Attorney General Jeff Sessions’ decision to revoke the Obama-era Cole Memo could be his most substantial policy attack on legal cannabis yet, after a year of somewhat mixed signals on the issue. And indeed, it removes an important set of Justice Department guidelines for a rational approach to cannabis enforcement. This move has signaled to states and industry players that the time has come to institute a new way to handle cannabis questions.
The memo, issued in 2013, laid out certain priorities for federal law enforcement to focus on, suggesting that state-legal cannabis programs which followed these guidelines were unlikely to be prosecuted. These priorities included aspects such as preventing cannabis distribution to minors, keeping revenue out of the hands of otherwise criminal organizations, and preventing cannabis from moving between states.
The Bad News
The new guidelines from Sessions, issued January 4th (three days after California became the largest state yet to legalize adult-use cannabis), direct federal prosecutors in each state to decide how to enforce federal cannabis law. Each state has one or more US attorneys, who lead the enforcement of federal law in their districts. California’s situation is more complicated than most, with 4 districts, each with their own US attorney, who now have full discretion over how to enforce cannabis laws. To make matters worse, many of these US attorneys were recently appointed by Sessions during the administration’s first year. In California’s northern district, which stretches along the coast from Monterey to the Oregon Border, the district’s US attorney resigned the same day Sessions rescinded the Cole Memo. While he claimed the move was unrelated, it was understandably alarming to a district that includes both the Bay area and Humboldt County - which is arguably the cannabis capital of United States.
While most have been silent or vague on the issue, a few US attorneys, such as Massachusetts’s Andrew Lelling, have refused to give assurances that legal cannabis wouldn’t face prosecution.
According to Lelling:
“Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana. As a law enforcement officer in the Executive Branch, it is my sworn responsibility to enforce that law, guided by the Principles of Federal Prosecution.”
Without the Cole Memo, nothing stands between these federal prosecutors and a crackdown on recreational cannabis businesses in both adult-use states. That’s the bad news.
The Good News
Aaron Smith, executive director of the National Cannabis Industry Association, speaking to a gathering of members in Denver a few weeks ago, said that while it’s wise to take the move seriously,
“It’s important to note that this was not a major, substantive shift in policy. U.S. attorneys have prosecutorial discretion around which cases they prosecute — just as they always have.”
In other words, a zealous anti-cannabis US attorney had the power to prosecute cannabis businesses before the Sessions Memo, just as they do now. That’s the first thing to keep in mind. Sessions could have issued a memo telling US attorneys to make cannabis enforcement a high priority. So far, he hasn’t done so. And a few key points highlight reasons why he may not decide to do so.
Importantly, Smith went on to call the move a “huge tactical error” politically, adding:
“(Sessions) did not coordinate with the Department of Treasury, he did not coordinate with anybody in Congress. From the intelligence that we’re receiving from our lobbyists who have been working very closely with the Trump Administration, he did not even inform the White House that he was doing this. He’s on an island.”
In this light, the move makes more sense as a unilateral decision by Sessions. In an election year, with many Republican legislators already vulnerable to challenges from Democrats, including in legal states like California and Colorado, the move seems politically reckless. With Trump’s historically low approval ratings, and unexpected Democratic victories in places like Alabama and Virginia last year, many observers are already speculating that Trump is damaging the Republican brand ahead of a key election.
Embracing the party’s prohibitionist tendencies won’t help matters either. An October survey by the Pew Research Center found that 61 percent of adults in the US support the legalization of cannabis, while a Gallup poll the same month showed 64 percent supported legalization, including 51 percent of Republicans. A majority of Americans have supported legalization since 2013, which demonstrates that public opinion has had a direct impact on policy in recent years. If those numbers don’t seem overwhelming, keep in mind that even older polls from earlier in 2017 showed nearly two thirds of Americans believed the issue of cannabis legalization should be left to the states themselves - short of full federal legalization. Trump himself tapped into these state’s rights sentiments during his Presidential campaign, saying on at least three occasions that he believed legalization should be left up to states, while also speaking strongly in favor of medical cannabis.
While the legal situation for cannabis, taken in a vacuum, is at least as precarious than ever, the political climate still points toward a bright future for the burgeoning industry – arguably even more so since the revoke of the Cole Memo. The outrage among legislators following the Sessions move was broad and bipartisan. Immediately after, Colorado Republican Senator Cory Gardner made a blistering statement against the Sessions decision, adding that he would use his power to block Department of Justice nominees unless the attorney general reverses course.
