Choke Point Check-In: Constitutional Concerns in DOJ Targeting 'Risky' Businesses

Albani Collection/Wikimedia CommonsAlbani Collection/Wikimedia Commons"Furor grows" over the Department of Justice's (DOJ) "Operation Choke Point," writes Walter Olson of Cato's "Overlawyered." Chase bank has been closing porn star, payday lender, and other "high-risk" business bank accounts, possibly under DOJ pressure. And though this has been happening since at least May 2013, little attention was paid to the initiative until the recent closure of adult film star Teagan Presley's Chase account wound up throwing the DOJ dirty business into the spotlight. Now even Cosmo is talking about it. 

Operation Choke Point was initially pitched as a crackdown on web-based payday lending businesses that lend into states that prohibit it. Now it may have overreached into the wrong industry by targeting those in porn, wrote Iain Murray at National Review. Unlike, say, online gambling sites or Internet pharmacies, making pornography is a protected First Amendment activity. 

Also constitutionally protected, obviously, is buying and selling firearms—but businesses selling ammunition and guns are also on a list of potentially high-risk businesses that banks should look out for. Hans Bader of the Competitive Enterprise Institute looks closer at the potential legal case against Operation Choke Point:

The First Amendment can be violated by deliberately burdensome investigations, even in the civil context, when the investigation is aimed at a category of speech or speakers, see, e.g., White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (unduly prolonged federal fair-housing investigation violated First Amendment). Indeed, it can violate the First Amendment so clearly that individual federal officials lose their qualified immunity and can be sued individually for damages, as the Ninth Circuit ruled in the White v. Lee decision. And as UCLA Law Professor Eugene Volokh and firearms law expert David Kopel have noted, restrictions can violate the Second Amendment even when they are aimed at sellers, rather than purchasers, of firearms. See, e.g., Kole v. Norridge (2013). So there are serious constitutional issues at stake here. Yet I see little legal commentary on the subject so far.

"Even if the porn industry had a statistically greater incidence of financial shenanigans than a representative cross-section of the country as a whole, that would not justify the government or financial regulators in suppressing it," writes Bader, citing a slew of cases to this point. 

But the DOJ and an anonymous Chase bank employee also piped up last week. The "Chase insider" told Mother Jones that porn star bank closings were part of "routine" banking practice and had "nothing to do with Operation Choke Point."

In a May 7 blog post, the DOJ insisted—without mentioning Operation Choke Point directly—that its dealings with banks were aimed at frauds targeting consumers that "cause significant harm to the American public," including lottery scams, fake business opportunities, and unscrupulous telemarketers—businesses that are "profiting from illegal activities as well as breaking federal law."

DOJ highlights the fruits of its efforts in what could be read, if you're cynical, as a veiled threat against banks who don't do what it says. The bulk of the post is devoted to the tale of North Carolina's Four Oaks Bank, which was processing transactions for online payday lenders operating without state licenses. Four Oaks now owes the DOJ $1.2 million.

One DOJ message is clear: It has the power to hold financial institutions responsible for the (real, regulatory, or perceived) transgressions of those an institution does business with. Even if there's not a nefarious DOJ plot to strangle the porn and firearms industries—and I don't think there is—there's a very real unsavoriness to the DOJ doing business this way. 

Meanwhile, Chase bank parent company JPMorgan is the subject of a Consumer Financial Protection Bureau complaint from economist and former Colombian finance minister José Antonio Ocampo over spontaneously closed financial accounts. Last week, the Financial Times reported that JPMorgan had closed the bank accounts of Ocampo and 3,500 other foreign government officials to avoid the compliance costs of continued business with these "politically exposed persons."

This isn't directly related to the DOJ's Operation Choke Point, but it's not unrelated either. And it's not benign. If it wanted to, the DOJ could cut off banking access to any class of merchants or people it feels like. And as demonstrated in the recent Four Oaks blog post, it wants us to know this. 

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  • The Late P Brooks||

    Pffft- the law is what DoJ says it is.

  • WTF||

    "I am the Law!"
    - Eric Holder

  • UnCivilServant||

    The irony is, in the back of the 200AD Free Comic Book day issue, there's a short wherein Dredd, as the evaluating judge, ends up arresting a cadet for excessive force in an incident far tamer than the crap that gets a "procedures were followed and nothing else happened" in the modern world. (One punch to a surrendering suspect).

    How bad is it when the overblown parody involves more even enforcement than the real world?

