4. Understand if accounts were closed or services denied historically based on policies and procedures that would not conform with the new rule and updated guidance, and evaluate a scoped review that includes customer complaint data and critically evaluating the impact of SAR filing activity on account terminations; 5. Brief executive management and the board on impacts and risks; the OCC has advised that findings related to debanking activity can impact licensing, Community Reinvestment Act evaluations and acquisitions; 6. Track ongoing state laws imposing heightened fair access standards that may exceed federal requirements. So, what is the likely subject of the DOJ’s investigation? The DOJ subpoenas follow a task force launched by the U.S. Attorney’s Office for the Eastern District of Virginia to combat “illegal debanking,” which the task force defines as the denial of financial services for political views, religious beliefs or lawful activities. “Debanking” determinations may result in enforcement actions if determined by regulators to amount to unlawful discrimination practices in violation of fair lending or civil rights statutes, such as Title VI of the Civil Rights Act of 1964, the Equal Credit Opportunity Act (for credit transactions) and the Fair Housing Act (if related to mortgages). The DOJ also has broad, civil enforcement authority for a variety of underlying criminal (fraud) activity under Section 951 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989. The investigations likely build on preliminary findings released by the OCC last year, which stated the OCC’s position on debanking activities undertaken by nine of the nation’s largest banks. The OCC found that between 2020 and 2023, each institution maintained policies that restricted or escalated review of customers in certain sectors (e.g., oil and gas, coal, firearms, private prisons, payday lending, tobacco, political action committees and digital assets). In most cases, the stated basis was reputational risk or values-alignment criteria rather than documented financial or legal risk. The OCC characterized the decisions as inappropriate distinctions drawn among customers based on lawful business activities. The OCC reported that the same or substantially similar policies were in place at every bank it reviewed and stated that it is working through nearly 100,000 pending consumer complaints to identify further instances of political or religious debanking. In remarks accompanying the rule, Comptroller of the Currency Jonathan Gould stated the ongoing investigation should “shine a spotlight on the actions of agencies and certain banks.” In March 2026, the enforcement perimeter may have extended to payment processing when the FTC issued public warning letters to the largest payment processors, putting them on notice that facilitating member institutions’ debanking practices may itself violate the FTC Act. Judicial and State Law Developments There has not been much occasion for courts to develop precedent on an individual’s “right” to banking services, which exists nowhere in the Constitution or federal statute. The D.C. Circuit Court has previously recognized a due process liberty interest in bank account access in a case brought by payday lender trade associations arising from Operation Choke Point 1.0. And in 2024, in a case brought by the National Rifle Association against the superintendent of the New York Department of Financial Services, the U.S. Supreme Court unanimously held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party, including financial institutions, can violate the First Amendment if used as a means of suppressing disfavored speech. Following the U.S. Supreme Court’s decision, it is now likely considered “clearly established” that a regulator cannot use oversight tools such as rating downgrades, fines, or enforcement to cause an institution to suppress speech protected by the First Amendment through activities such as denying access to banking. There are two pending “debanking” cases in the Southern District of Florida brought by entities affiliated with the Trump family against Capital One and JPMorganChase; neither case has proceeded to a merits determination or resulted in a published opinion. The legal claims raised by the plaintiffs in each case pursue a variety of state law theories only: asserting violations of consumer protection statutes in North Carolina, Nebraska, New Jersey and Minnesota against Capital One, while asserting state law claims of trade libel, Florida’s Unfair and Deceptive Trade Practices Act, enforcement of the Deposit Account Agreement and breach of good faith and fair dealing against JPMorganChase. Whether any of the pleaded theories will hold water, survive motions to dismiss or result in judicial opinions at all (as opposed to arbitrated) remains to be seen. Meanwhile, the states of Florida, Tennessee and Idaho have each enacted fair-access statutes, and several additional states have proposed or have pending similar laws. For institutions operating nationally, this creates a compliance map that cannot be satisfied by a single federal policy, because state-specific notice and documentation requirements must be addressed on a jurisdiction-by-jurisdiction basis. Although similar, the three enacted regimes differ in scope and mechanics. An Era of Fair Access Begins as Debanking Sunsets The momentum is strong, and the path is clear for Congress to codify how access to the banking system is to be determined. Now that “reputational risk” has been sunset, it remains important for institutions to evaluate how operating procedures and account decisions will hold up in the new era of “fair access.” 18 | The Show-Me Banker Magazine
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