Operation Choke Point: When the Department of Justice gets grabby

BY MICHAEL RICONDA

It’s no longer hyperbole to suggest the government might be after your guns.

A previously obscure Justice Department program which aims penalize law-abiding citizens who abide by the “wrong” laws was recently revealed. Though it is not a major item of discussion compared to other dubious Justice Department maneuvers like Fast and Furious, Operation Choke Point is a real effort to quash legal business conducted by “high risk” businesses.

Choke Point was designed as a program to target predatory business practices like payday loans and ponzi schemes as well as illicit online activities such as prostitution and the online sale of pharmaceuticals and drug paraphernalia. The Department does this by legally pressuring banks to close accounts associated with these types of businesses, choking off their access to bank services.

However, like many federal programs, Choke Point is not immune to mission creep. Other “high risk” activities listed include gun and ammunition sales, online gambling and pornography, all activities with the potential for illegality in certain circumstances but otherwise legal.

Even more disturbing is how the program works. Banks are told they must comply or they will be held criminally responsible for the actions of the supposed lawbreakers. Instead of confirming illegal activities are underway, the DoJ simply strong arms banks to financially starve whoever they deem to be guilty by association. No formal charges are necessary to force bankers’ hands and freeze the accounts of those who have not even been convicted of a crime.

In a sense, Choke Point is the big brother to a practice known as asset forfeiture, where suspects may have cash, cars, homes and other property seized merely on suspicion they have been used in the commission of a crime. Asset forfeiture is often use to cut criminal enterprises off from their cash, but they also have the unsavory side effect of denying clean money to businesses which might have merely appeared suspicious because they, for example, deal primarily in cash or make small, repeated bank deposits.

Choke Point does not actually seize funds, but it can be just as destructive-and just as alarming. The issue had seen some sporadic reporting early in 2014, particularly after U.S. Rep. Darrel Issa (R-CA) and U.S. Rep. Jim Jordan (R-OH) issued a letter to Attorney General Eric Holder demanding more information on the program.

However, the controversy blew up in early May when a number of pornographic actors reported Chase Bank had closed their accounts due to their line of work. Chase Bank spokespeople and industry insiders reported Choke Point had nothing to do with the closure, but pornographic actress Tegan Presley stated she was told her account was closed because it was “high risk.” Others have also come forward and a number of adult industry personalities are now calling for a boycott on Chase.

Since then, the program received renewed scrutiny, with gun rights advocates entering the fray. According to NRANews, incidents have already occurred where gun vendors might have been targeted.

“In addition to these concerns, NRA is aware of episodes in which banks have severed their relationships with customers in the firearm industry, as well as the policies of various online services – such as Google Shopping, eBay, Craigslist, and PayPal–to refuse to host listings for, or process sales of, firearms or ammunition.”

Choke Point’s targeting of online gun and ammo retailers is presumably meant to prevent sales of arms to criminals or people in states with strict gun control laws, but the potential for overreach is evident in the apparent guilty-until-proven-innocent strategy the program employs. Even assuming the deliberate singling out of arms retailers is not a deliberate offensive against gun vendors, its chilling effect on the industry is difficult to ignore.

Given the unconstitutionality of targeting specific legal industries for political purposes, the legality of the program is questionable. Hans Bader of the Competitive Enterprise Institute cited the recent case of Kole v. Norridge, a challenge to a local Illinois gun control ordinance, to argue undue restriction on gun vendors might constitute a Second Amendment violation.

“…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,” Baer wrote. “So there are serious constitutional issues at stake here. Yet I see little legal commentary on the subject so far.”

The Department of Justice defended the program in a May 7 memo, but only in reference to financial schemes, not legal gun sales. They offered the example of Four Oaks Bank, which was compelled to cooperate with the DoJ to clamp down on a third-party payment processor, as an instance where the program yielded results.

“Of course, we recognize that most of the businesses that use the banking system are not fraudsters,” The release stated. “We’re committed to ensuring that our efforts to combat fraud do not discourage or inhibit the lawful conduct of these honest merchants. Our goal in investigations like Four Oaks is simply to enforce the laws that make the financial marketplace work for consumers.”

The words seem to be an empty platitude, especially from Holder’s Justice Department. As recently as this year, Holder told a House appropriations subcommittee he was exploring possibilities of restricting gun use only to a registered owner through fingerprinting or an electronic bracelet. Years earlier in 1995, he explicitly suggested aggressive anti-gun public campaigns as a means to change social mores and prevent gun ownership.

“We have to be repetitive about this,” Holder said during a recorded CSPAN2 conference. “We need to do this every day of the week, and just really brainwash people into thinking about guns in a vastly different way.”

Those are the exact words he used. If it was anybody but Holder running the show, one might argue this was not politically-motivated. Perhaps it would have been overzealous subordinates who sought to usurp the role of judge and jury.

Sadly, that is not the case. Are we to believe Holder will not abuse a program already designed to financially starve gun retailers without the benefit of a trial or evidence? It is a scary prospect for gun rights advocates and a tempting one for the ardently anti-gun Attorney General.