  • UnCivilServant||

    *2000AD

  • Hugh Akston||

    When the breadth of federal laws make it possible to construe just about any activity as a crime, there is really no limit to the number and type of people you can bully by threatening their banks.

  • WDATPDIM?!||

    But ... TERRORISM!

  • The Late P Brooks||

    This isn't directly related to the DOJ's Operation Choke Point, but it's not unrelated either. And it's not benign. If it wanted to, the DOJ could cut off banking access to any class of merchants or people it feels like. And as demonstrated in the recent Four Oaks blog post, it wants us to know this.

    Welcome to your new banana republic future, Americans.

    OBEY

  • ||

    Even if there's not a nefarious DOJ plot to strangle the porn and firearms industries—and I don't think there is

    There doesn't need to be. The DOJ plot is to be able to strangle any industry or person it wants to if and when it wants to. And it's showing here that it's at least part of the way down that road.

    This is a good example of how people who want more government are going to find out that more government doesn't really give a shit if you support it or not. Once it gets big, if it decides it doesn't like you or what you do, you're fucked. *cough* Net Neutrality *cough*

  • John||

    Exactly. We have so many laws that DOJ can bankrupt or inflict tremendous harm on any business it chooses. That effectively puts DOJ in charge of every business in America since the threat of action can be used to get the business to do what DOJ wants.

    DOJ now has the power to bankrupt any industry it wants and effectively deprive the American public of any product or service DOJ doesn't like. It doesn't matter that Congress hasn't made making ammunition or pay day loans illegal. All that matters is that DOJ doesn't like those industries and can make it impossible for them to operate by making it impossible for them to have access to a bank or credit.

    If we ever get to the "cashless society" progs are always yammering about, DOJ will be able to do that to individuals as well. "Hey banks, we think doing business with the Episiarch character is too risky so we would appreciate it if you closed all his accounts". Poof, Episiarch is effectively exiled from society and is facing homelessness and ruin with no recourse available and no due process necessary.

  • robc||

    If only someone had written a popular novel that shows how government uses the bundle of entangling laws to bend businesses to their will.

    Why hasnt someone written that? Why?

  • John||

    I don't know rob. I mean it is all just so unexpected. We meant well and we had to do something about the evil criminals and terrorists.

  • ||

    And wreckers and kulaks.

  • Emmerson Biggins||

    The villains would probably all be one dimensional card board cut-outs. Probably nobody would buy it.

  • John||

    In fairness Biggins, I always though Rand to be a bad writer and her characters one dimensional and boring. I still think that but the last 8 years or so have shown me that if Rand has a problem as a writer it is that she is too realistic in her portrayal of people.

  • robc||

    I started realizing that during the CA rolling blackouts of the early 2000s. It was failure straight from the copper shortage scenes in the book.

  • R C Dean||

    One DOJ message is clear: It has the power to hold financial institutions responsible for the (real, regulatory, or perceived) transgressions of those an institution does business with.

    This is the end point, you know, of the demand by progs and some others that we get rid of limited liability for corporations.

    The argument for holding passive investors like shareholders is that, by dint of providing capital, the shareholders are responsible for what is done with that capital, even though they have no control. This argument applies equally to bondholders and lenders, which catches any bank doing a business loan, and only a small extension of the argument is needed to catch any bank that handles a checking/savings account.

    Once you hold people responsible for things they have no control over, there's no stopping place. Next time you hear anyone arguing that we should get rid of limited liability for shareholders, this is where they are heading whether they know it or not.

  • robc||

    Where is propetiest or whatever his name was?

  • Gadianton||

    One DOJ message is clear: It has the power to hold financial institutions responsible for the (real, regulatory, or perceived) transgressions of those an institution does business with.

    So, by extension, does this mean that the knife salesman is now guilty of murder?

  • JD the elder||

    That's the direction we're moving in. The gun manufacturer is responsible for murders, the bartender is responsible for drunk driving, etc.

  • Paul.||

    The "Chase insider" told Mother Jones that porn star bank closings were part of "routine" banking practice and had "nothing to do with Operation Choke Point."

    That's the problem. Our government can have your ability to pursue happiness choked off as routine practice.

    Also constitutionally protected, obviously, is buying and selling firearms—but businesses selling ammunition and guns are also on a list of potentially high-risk businesses that banks should look out for.

    Serious note:

    I'm actually glad they're shutting down pornstars. This will get the attention of liberals. If they only stuck to ammunition and guns, the whole thing would be waved off as a fake scandal with a bunch of bitter clingers whining about Kenya or something.

  • Bryan C||

    "This will get the attention of liberals."

