
    So if some banks can do it, why can't all of the banks do 
it? I know that they all can, but I know also that they don't 
want to for their own particular reasons, whatever they may be. 
We can speculate what those reasons might be, and it would be 
interesting to do so. But that is the situation that we are 
confronting.
    What do you think is going to happen as this moves forward? 
Do you think you will be more successful to get that 
information out through the Treasury and through the banks? Or 
what is it that we should be doing to make sure that actually 
happens?
    Mr. Barofsky. We are going to keep trying and pressing. I 
believe that logic for our arguments ultimately should win the 
day.
    Obviously, Congress has the ability and power to 
statutorily requirement of this kind of information. You have 
required me through the Special Inspector General Act, once it 
is signed, required me to do this report. We got out in front 
of it back in January, but part of that requires us to report 
to you by September 1 on how the financial institutions have 
used those funds. A similar type of requirement could be 
imposed on Treasury.
    Representative Hinchey. Good. I hope there is more success 
as time moves on and there is much more openness.
    Your report notes that since the SIGTARP's office has only 
preliminary information, the recommendations are not 
necessarily at a very high level. A few of the recommendations 
you put forward are interesting and very important. I would 
just like to mention them.
    Here is what you are recommending: Treasury should place 
strict conflict of interest rules upon the Public-Private 
Investment Program and the managers of that program so that 
investors in this program would not have the potential to 
artificially inflate prices of the assets; Treasury should 
mandate transparency which would ensure that taxpayers know how 
their funds are being used and that such transparency would 
identify conflicts of interest; stringent investor screening 
procedures should be in place to prevent money laundering. All 
of these things are so solid that you are recommending and so 
critically important and so obvious that they should be done.
    So you've noted that this program is particularly 
vulnerable to fraud at many levels. Given the Treasury's track 
record on instituting accountability provisions in its 
contracts, what do you think the strategy should be to 
encourage the Treasury to employ the recommendations listed in 
the report in this program?
    Mr. Barofsky. I am going to remain optimistic. I am an 
optimist by nature, and I am going to remain optimistic.
    Putting aside even my optimism, I think the consequences of 
failing to adopt these recommendations are so great. I 
communicated this to Treasury earlier this week.
    We want these programs to work. As Special Inspector 
General, it is vital to us that these programs work. The 
dangers here are so bad, in our view, that if they are not 
addressed it is not just a question of a little bit of fraud 
here or there but it is putting into question the American 
people's confidence in their government and the ability to get 
us out of this financial situation. It puts into danger the 
very recovery.
    We think it is so fundamentally important that we are 
optimistic that Treasury is going to recognize these dangers 
and the potential consequences of failure to protect the 
taxpayer money. We are hopeful that they will be implemented 
and implemented in full.
    Representative Hinchey. Mr. Barofsky, I thank you very much 
for everything you are doing and for everything that you have 
said and for the answers you have given to the questions here 
today. Thank you.
    Chair Maloney. Mr. Cummings for 5 minutes.
    Representative Cummings. What do you see as the 
consequences that you just talked about?
    Mr. Barofsky. In the first place, we could be looking at 
literally hundreds of billions of dollars lost to fraud of 
taxpayer money. To me, as part of my mandate, that is front and 
foremost.
    But the danger of loss of confidence--if the American 
people lose all confidence in their government and the ability 
of the Treasury to engineer this bailout, so much of economic 
recovery is based on confidence. When people start feeling good 
about spending money, going out, and purchasing--it is a very 
psychological concept, of course, a recession. If there is a 
perception out there that all this program is is picking 
winners and losers and rewarding at taxpayer expense and loss 
of hundreds of billions of dollars to fraud, it is going to 
have an impact beyond just the money that is lost. I think it 
could damage the psyche of the American people. I think it is 
critical that we make sure that the American people know that 
we are protecting their investment, and that ultimately that is 
going to lead to recovery.
    Representative Cummings. First of all, I agree with every 
syllable that you just said. Without going into the AIG 
situation, you said everybody is cooperating with you, and I 
assume that includes AIG?
