The Marijuana Policy Project notes (PDF) another occasion on which Attorney General Eric Holder enunciated a position on medical marijuana that is contradicted by his department's June 29 memo to U.S. attorneys. During a May 10, 2010, hearing before the House Judiciary Committee, Holder had the following exchange with Rep. Jared Polis (D-Colo.):
Polis: I certainly applauded and greet with warmth, representing one of the states that has a medical marijuana law and regulates the sale of marijuana, the [October 2009] memo describing the intent of the DEA and U.S. attorneys. I'd like you to describe the objective processes the DEA and the U.S. attorneys are using in order to make a determination about whether individuals are "in clear and unambiguous compliance with state law." How is that determined?
Holder: People get tired of hearing this, but it is true: It's done on a case-by-case basis. We look at the state laws, what the restrictions are, how the law is constructed, and then there are a number of factors in that memo that are our guides: Is marijuana being sold consistent with state law? Are firearms somehow associated with the sale? There are a variety of factors that are contained within the memo from the deputy attorney general that United States attorneys and assistant United States attorneys are supposed to apply, supposed to consider, when trying to make the determination about whether or not federal resources are going to be used to go after somebody who is dealing in marijuana.
Polis: I certainly was encouraged that the question of whether or not it's consistent with state law would be left to state enforcement actions….[I sent you a letter] with regard to several statements that were made by one of your agents in Colorado, Jeffrey Sweetin [the special agent in charge of the DEA's Denver office], along the lines of, as quoted in the paper: "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building, and we arrest everybody. They're violating federal law. They're at risk of arrest and imprisonment." I would like to ask what steps you would take to make sure that the spirit of the enforcement mechanisms that you outlined to me…are not contradicted by the statements of [DEA] agents that…strike fear into legitimate businesses in the eyes of our states.
Holder: It's incumbent upon me as attorney general to make sure that what we have set out as policy is being followed by all of the components within the Department of Justice….
Polis: Do you agree that statements that could be reasonably taken as threatening to businesses that are legal in our state are, in fact, contrary to your stated policy?
Holder: Well, again, if the entity is, in fact, operating consistent with state law, and is not—does not have any of those factors involved that are contained in that deputy attorney general memo, and given, again, the limited resources that we have and our determination to focus on major traffickers, that would be inconsistent with…the policy as we have set it out.
By contrast, the new memo (PDF) says "commercial operations cultivating, selling or distributing marijuana" are not covered by the Obama administration's policy of prosecutorial restraint—only patients and caregivers (who do not have large enough quantities of marijuana to be worth federal attention in any case). How does the memo reconcile Holder's distinction between bona fide and fake dispensaries with the Justice Department's current position that every dispensary is fair game? By asserting that the two plainly contradictory positions are "entirely consistent."
Here's the video: