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The Fed Head’s Problem

Did the Federal Reserve’s Ben Bernanke lie about pressuring the Bank of America not to back out of the Merrill Lynch merger? BofA CEO Ken Lewis made this charge to New York AG Andrew Cuomo, and basically repeated it with a bit of sugar-coating in a House hearing today on Capitol Hill.

The central issue was whether Lewis would invoke the material-adverse-change clause (the MAC clause) to back out of the Merrill deal last December, when Merrill’s books showed far greater losses than were first recognized. Of course, the deal is now succeeding profitably, with the whole financial world having changed for the better since late last year.

But a bunch of e-mails and documents clearly show that Bernanke was hammering Lewis, as was former Treasury man Henry Paulson. So far as I know Paulson has never denied this. But Bernanke did, and therein lies the Fed head’s problem.

Last May 5, in front of the Joint Economic Committee, when asked if he pressured Lewis, Bernanke responded: “Absolutely not, that I absolutely did not in any way ask Mr. Lewis to obscure any disclosures or to fail to report any information that he should be reporting.”

However, an e-mail reveals that Richmond Fed president Jeffrey Lacker spoke at length with Bernanke about all this: “Just had a long talk with Ben . . . says they think the MAC threat is irrelevant because it’s not credible. Also intends to make it even more clear that if they play that card and they need assistance, management is gone.”

In other words, Bernanke acknowledged to Lacker that if BofA management disclosed to shareholders the terrible state of Merrill, even in considering a withdrawal from the deal, Bernanke would fire them. This directly contradicts the Fed head’s public statement before Congress’s JEC.

At that time, Lewis was strongly considering a material-adverse-change clause to stop the Merrill deal. So Bernanke put a gun to Lewis' head, but he won’t fess up about it. A House investigative committee will probably call Bernanke to testify on this subject. If so, the whole world will be watching. As former Reagan prosecutor Joe diGenova told me last night on CNBC, the Justice Department won’t prosecute Bernanke. But his political and monetary credibility may suffer enormously.

Now the question is whether the Obama White House will issue a statement strongly supporting Bernanke, as they have in the past, or whether they will let the Fed head twist slowly in the wind. Perhaps my Larry Summers/King Dollar preference over Bernanke for Fed head next year is not so far fetched.

Questions? Comments, send your emails to: lkudlow@kudlow.com

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