    Mr. Barofsky. Yes. I would say initially there was a little 
bit of back and forth. But, as of this week, information is 
flowing.
    Representative Cummings. How long have you been looking 
into them?
    Mr. Barofsky. It has been a couple of weeks.
    Representative Cummings. Okay. We have heard a lot of 
discussion about the stress test for certain TARP recipients. 
These tests are nearly completed. Do you think the results 
should be made public and do you think the tests are 
considering the right scenarios and asking the right questions?
    Mr. Barofsky. I don't feel qualified to answer that 
question because I haven't seen the results of the stress test. 
We have many areas of expertise, but that type of regulatory 
detail is not something that we have looked at. I think it is 
something that we are going to look at. I think that is the 
subject of a future audit once we have the right staff and 
personnel in place to answer that question. But, at this time, 
I think it is too early for us to be able to do so.
    Representative Cummings. Quite a few institutions are 
trying to pay money back, small and a few large. I know that a 
lot of it, according to reports in the paper, it had to do with 
compensation issues, but do you think any of it has to do with 
you and your office? I'm just curious. I mean, looking into 
things?
    Mr. Barofsky. I think if there are financial institutions 
that are out there that are afraid of us and worried about the 
oversight that we are providing, I think that is a positive 
development.
    Any financial institution that is playing by the rules and 
doing what they are supposed to do has absolutely nothing to 
fear from our office. We are not on a witch hunt or looking to 
make anybody look bad. But if they are not playing by the 
rules, if they are stealing and committing fraud, and we are 
inspiring them to get out of the program or not to get into the 
program in the first place, I think that is why you created me, 
to provide that level of deterrence.
    Representative Cummings. Mr. Barofsky, you have the 
American people looking in on this right now, and the people in 
my district, many of them have lost their savings which they 
are never going to get back. Never. They have lost their homes. 
They have lost their jobs. They have lost all kinds of 
opportunities, and I think that they are just looking for 
somebody, just trying to make sure that somebody is watching 
over all of this. Like you said, this public confidence thing 
is major. I mean, what can you tell them with regard to your 
office and how do you plan to deal with all of this?
    It seems like you have a lot on your plate, a lot. They are 
just looking for--as all of the polling shows, they trust the 
President and they trust that he is going in the right 
direction. But they also realize that trying to straighten out 
this mess is like pushing a heavy boulder up a hill. And when 
these kinds of things happen, that is some of the things you 
most fear. It is like putting ice on that hill. So what can you 
tell them now? And I only have 3 seconds left.
    Mr. Barofsky. I hope I have more than 3 seconds.
    Congressman I have spent the last 8 or 9 years of my life 
as a Federal prosecutor before I came on board. Some of the 
most heartbreaking work I ever did was when I was heading up 
the mortgage fraud unit and seeing some of the pain that you 
are describing of your constituents and what happens when 
people are taken advantage of and they lose their homes, their 
life savings.
    I bring all those experiences to this job; and I have 
assembled a staff that is just remarkably talented individuals. 
From my chief of staff here, who was a former prosecutor, my 
investigations division, my audit division, we have some of the 
best and brightest and most talented people you can imagine. So 
many of them making personal sacrifices, financial and 
otherwise, just to join my office, the amount of money that 
people have walked away from because they believe in this 
mission of our office.
    And what I can say to your constituents is that we are 
here. The staff that I have together, my office, myself, we 
take this role, we view it in an historical context. $3 
trillion, never has so much money been pushed out in such a 
short period of time.
    And you, the Congress, have given us an enormous 
responsibility; and it is one that we bear every single day. 
And we are going to be looking out for the taxpayers without 
regard to any political concern, economic concern for 
ourselves. We have an important role, and we are going to 
fulfill that role.
    Representative Cummings. Thank you.
    Chair Maloney. I want to thank my colleagues and 
particularly want to thank you, Mr. Barofsky, for your public 
service and for your testimony today. We certainly do 
appreciate your very hard work in tracking the TARP program and 
identifying waste, fraud, and abuse.
    Clearly, we have a tremendous obligation to protect 
taxpayers' funds. I appreciate your efforts in this area, and I 
hope you will come back and speak to us again when your next 
report comes out.