    Maybe. Lefists trend steadily more Puritan every day. The DOJ is just freeing these porn stars - predominantly exploited young women - from the violence inherent in the system. Freedom is slavery, etc.

  • Anomalous||

    By targetting porn, it became Operation Chicken Choke Point.

  • Paul.||

    le·gal·ism [lee-guh-liz-uhm]

    1.strict adherence, or the principle of strict adherence, to law or prescription, especially to the letter rather than the spirit.
    2.Theology .
    a.
    the doctrine that salvation is gained through good works.
    b.
    the judging of conduct in terms of adherence to precise laws.
    3.( initial capital letter ) (in Chinese philosophy) the principles and practices of a school of political theorists advocating strict legal control over all activities, a system of rewards and punishments uniform for all classes, and an absolute monarchy.

  • ||

    I had to do some in-person banking at Chase earlier this year, and they asked me questions allegedly "required by the government" about my occupation and things like that...that I was 99.99% sure were not in fact required by the government. They tried to say that I hadn't provided the full info now required back when I had initially opened the account. I didn't think that was true then, and now just feel even more suspicious about why they would ask. Unfortunately, everyone else I know has an even shittier banking experience, so bah.

  • Paul.||

    In fairness, without knowing your occupation, how would they know you're not a terrorist?

  • ||

    All they need to know is that nicole is the worst.

  • ||

    But they didn't even ask that!

  • Swiss Servator, CH yeah!||

    They just knew....word is out on the street.

  • ||

    She's a libertarian, therefore....

  • John||

    I have had good experience with USAA. As this shit becomes more common, I imagine credit unions and other private associations that exist outside of the big financial system will get more popular.

    Maybe things have changed but my parents were always members of my Dad's employer's credit union because the credit union didn't fuck with them the way a regular bank did.

  • ||

    Yeah, I realize I am partially hamstringing myself, but it's important for me to have a lot of branches/ATMs nationwide. So. I'm sticking with the devil I know for now, at least, though I would like to tell them to go fuck themselves over this porn shit.

  • R C Dean||

    If you're not needing to deposit cash, USAA is all you need. You can use any ATM, and they refund the fees.

    I've been using USAA for years. Excellent on-line banking service.

  • robc||

    Im sticking with BB&T. Ive had the account since 1997 and they seem less evil than the other big banks.

  • Scruffy Nerfherder||

    We are all under suspicion until proven otherwise.

  • ||

    "robc|5.12.14 @ 11:58AM|#

    If only someone had written a popular novel that shows how government uses the bundle of entangling laws to bend businesses to their will.

    Why hasnt someone written that? Why?

    John|5.12.14 @ 12:05PM|#

    I don't know rob. I mean it is all just so unexpected. We meant well and we had to do something about the evil criminals and terrorists."


    Where is that Bailey chick that wants trigger warnings on everything? The one who thinks her idea won't lead to any kind of authoritarian censorship?

  • some guy||

    Operation Choke Point was initially pitched as a crackdown on web-based payday lending businesses that lend into states that prohibit it.

    Is it normal for the DOJ to use federal authority to enforce state laws?

  • John||

    No it is not.

  • Copernicus||

    1. Operation Chokepoint should be named operation Gag Order when applied to porn stars.

    2. How does any personal account (porn star or not) qualify as a high-risk business account?

    3. As disturbing as this fed power abuse is, more so is the Chase rep who says this is a "routine" Chase practice and not driven by the DOJ.

  • Tonio||

    Uh, I don't think those guys gag.

  • Tonio||

    [I]t can violate the First Amendment so clearly that individual federal officials lose their qualified immunity and can be sued individually for damages...

    There's your pornography, right there. I'll be in my bunk.

  • Robert||

    DOJ sees itself as Snakey or the child? Or both?

  • Elizabeth Nolan Brown||

    Yeah, I suppose that alt-text doesn't make sense without context, but according to Wikimedia Commons, that statue is of the son of Zeus strangling a snake representing evil.

  • jdgalt||

    Targeted, voluntary boycotts are not a bad thing. If the bankers at Chase really feel it's a "routine banking decision" to kick out the porn performers, I'm glad they are saying so out loud, so that people like me who support sexual freedom will know to shun them.

    Indeed, I hate telemarketers myself and would love to find a phone company that blocks them, or enables me to block them.

    The problem with Choke Point, of course, is that it's not voluntary; it's a threat to audit and harass any bank that doesn't kick the targeted people out. That's gangster behavior, has no place in government, and may qualify as a "bill of attainder" forbidden by the Constitution.

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