Maybe the problem here is the law. If the intent of the law is to protect the shareholders, lets just dump the law and have the shareholders decide. If they want him punished, they can do that in a number of ways including firing him. If they don't care, thats their prerogative as well. They are, after all, the "victim" if there is one. I think any deception of this kind is a bad thing, and that the shareholders should demand transparency in the management of the company. Maybe the solution would be for Jobs to give back double the amount of stock value for the gain he would have received in the deception as a clear reminder to him and the management in general not to behave in this foolish manner ever again.
There was a story in NY magazine a few months ago analyzing the option back-dating scandal at Apple.
The author of the piece concluded that because Jobs was so important to the company's worth (the estimate was that if Jobs had to leave the CEO post b/c of legal trouble, the stock price would lose up to half its value in one day), he was not going to be prosecuted, and other executives would take the fall instead.
You're right, by removing Jobs the SEC would be punishing the very people they claim to protect - the shareholders. However, the SEC doesn't seem to have a problem with this. After all, the massive fines they levy against companies (reducing future shareholder returns) accomplish the same thing.
Regardless, just because Jobs is valuable to the company shouldn't mean he's above the law. It's my understanding that CEOs convicted of securities fraud can still serve their post, assuming their not in jail.
It seems not entirely unreasonable for the SEC to enforce a situation where cheating means you and also possibly everybody else loses. It's a bit like a coach saying, if you don't shut up, everybody does fifty pushups; you're more motivated to shut up that way.
You're not asking them to shut up. You're asking them to stop stealing from the shareholders. That's what options backdating is - stealing from the company's shareholders.
And by fining companies, the SEC is hurting those shareholders. It's important for the shareholders (you and me) to realize that.
It's like telling a thief: If the police catch you stealing: they're going to fine the victims as punishment. What kind of motivation is that?
Well, if it's a choice between that and not punishing cheating period, it might be better to do that. It's a difficult situation, but in general, I'd rather have a system that always punished cheating than one that didn't punish cheating when doing so would have collateral damage, because the latter system means basically that so long as you are important to the company, you're perfectly allowed to cheat.
This works both ways. There are lots of laws that are easy to violate and exist almost entirely so unpopular people can get sued (Michael Milken was barred for life from the securities business and fined $600 million for violating an obscure regulation that cost shareholders an estimated $300,000).
Options backdating is tricky, because the cost of backdating is reflected in the company's financial statements whether or not they announce it. It's like paying employees less than standard wages, but giving them lavish perks -- it's all the same on the income statement, so it's closer to PR than to lying.
It's just par for the course for super-powerful elites.
Of course others have pointed out that Jobs is so important to Apple that doing anything to him would hurt the shareholders that the laws are supposed to protect, whereas some option backdating -- which isn't even illegal, the problem was a paperwork filing technicality -- did zero harm to anyone.