    Thank you very much, and this meeting is adjourned.
    [Whereupon, at 11:35 a.m., the committee was adjourned.]
                       Submissions for the Record

     Prepared Statement of Representative Carolyn B. Maloney, Chair
    Good morning. I want to welcome Mr. Barofsky, the Special Inspector 
General for the Troubled Asset Relief Program, and to thank him and his 
staff for his testimony today on the SIGTARP's new report to Congress, 
just released Tuesday.
    The SIGTARP reports to Congress quarterly, and this is its second 
report. Like the first report, issued February 6, this report takes a 
strong but clear position against the aspects of the TARP program that 
the SIGTARP believes risk promoting fraud, waste and abuse. Mr. 
Barofsky is a former prosecutor who does not shrink from telling it 
like it is, so the interests of the SIGTARP's mission is to make the 
best use possible of the taxpayers' money.
    The SIGTARP's reports distinguish themselves by thorough but very 
clear explanation of the TARP programs and the SIGTARP's audit and 
investigations strategy, as well as specific recommendations on steps 
Treasury should take to prevent waste, fraud and abuse in the program.
    Regrettably, some of the key recommendations in this report 
reiterate critical recommendations in the first report--recommendations 
that would promote transparency and accountability and reduce the 
potential for fraud and misappropriation, but which Treasury has yet to 
adopt.
    This second report is even more critical to our understanding than 
the first, in part because the TARP has become such a complex series of 
programs and in part because the dialogue between the SIGTARP and 
Treasury on key issues is more advanced and is getting into some 
specific issues that are of great interest to policy makers and to this 
Committee.
    As a proponent of greater transparency of the program, I requested 
that the Federal Reserve release AIG counterparty information and the 
disclosures were made last month. The SIGTARP is set to audit the 
payments to the AIG counterparties and investigate why it was deemed 
necessary to redeem those securities at full value. This is a key issue 
that lies at the heart of the AIG rescue: why were the counterparties 
made whole at the expense of the taxpayer? Shouldn't they have had to 
share in the loss?
    Similarly, the report repeats the recommendation of the first 
report that Treasury must require TARP recipients to report the use to 
which they put the TARP funds. This recommendation echoes the concerns 
of legislation I have introduced that would require Treasury to track 
the TARP funds, even using presently reported or public information. 
Treasury has not adopted this very important recommendation, but the 
work of the SIGTARP, including a survey they conducted of some 364 TARP 
recipients, shows that additional information can be provided.
    On a basic level, it's absolutely critical that we know where the 
money has gone and how it's been used. Reports that banks getting TARP 
money have used it to buy banks in China, highways in Spain, or even to 
short the stock of their competitors to bring them down and gobble them 
up--these emphasize the need for us to know where the money has gone. 
Beyond that, we should be able to assess--looking at available data and 
performance measurements--whether or not these funds have been used 
effectively.
    However, these lessons are not always reflected in the new proposed 
programs. As this report notes, the PPIP has some inherent features 
that make it vulnerable to conflicts of interest. The government would 
be remiss in its duty if it were not to impose rigorous reporting and 
disclosure requirements on those managers and investors. I am concerned 
that Secretary Geithner, in testimony Tuesday, headed in the opposite 
direction, saying that Treasury would exempt the PPIP participants from 
the executive compensation requirements of the TARP statute.
    The goals of transparency and accountability that guide the SIGTARP 
inform this new report and its recommendations. It is crucial not only 
to the success of the TARP but to the recovery of our financial system 
and our economy that we pay close attention.
    I look forward to the testimony.
                               __________
       Prepared Statement of Kevin Brady, Senior House Republican
    I am pleased to join in welcoming Inspector General Barofsky before 
the committee this morning. His office is one of the most important and 
effective guardians of the trillions of dollars taxpayers have at risk 
in the massive bailouts of large financial institutions.
    Unfortunately, as Kansas City Federal Reserve President Thomas 
Hoenig testified earlier this week, these bailouts ``risk prolonging 
the crisis, while increasing the cost.'' In this context, I found 
Inspector General Barofsky's most recent report quite disturbing. Mr. 
