The DOJ Attacks

By FRANK KEATING
April 24, 2014 7:21 p.m. ET
When you become a banker, no one issues you a badge, nor are you fitted for a judicial robe. So why is the Justice Department telling bankers to behave like policemen and judges? Justice's new probe, known as "Operation Choke Point," is asking banks to identify customers who may be breaking the law or simply doing something government officials don't like. Banks must then "choke off" those customers' access to financial services, shutting down their accounts.

Justice launched the effort in early 2013 as a policy initiative of the president's Financial Fraud Enforcement Task Force, which includes the Federal Deposit Insurance Corp., the Consumer Financial Protection Bureau and other regulatory agencies. Though details are scant—much of the investigation has been conducted in secret—the probe aims to crack down on fraud in the payments system by focusing on banks that service online payday lenders and other services deemed suspicious by the government.

Justice's premise is simple: Fraudsters can't operate without access to banking services, and so the agency is going after the infrastructure that questionable merchants use rather than the merchants themselves. Most of these merchants are legally licensed businesses on a government list of "risky profiles." These include payday outfits and other short-term lenders.

Unfortunately, the strategy is legally dubious. Justice is pressuring banks to shut down accounts without pressing charges against a merchant or even establishing that the merchant broke the law. It's clear enough that there's fraud to shut down the account, Justice asserts, but apparently not clear enough for the highest law-enforcement agency in the land to prosecute.

Banks, which need a reliable and safe payments network to survive, have always worked with law enforcement to fight fraud and even terrorism in the financial system. Banks provide tips to law enforcement when a customer's behavior seems fishy, and they assist in investigations when asked. In the past year alone, banks have filed nearly a million suspicious activity reports with regulators, including suspicions of mortgage fraud, identity theft, counterfeit debit and credit cards, tax evasion and wire-transfer fraud.

But law-enforcement agencies and courts, not banks, are responsible for determining criminal violations. The 1970 Bank Secrecy Act spells out the proper partnership for banks and law-enforcement agencies. The law established record keeping and reporting requirements for banks so that law-enforcement agencies would have the evidence needed to prosecute criminals effectively. That is the division of labor and responsibility envisioned by Congress: drawing upon each other's strengths to fight crime.

Justice is now blurring these boundaries and punishing the banks that help them fight crime. If a bank doesn't shut down a questionable account when directed to do so, Justice slaps the institution with a penalty for wrongdoing that may or may not have happened. The government is compelling banks to deny service to unpopular but perfectly legal industries by threatening penalties. This puts them in a difficult business position.

Bank regulators—particularly the FDIC—have joined in the action, warning banks away from serving more than 22 categories of businesses, including "Get Rich Products," "Ammunition Sales," "Pharmaceutical Sales," "Home Based Charities," and even "As Seen on TV" businesses. Some of these businesses may indeed be risky. But that doesn't justify pre-emptively declaring them all criminals and freezing their access to the payments system.

Operation Choke Point's goal to fight financial fraud is admirable. But forcing banks to make judgments about criminal behavior and then holding them accountable for the possible wrongdoing of others is not a legal or effective way to do so. Banks contribute significantly to the law-enforcement mission and remain committed to helping agencies detect terrorist financing, money laundering and fraud. Justice shouldn't turn that commitment against them.