“Before I voted to confirm Attorney General Sessions, he assured me that marijuana would not be a priority for this administration. Today’s action directly contradicts what I was told, and I am prepared to take all steps necessary, including holding nominees, until the attorney general lives up to the commitment he made to me prior to his confirmation.”
Gardner criticized the move even more saying that it would put thousands of jobs and millions of tax dollars at risk. In fact, he wasn’t alone, even among other members of the Republican party. In the weeks since, many have spoken out against the revoking of the Cole memo, and just recently, 54 members of congress from both parties sent a letter to Trump asking him to direct Sessions to reinstate the memo.
According to the legislators, led by Senator Elizabeth Warren and Representative Jared Polis, the move “puts jobs, small businesses, state infrastructure, consumers, minorities, and patients at risk. This action has the potential to unravel efforts to build sensible drug policies that encourage economic development as we are finally moving away from antiquated practices that have hurt disadvantaged communities.”
Just a week after the Sessions memo, 69 members of the House of Representatives signed a letter calling for a spending bill amendment that would prevent Department of Justice funds from being used to interfere with state-legal cannabis – similar to the existing Rohrabacher-Blumenauer amendment (also known as the Rohrabacher-Farr amendment) that does the same for medical cannabis.
Following the move, four pieces of cannabis reform legislation have already been introduced in the House of Representatives that have enjoyed an influx of new supporters. Even on the legal front, many have pointed out that a widespread crackdown on dispensaries is not likely. US attorneys have a lot on their plate, even just in terms of illicit drug activity, and much of that enforcement relies heavily on cooperation with state authorities. Unilaterally enforcing a widespread crackdown would exhaust their limited resources, and isolate them while provoking further bipartisan outcry.
While many of the statements from these US attorneys have been vague so far, and a few have focused on an intention to enforce federal law in principle, others have indicated that the status quo would remain. The day the memo was revoked, Colorado US Attorney Robert Troyer, who was appointed interim US attorney by Sessions in November, implied little would change:
“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions.”
Most US attorneys were either silent on the issue, or issued vague statements noting their commitment to enforcing federal law. Leafly offers a helpful page to keep track of where your US attorney stands on the issue. It will be updated as information comes in.
It is possible that revoking the Cole memo was part of a grand strategy on the part of Sessions to plan for a crackdown. Perhaps he does indeed have the support of the Trump administration, which plans to cater to the most socially conservative part of its base. Perhaps all of the Justice Department’s US attorney appointments have taken this into account, setting up a network of federal prosecutors ready to shut down an industry that was projected to reach a value of 10 billion dollars by the end of last year. Perhaps it is worth it to Trump to pursue this issue, at the expense of losing already vulnerable seats in the upcoming midterm elections, and a portion of the electorate in 2020.
If this is the case, we are looking at a widespread, if not total, shutdown of legal cannabis in states where it has become legal, or a return to medical cannabis, which still enjoys some legal protections. As demonstrated in the last federal crackdown, this can be accomplished without raids on every single dispensary. Even letters sent to a few landlords of dispensaries proved, at least in 2011, to cause a ripple effect that led many businesses to close.
Within days of the Sessions memo, the entire range of Democratic hopefuls for the 2020 presidential election had unanimously denounced the move, supporting the rights of states to legalize cannabis. In a worst-case scenario outcome, Sessions still likely represents the last gasp of prohibitionist tendencies in American politics.
With all evidence and information considered it seems more and more likely that the revoking of the Cole Memo was a unilateral move by Sessions, who has become out of favor with Trump and under fire from other Republicans, who decided he simply couldn’t be on record as having done nothing as the nation’s most populous state fully legalized cannabis under his watch as attorney general. The move could be a statement from Sessions with little substance behind it – other than the ability to inject uncertainty into the situation. In the meantime, the best thing supporters of legal cannabis can do is to get ready to vote in November. Find out if you live in a district with a competitive race, and then research whether a candidate there is on the right side of the cannabis debate. A pro-cannabis majority in Congress is the best way to protect legal states from Sessions in the short-term, and the best way to reform cannabis law in the long-term.