Barofsky, your report contains very troubling information that has not 
been previously disclosed.
    This report identifies many key weaknesses in the design and 
implementation of the government bailouts that could greatly increase 
their cost. For example, according to the report, the Treasury 
Department has ``indicated that it will not adopt SIGTARP's 
recommendations that all TARP recipients account for the use of TARP 
funds; set up internal controls to comply with such accounting; and 
report periodically to Treasury on the results, with appropriate sworn 
certifications.'' The complexity and lack of transparency in TARP 
programs is further reason for concern. The key question before the 
committee this morning is why the Treasury Department continues to 
resist adopting many of the safeguards recommended in your report.
    Regarding the Public-Private Investment Program (PPIP) unveiled by 
Secretary Geithner, your report notes, ``Many aspects of PPIP could 
make it inherently vulnerable to fraud, waste, and abuse.'' 
Vulnerabilities include the huge size of the program along with 
conflicts of interest, collusion, and money laundering. With regard to 
money laundering, your report notes that it would be unacceptable if 
TARP or related funds ``were used to leverage the profits of drug 
cartels or organized crime groups.'' Unlike banks and retail brokers, 
these partnerships are not currently subject to comparable disclosure 
rules to prevent money-laundering and abuse. Furthermore, the report 
demonstrates how interactions between two different bailout programs 
could encourage excessive leverage and greatly magnify taxpayer losses.
    With regard to another component of the bailouts administered by 
the Fed, the report said, ``Treasury should require additional anti-
fraud and credit protection provisions specific to all MBS, before 
participating in an expanded TALF, including minimum underwriting 
standards and other fraud prevention measures.''
    According to the latest estimates, the amount of losses from toxic 
assets in the U.S. alone may be as high as $2.7 trillion. This clearly 
is a huge potential liability for American taxpayers. Unfortunately, 
the Treasury's financial rescue plan seems designed to marginalize 
Congress and avoid the appropriations process. Nonetheless, Congress 
should not finalize the 2009 budget resolution without considering the 
tremendous costs of the ongoing bailouts.
    Economic research shows that the national debt following this 
financial crisis may increase by as much as $8.5 trillion in as little 
as 3 years. This grim fiscal prospect should be an overriding 
consideration as we consider budget priorities and proposals for yet 
more spending. Congress should not go on an irresponsible spending 
spree with trillions of dollars of bailouts already threatening the 
taxpayers.
'
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          Prepared Statement of Representative Michael Burgess
    Thank you Madam Chairwoman,
    I would like to thank Mr. Barofsky for his testimony here today and 
for his important work as the Special Inspector General for the 
Troubled Asset Relief Program. The role of oversight and investigation 
may not be as glamorous as program implementation or funds management 
but to the people I represent, it is probably more important than any 
other aspect of the TARP. Your work is worth every penny that you 
recover through your criminal investigations or deter through the 
presence of your office. Not to mention, the prosecution of the 
individuals or group who seek to corrupt the public trust.
    The report your team compiled is a compelling argument to provide 
you with more resources. Your recommendations to Treasury to require 
all TARP recipients to report on their actual use of every dollar, and 
auditing for verification, is an important first step in keeping the 
TARP out of trouble.
    There is no doubt that the economic downturn we are experiencing 
makes government assistance programs like TARP susceptible to criminal 
elements, but, based upon my reading of this report, the TARP program 
has design flaws that make it an especially prime target. In your 
report you say ``the character of the program makes it inherently 
vulnerable to fraud, waste and abuse,'' including collusion and money 
laundering. Taking advantage of any government program is despicable 
but TARP abuse has the potential to send Americans reeling from a lack 
of confidence in basic governmental protections.
    Some of the weaknesses you expose in this report are certainly 
shocking. It makes me wonder if the ``Troubled'' part of the Troubled 
Asset Relief Program refers to the ``Program'' itself instead of the 
``Assets.''
    I look forward to hearing your testimony and your recommendations 
for Congress. With that I yield back.
  

                                  
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