Issa Accuses DOJ Official of Misleading Congress

Rep. Darrell Issa, R-Calif., accused a top Justice Department official Thursday of misleading Congress about a list of merchant categories that banks have been warned to view with caution.

Issa's hostile questioning of Assistant Attorney General Stuart Delery turned up the political heat in a long-running conflict over the investigation known as Operation Choke Point.

The DOJ-led probe is an effort to stop fraudulent merchants from accessing the mainstream payment system, which they may use to make unauthorized debits from consumers' bank accounts. Since last spring, the Justice Department has sent subpoenas to more than 50 banks and payment processing firms.

The investigation's critics, which include banks, payment processors, and affected merchants, contend that Choke Point is causing many legitimate retailers to lose their bank accounts. Banks are intimidated by the threat of a subpoena, so they are cutting off a wide swath of merchants in an effort to limit their legal exposure, the critics say.

At the center of this controversy is a list of types of merchants that the Federal Deposit Insurance Corp. has deemed "high-risk" — perhaps because they have a high incidence of chargebacks, or because their operations may be illegal in certain states. Examples from the list include ammunition sales, drug paraphernalia, escort services, fireworks sales, gambling, Ponzi schemes, pharmaceutical sales, racist materials, payday loans and tobacco sales.

Delery, who heads the Justice Department's civil division, was called to Capitol Hill twice this week to testify about Operation Choke Point.

In his first appearance, before a House financial services subcommittee on Tuesday, Delery was asked whether the Justice Department created the list of high-risk businesses. He responded, "No, this is not a DOJ list."

But during a separate hearing on Thursday, Issa held up a copy of one of the Justice Department's subpoenas, and he noted that the FDIC's list was included as an attachment to the subpoena.

"Didn't you in fact, by inclusion, associate yourself with the position of the FDIC?" Issa asked Delery. "And didn't you on Tuesday say just the opposite in the Financial Services Committee?"

Delery responded: "Congressman, I don't think that's a complete description of what I said on Tuesday," before Issa cut him off. At the earlier hearing, Delery was not specifically asked about whether or how the Justice Department has used the FDIC's list.

Issa, who chairs the House Oversight Committee, is one of the most vocal and aggressive congressional critics of the Obama Administration.

In recent months he has called for the dismantling of Operation Choke Point, and likened himself to a baseball pitcher throwing brush-back pitches at the federal agencies involved in the probe.

Thursday's hearing was convened by Rep. Spencer Bachus, R-Ala., who chairs the House judiciary subcommittee on regulatory reform.

Bachus, a former chairman of the House Financial Services Committee, noted that subpoenaed banks were asked to provide documents related to merchant customers with chargeback rates as low as 3% in a one-month period.

"That's a pretty wide net, isn't it?" Bachus asked.

"The 3% number comes from some of the information requests. That is not something that we viewed as a threshold for fraud, and is not the basis for a charge," Delery responded.