Soon to be former Attorney General Eric Holder infamously mused last year that Wall Street firms and their executives were so systemically important to our financial system that – even if they commit financial crimes – they may be “too big to jail”.

“I am concerned that the size of some of these institutions becomes so large that it does become difficult to prosecute them,” Holder said at a Senate hearing. “When we are hit with indications that if you do prosecute, if you do bring a criminal charge it will have a negative impact on the national economy, perhaps world economy, that is a function of the fact that some of these institutions have become too large. It has an inhibiting impact on our ability to bring resolutions that I think would be more appropriate.”

Mr. Holder later said his comments were misinterpreted, and that the Justice Department doesn’t believe any institutions are too large to face legal punishment.

Regardless, now that the Justice Department revealed on Thursday that Holder is set to resign some time before the November mid-term elections, it appears that there is no way Holder can rewrite the saddest part of his legacy: not one Wall Street banker or CEO is going to spend time in jail for their roles in the 2008 financial crisis. Holder was simply an AG with no stomach for prosecuting the Wall Street bankers and CEOs who were in large part responsible for the financial collapse that destroyed the savings of Mom and Pop investors across the United States.

This is not to diminish the AG’s other accomplishments during his six years on the job. “Particularly in President Obama’s second term, Mr. Holder has been the most prominent liberal voice of the administration, leading its push for same-sex marriage and voting rights,” reported the New York Times on Thursday afternoon. “After the recent shooting of an unarmed black teenager by a white police officer, Mr. Holder volunteered to go to Ferguson, Mo., as the administration’s emissary.”

The AG has done plenty of fine work in cultural and social arenas, however, despite the staggering financial settlements from Wall Street banks – JP Morgan, which paid a $13 billion fine to the Justice Department for mortgage securities fraud, Citigroup, with a $7 billion fine, and a record $17 billion with Bank of America, the track record of the regulators since the 2008 financial crisis leaves much to be desired. Holder’s successor must change that record.

Financial regulators and the Justice Department are supposed to protect investors and send to jail those who break the laws designed to protect them. Hopefully Holder’s successor won’t show similar hesitancy to prosecute those on Wall Street who securities fraud attorneys and others believe are often at the heart of such financial scandals.

According to a Wall Street Journal report, Senator Warren expressed her outrage at a recent Senate banking hearing at which Fed Governor Daniel Tarullo testified.

“You are supposed to refer cases to the Justice Department when you think individuals should be prosecuted” Senator Warren chided Tarullo. “Without criminal prosecutions, the message for every Wall Street banker is loud and clear. If you break the law, you are not going to jail but you might end up with a much bigger paycheck.”

We believe that it is necessary for the Justice Department to bring criminal cases addressing fraudulent conduct which occurred during the 2008 financial crisis.

Investors have lost confidence in the system and believe that the big guys have gotten away with murder and have profited handsomely. Meanwhile the small retail investor has been left holding the bag.

There has been no will by the Feds to bring cases against senior executives at top Wall Street firms.

As this blog has noted before, that soft stance is in direct contrast with the Justice Department’s hard line against executives involved in the rash of accounting scandals from ten-years ago.

By contrast, during the Enron era, the prosecutors went vigorously after top corporate officers at Enron, WorldCom, Adelphia, Tyco and others and won convictions, many of which have put senior executives like Bernie Evers in jail for decades. No case has been brought against the Lehman or Bear Stearns executives for causing the collapse of those firms; no Citigroup executive has faced charges; and Angelo Mozilo whose Countrywide Financial junk-mortgage machine helped create the mortgage mess is free to work on his suntan.

Some believe that the tens of billions paid in fines by the likes of Bank of America, Citigroup and JP Morgan can simply be attributed to “the cost of doing business.” The culprits behind the frauds have gotten away scot-free.

Holder recently said in a well-publicized speech that criminal prosecutions may be on the way for some culprits who helped cause the 2008 financial crisis that destroyed the retirement savings of millions of Americans.

As the country’s top lawyer, the new Attorney General must show that no one is “too big to jail” and will need to bring serious criminal prosecutions as a deterrent to fraud and to restore investor confidence. We wish Eric Holder well, but his successor must examine his legacy of failure with Wall Street and learn from Holder’s mistakes. The new United States Attorney General simply must do better.

Zamansky LLC are investment and stock fraud attorneys representing investors in federal and state litigation and arbitration against financial institutions.