So, Bank of America has agreed to turn over email records to NY AG Andrew Cuomo, because there is no court in the world that will allow them to use the “I was following my lawyer’s advice” defense without them actually turning over that advice, and we find a smoking gun:

“Unfortunately it’s screw the shareholders!!” Charles K. Gifford wrote to a fellow director in an e-mail exchange that took place during the call.

“No trail,” Thomas May, that director, reminded him, an apparent reference to the inadvisability of leaving an e-mail thread of their conversation.

(emphasis mine)

It’s called “putting lipstick on a pig,” and it is illegal.

Unfortunately for the senior management at BoA, while it was pretty tough to document, today, in the age of casual and conversational email, you can get caught pretty easily, as Mr. May remembered, but Mr. Gifford forgot, and so, in the words of everyone’s favorite robot, “We’re boned!”

Even without the whole, “going to jail” thing, there is a shareholder suit, and this will be used, so it’s not a pretty picture.

About the only defense that they have left is the “Hank Paulson and Ben Bernanke made me do it defense,” and I rather expect to be hearing that soon.